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

________________ No. 98-1148

________________ Ray W. Burroughs, * Appellant, *

v. * District Court for the City of Springfield, * Appellee. * *

* Appeal from the United States

* Western District of Missouri.

*

________________ Submitted: September 21, 1998 Filed: December 28, 1998

________________ Before LOKEN, LAY, and HANSEN, Circuit Judges.

________________ HANSEN, Circuit Judge. Ray Burroughs, a former police recruit, brought this disability discriminatio n suit ag ainst his former employer, the City of Springfield. He now appeals the district court's grant of sum

mary judgment to the City, arguing that material questions of fact 1 exist concerning whether the City discrim inated 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 with in 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 i n 1990. He was hired
as a police re cruit for the City of Springfield in 1995, after notifying the City of hi s diabet ic condition and assuring the City that his condition was under control

. Burroughs underwent a preempl oyment 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 becom e 2 disor ientedand dysfunctional while on duty, and necessitating emergency medica l
care. Foll owing these episodes, the City placed Burroughs on internal duty an d
r e quired another medical evaluation. On January 11, 1996, the evaluating physician, Dr. La rry E. Koppers, reviewed Burroughs' condition and the records of his recen t di abetic episodes. Dr. Koppers concluded it was inappropriate for Burroughs t o maintain a position requiring him to carry a gun, because he "could conceivably b e dangerous to the public" during an on-duty diabetic episode. (Appellant's App. a t 12 0.) Noting that it is possible for Burroughs to learn to control the episodes by th e careful timing of meals and activities, Dr. Koppers su ggested that the case be reviewed again after a period of time.3

The C ity then removed Burroughs from active duty and sent him a letter o n February 2, 1996, effectively asking him to take a voluntary demotion or to resign

. The reason for this action was outlined as follows:

Bec ause of the situations that happened on October 18, 1995, an d December

4, 1995, the City has a responsibility to assess your physical condition for the p osition of Police Officer. To assist the City in making a determ ination, with your consent, we enlisted the aid of Dr. Larry E

. Kopp ers, MD. . . . Dr. Koppers' medical evaluation determined that i t 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 i n favoro f the City, concluding that Burroughs failed to state a claim of disability di scriminationunder the ADA because he was not terminated "because of" hi s disability, but rather because he failed to control his controllable disease. Burroughs appeals.

II.

We r eview the district court's grant of summary judgment de novo, using th e same standards as the district c ourt. Young v. Warner-Jenkinson Co. , 152 F.3d 1018, 1021 ( 8th Cir. 1998). "Summary judgment is proper if the evidence, viewed in th e light most favorable to the nonmoving party, demonstrates that no genuine issue o f material fact exists and that the moving party is entitled to judgment as a matter o f 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 a n individual." 42 U.S.C. § 12112(a). In essence, to state a claim under the statute, the plai ntiff must demonstrate that he has a disability as defined in the ADA; that he i s qua lified to perform the essential functions of the job at issue, either with or withou t reasonable accommodation; and that "be cause of" his disability, he suffered an adverse employme nt

action. Gutridge v. Clure , 153 F.3d 898, 900 (8th Cir. 1998); see als o Ben son v. Northwest Airlines, Inc. , 62 F.3d 1108, 1112 (8th Cir.1995); Wooten v

. Farmland Fo ods , 58 F.3d 382, 385 (8th Cir.1995). In this case, the parties do no t 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 w ere not qualified to drive school buses). Because these issues are not disputed, we will not discuss them. Instead, the di spute 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 empl oyment 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 gui dance, however, from the Seventh Circuit, which has addressed a similar factua l 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 polic e officer, kn owing he was a diabetic but believing he "could monitor his medica l condition sufficiently to allow him to per form the duties of a patrol officer." Id. at 666. Siefken f ailed 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 Villag e terminated Siefken and did not give him a second chance toprove he could successfully5

control his disease. Id. at 665, 666-6 7. Siefken brought a disability discrimination suit under the ADA, but the district court di smissed the case for failure to state a claim. Id. at 666 . The Seventh Circuit affirmed, observing that the Village fired Siefken no t "becau se of" his disability, but because he failed to control a controllable disease. Id. at 667. Alth ough Siefken was capable of performing the job without accommodation, his f ailure 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 pr esent case, the district court followed the reasoning of Siefken , and we find it persuasive as well. Burroughs does not dispute that he has a controllabl e disabi lity. At the time he was hired as a police recruit, Burroughs himself assured the City that his diabetes was under control. A preemployment medical evaluatio n indicatedthat Burroughs was capable of performing the job with no limitations. Yet, the un disputed 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 po lice recruit, the City sought another medical evaluation, which indicated tha t Burroughs s hould not carry a weapon until he could successfully control his disease

. It is leg itimate for the City to expect and require that patrol officers keep themselve s functional and alert at all times while on duty. S ee id. at 666. Burroughs failed to meet this legitimate expectation on two occasions, and the ADA does not require the City to pr ovide him another chance to try to improve his diabetes monitoring techniqu e while on duty as a patrol officer. See id. at 666-67. Burroughs a rgues 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

Atone point , Dr. Koppers stated his belief that Burroughs "can perform [the] dutie s listed as a police officer." ( Id. ) These isolated comments do not create a question of material fac t, because Burroughs has taken them out of context. These statements are taken from Dr. Koppers' initial report dated January 2, 1996, before he had reviewe d 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 th e 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 reevaluatin g Burroughs, quit

e plainly states Dr. Koppers' opinion that while Burroughs can learn to control hi s disease, he should not be in a position to carry a weapon until he has hi s 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 episo des resulted from changes in his eating schedule. His own eating schedule is a matter wit hin 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 nothin g more than a "knee-jerk" reaction based on an "ignoran[t] and baseless fear" (Appellant's B r . 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 th reat" 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 requirin g consideration of factors such as the duration of the risk, the nature and severity of the potential harm, and the likeliho od 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 thi s case agreed that Burroughs was a qualified individual so the "direct threat" inquiry i s not e xactly on point. Nevertheless, a "direct threat" assessment may "be based on a reasonable medical judgment th at relies on the most current medical knowledge and/or7

the best av ailable objective evidence." 29 C.F.R. § 1630.2(r); see also , Bragdon v

. Abb ott , 118 S. Ct. 2196, 2210 (1998) (noting in a case under the publi c accommodations chapter of the ADA that "the risk assessment must be based o n medical or other o bjective evidence"). A risk must be significant to constitute a direct threat. See Bragdon , 118 S. Ct. at 2210. The City's decision to remo ve Burroughs from active patrol duty was made only after Bu rroughs suffered two hypoglycemic episodes during which Burroughs faile d to remain alert and functional while on duty, and the City based the decision on a recent medic al evaluation by Dr. Koppers, a diabetes specialist. The City's letter t o Burr oughs--outlining his option of resigning or choosing possible continue d employme nt

in a demoted capacity--both referred to and relied on Dr. Koppers ' reasonab le medical judgment assessing Burroughs' recent on-duty episodes. Dr

. Koppers concluded that Burroughs "could conceivably" be a dan ger to himself or others andshould not carry a weapon until he is able to function without significant diabetic episo des. ( See Appellant's App. at 86, 120.) Burroughs takes issue with the allege d spe culative nature of this opinion, but neither the City nor the doctor relied o n speculation. The uncontroverted facts demonstrate that Burroughs had recentl y suffered two significant hypoglycemic episodes while on duty, proving he was no t consistently controlling his disease as he had represented at the outset. Fortunately, no harm occurred to Burroughs or any other s during the episodes, but the risk of an armed patrol of ficer being unable to function in an emergency situation is not a risk we ar e prepar ed to force a police department to accept. The inherent and substantial risk o f seriou s harm arising from such episodes, given the nature of police work, is self

evident. 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 tw o occasions to keep himself func tional and alert on the job. Because Burroughs failed to8

state a c laim, we need not reach his arguments that he was entitled to a reasonabl e accommodation. We adopt the reasoning of the Seventh Circuit in Siefkenand "only hold that when an employee knows that he is afflicted with a disability, needs n o accommodationfrom his employer, and fails to meet the employer's legitimate jo b
ex pectations, due to his failure to control a controllable disability, he cannot state a cau se of action under the ADA." 65 F.3d at 667 (internal quotations and citatio n omitted).

III. Accordingly, we affirm the judgment of the district court. A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT