The Honorable Russell G. Clark, United States District Judge for the 1

Western District of Missouri. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-1148

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Ray W. Burroughs, *

Appellant, *

v. * District Court for the

City of Springfield, *

Appellee. *

*

* Appeal from the United States

* Western District of Missouri.

*

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Submitted: September 21, 1998

 Filed: December 28, 1998

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Before LOKEN, LAY, and HANSEN, Circuit Judges. 

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HANSEN, Circuit Judge.

Ray Burroughs, a former police recruit, brought this disability discrimination

suit against his former employer, the City of Springfield. He now appeals the district

court's grant of summary judgment to the City, arguing that material questions of fact 1

exist concerning whether the City discriminated against him "because of" his disability
"Hypoglycemia is an abnormally low concentration of glucose in the blood 2

which may lead to tremulousness, cold sweat, headache, hypothermia, irritability,

confusion, hallucinations, bizarre behavior, and ultimately convulsions and coma." 

Wood v. Omaha Sch. Dist., 25 F.3d 667, 668 n.3 (8th Cir. 1994) (citing Dorland's

Illustrated Medical Dictionary 804 (27th ed. 1988)). 

2

within the meaning of the Americans with Disabilities Act (ADA). See 42 U.S.C. §

12112(a). We affirm.

I. 

The material facts of this case are uncontested, and the district court stated them

largely as follows. Ray Burroughs was diagnosed with diabetes in 1990. He was hired

as a police recruit for the City of Springfield in 1995, after notifying the City of his

diabetic condition and assuring the City that his condition was under control.

Burroughs underwent a preemployment physical examination, and the doctor reported

that Burroughs was able to work with no limitations. While serving as a police recruit,

Burroughs suffered two diabetic hypoglycemic episodes, causing him to become

2

disoriented and dysfunctional while on duty, and necessitating emergency medical

care. Following these episodes, the City placed Burroughs on internal duty and

required another medical evaluation. On January 11, 1996, the evaluating physician,

Dr. Larry E. Koppers, reviewed Burroughs' condition and the records of his recent

diabetic episodes. Dr. Koppers concluded it was inappropriate for Burroughs to

maintain a position requiring him to carry a gun, because he "could conceivably be

dangerous to the public" during an on-duty diabetic episode. (Appellant's App. at

120.) Noting that it is possible for Burroughs to learn to control the episodes by the

careful timing of meals and activities, Dr. Koppers suggested that the case be reviewed

again after a period of time.
3

The City then removed Burroughs from active duty and sent him a letter on

February 2, 1996, effectively asking him to take a voluntary demotion or to resign.

The reason for this action was outlined as follows: 

Because of the situations that happened on October 18, 1995, and

December 4, 1995, the City has a responsibility to assess your physical

condition for the position of Police Officer. To assist the City in making

a determination, with your consent, we enlisted the aid of Dr. Larry E.

Koppers, MD. . . . Dr. Koppers' medical evaluation determined that it

would be inappropriate to have you maintain a position of carrying a

weapon and that you could conceivably be dangerous to the Public, until

such time that you are able to function without significant hypoglycemic

episodes.

(Id. at 86.) The City proposed a plan for his possible continued employment in a

demoted capacity, but Burroughs chose to resign.

Burroughs brought this ADA suit, claiming that the City discriminated against

him on the basis of his disability. The district court granted summary judgment in

favor of the City, concluding that Burroughs failed to state a claim of disability

discrimination under the ADA because he was not terminated "because of" his

disability, but rather because he failed to control his controllable disease. Burroughs

appeals. 

II. 

We review the district court's grant of summary judgment de novo, using the

same standards as the district court. Young v. Warner-Jenkinson Co., 152 F.3d 1018,

1021 (8th Cir. 1998). "Summary judgment is proper if the evidence, viewed in the

light most favorable to the nonmoving party, demonstrates that no genuine issue of

material fact exists and that the moving party is entitled to judgment as a matter of

law." Id.; Fed. R. Civ. P. 56(c).
4

The ADA prohibits an employer who is a "covered entity" from discriminating

"against a qualified individual with a disability because of the disability of such an

individual." 42 U.S.C. § 12112(a). In essence, to state a claim under the statute, the

plaintiff must demonstrate that he has a disability as defined in the ADA; that he is

qualified to perform the essential functions of the job at issue, either with or without

reasonable accommodation; and that "because of" his disability, he suffered an adverse

employment action. Gutridge v. Clure, 153 F.3d 898, 900 (8th Cir. 1998); see also

Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir.1995); Wooten v.

Farmland Foods, 58 F.3d 382, 385 (8th Cir.1995). In this case, the parties do not

dispute that the City is a "covered entity," that Burroughs has a "disability" as defined

in the ADA, or that Burroughs was "a qualified individual" under the ADA. 42 U.S.C.

§ 12112(a). But see Wood, 25 F.3d at 669 (affirming district court's finding that

insulin-using diabetics were not qualified to drive school buses). Because these issues

are not disputed, we will not discuss them. Instead, the dispute here centers on whether

the City took the adverse employment action "because of" Burroughs' disability. See

id.

The district court concluded that Burroughs failed to demonstrate that the City's

adverse employment action was taken because of Burroughs' disability, and therefore,

he failed to state a claim under the ADA. For the reasons that follow, we agree. 

Our circuit has not yet addressed the precise question raised in this case. We take

guidance, however, from the Seventh Circuit, which has addressed a similar factual

scenario. See Siefken v. Village of Arlington Heights, 65 F.3d 664, 665-66 (7th Cir.

1995). The Village of Arlington Heights had hired Siefken as a probationary police

officer, knowing he was a diabetic but believing he "could monitor his medical

condition sufficiently to allow him to perform the duties of a patrol officer." Id. at 666.

Siefken failed to monitor his condition properly on one occasion, and he suffered a

diabetic reaction while on duty and driving a patrol car. Id. at 665. The Village

terminated Siefken and did not give him a second chance to prove he could successfully
5

control his disease. Id. at 665, 666-67. Siefken brought a disability discrimination suit

under the ADA, but the district court dismissed the case for failure to state a claim. Id.

at 666. The Seventh Circuit affirmed, observing that the Village fired Siefken not

"because of" his disability, but because he failed to control a controllable disease. Id.

at 667. Although Siefken was capable of performing the job without accommodation,

his failure to control his disease resulted in a failure to fulfill his employer's legitimate

job expectations; accordingly, he failed to state an ADA claim. 

In the present case, the district court followed the reasoning of Siefken, and we

find it persuasive as well. Burroughs does not dispute that he has a controllable

disability. At the time he was hired as a police recruit, Burroughs himself assured the

City that his diabetes was under control. A preemployment medical evaluation

indicated that Burroughs was capable of performing the job with no limitations. Yet,

the undisputed evidence indicates that on two on-duty occasions, he suffered a severe

diabetic episode which rendered him unable to function on the job. Additionally, the

undisputed evidence indicates that the episodes were caused by nothing more than poor

timing of his meals and activities. Before removing Burroughs from his position as a

police recruit, the City sought another medical evaluation, which indicated that

Burroughs should not carry a weapon until he could successfully control his disease.

It is legitimate for the City to expect and require that patrol officers keep themselves

functional and alert at all times while on duty. See id. at 666. Burroughs failed to meet

this legitimate expectation on two occasions, and the ADA does not require the City

to provide him another chance to try to improve his diabetes monitoring technique

while on duty as a patrol officer. See id. at 666-67. 

Burroughs argues that the district court erred in relying on Siefken, because a

question of fact remains in the present case concerning whether Burroughs was at fault

for his on-duty hypoglycemic episodes. Burroughs attempts to raise a question of fact

from Dr. Koppers' statements that he was "extremely compliant in diet" and that there

was "good compliance" with the multiple insulin regimen. (Appellant's App. at 121.)
6

At one point, Dr. Koppers stated his belief that Burroughs "can perform [the] duties

listed as a police officer." (Id.) These isolated comments do not create a question of

material fact, because Burroughs has taken them out of context. These statements are

taken from Dr. Koppers' initial report dated January 2, 1996, before he had reviewed

the medical records of Burroughs' latest on-duty episodes. This initial report outlined

the history of Burroughs' illness and the reason for the referral, and closes with the

statement, "will review records and send a letter." (Id.) In contrast, Dr. Koppers' letter,

written on January 11, 1996, after reviewing the latest reports and reevaluating

Burroughs, quite plainly states Dr. Koppers' opinion that while Burroughs can learn to

control his disease, he should not be in a position to carry a weapon until he has his

disease under control and is able to avoid hypoglycemic episodes. Dr. Koppers' earlier

statements do not contradict this conclusion because they were written before the latest

evaluation. Furthermore, in Burroughs' own statement and affidavit, he admits that the

episodes resulted from changes in his eating schedule. His own eating schedule is a

matter within his control. Burroughs has not identified a material question of fact that

precludes summary judgment. 

Burroughs also argues that the City removed him from active duty on nothing

more than a "knee-jerk" reaction based on an "ignoran[t] and baseless fear" (Appellant's

Br. at 13) that he might be a danger to the public. He asserts that neither the City nor

the district court considered the requisite factors to determine whether he was a "direct

threat" to the public as provided in the regulations. See 29 C.F.R. § 1630.2(r) (1998)

(defining "direct threat" as a "significant risk of substantial harm" and requiring

consideration of factors such as the duration of the risk, the nature and severity of the

potential harm, and the likelihood and imminence of the potential harm). We disagree.

While an individual may not be qualified for a position if that individual poses a "direct

threat" to the health or safety of others, see 42 U.S.C. § 12113(b), the parties in this

case agreed that Burroughs was a qualified individual so the "direct threat" inquiry is

not exactly on point. Nevertheless, a "direct threat" assessment may "be based on a

reasonable medical judgment that relies on the most current medical knowledge and/or
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the best available objective evidence." 29 C.F.R. § 1630.2(r); see also, Bragdon v.

Abbott, 118 S. Ct. 2196, 2210 (1998) (noting in a case under the public

accommodations chapter of the ADA that "the risk assessment must be based on

medical or other objective evidence"). A risk must be significant to constitute a direct

threat. See Bragdon, 118 S. Ct. at 2210. 

The City's decision to remove Burroughs from active patrol duty was made only

after Burroughs suffered two hypoglycemic episodes during which Burroughs failed

to remain alert and functional while on duty, and the City based the decision on a recent

medical evaluation by Dr. Koppers, a diabetes specialist. The City's letter to

Burroughs--outlining his option of resigning or choosing possible continued

employment in a demoted capacity--both referred to and relied on Dr. Koppers'

reasonable medical judgment assessing Burroughs' recent on-duty episodes. Dr.

Koppers concluded that Burroughs "could conceivably" be a danger to himself or others

and should not carry a weapon until he is able to function without significant diabetic

episodes. (See Appellant's App. at 86, 120.) Burroughs takes issue with the alleged

speculative nature of this opinion, but neither the City nor the doctor relied on

speculation. The uncontroverted facts demonstrate that Burroughs had recently

suffered two significant hypoglycemic episodes while on duty, proving he was not

consistently controlling his disease as he had represented at the outset. Fortunately, no

harm occurred to Burroughs or any others during the episodes, but the risk of an armed

patrol officer being unable to function in an emergency situation is not a risk we are

prepared to force a police department to accept. The inherent and substantial risk of

serious harm arising from such episodes, given the nature of police work, is selfevident. The City's decision to remove Burroughs from duty was appropriately based

on objective evidence and reasonable medical judgment. 

We conclude that Burroughs failed to state a claim under the ADA because he

was capable of performing the job without accommodation, yet he failed on two

occasions to keep himself functional and alert on the job. Because Burroughs failed to
8

state a claim, we need not reach his arguments that he was entitled to a reasonable

accommodation. We adopt the reasoning of the Seventh Circuit in Siefken and "only

hold that when an employee knows that he is afflicted with a disability, needs no

accommodation from his employer, and fails to meet the employer's legitimate job

expectations, due to his failure to control a controllable disability, he cannot state a

cause of action under the ADA." 65 F.3d at 667 (internal quotations and citation

omitted). 

III.

Accordingly, we affirm the judgment of the district court. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT