IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________________________

No. 98-50290

_______________________________________

THOMAS R. GONZALES,

Plaintiff-Appellant,

versus

CITY OF NEW BRAUNFELS, Texas, Acting by

and through the New Braunfels Police Department,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________________________________________________ May 20, 1999

Before JOLLY, WIENER, and PARKER, Circuit Judges.

WIENER, Circuit Judge:

Plaintiff-Appellant Thomas Gonzales appeals the district

court’s grant of summary judgment dismissing his employment

discrimination claims against the City of New Braunfels on the

alternative grounds that Gonzales either (1) is not disabled or (2)

is not qualified to perform the essential functions of a police

officer, with or without accommodation. Following a d e novo review

of the record, we affirm.

I

.

FACTS AND PROCEEDINGS1 The record indicates that Gonzales experienced difficulties

reloading and clearing malfunctions with his firearm.

2 Al though it is unclear from the record whether Gonzales

passed or failed the driving requalification, it appears, at the

very least, that he had difficulty with certain components of the

test, including (1) completion of the three-lane decision test, and

(2) completion of the driving course in the minimum required time.

2 Gonzales was hired as an officer with the City of New Braunfels

Police Department (“NBPD” or the “department”) in April 1982

.

Approximately two years later, in May 1984

, he was diagnosed with

insulin-dependent diabetes mellitus. Despite this diagnosis,

Gonzales remained with the force for the next ten years,

successfully performing all of the duties of his job. During the

winter of 1995 and the fall of 1996, however, Gonzales failed his

routine firearms requalification test 1 and allegedly faile d his

driving requalification test as well. 2 Pursuant to the department’s

written operating procedures, Police Chief Ray Douglas initiated a

disability investigation, a part of which required Gonzales to

undergo a physical examination. Based on an individualized

assessment of Gonzales’s condition, Bill Davis, M.D. determined that

Gonzales suffered from severe diabetic neuropathy. This condition,

concluded Dr. Davis, caused Gonzales to experience dexterity problems

in his hands and numbness in his feet, limiting his ability to handle

firearms safely and drive vehic les to police specifications. In

March 1996, after receivin g Dr. Davis’s report, the department placed

Gonzales on sick leave for six months, at the end of which time he

was required by the department to take early medical retirement.3 Melton v. Teacher's Ins. & Annuity Ass'n of America

, 114 F.3d

557, 559 (5th Cir.1997).

4 River Pro d. Co., Inc. v. Baker Hughes Prod. Tools, Inc. , 98

F.3d 857, 859 (5th Cir.1996) (citing F ED .R.C IV .P. 56(c)).

3 Gonzales filed a complaint with the EEOC and was issued a

right-to-sue letter. Thereafter, Gonzales timely filed this action

against the department in federal district court, alleging violations

of the Americans with Disabilities Act (“ADA” or the “Act”). In

response, the department filed a motion for summary judgment which,

as noted a bove, the district court granted o n the alternative

grounds that Gonzales either (1) is not disabled or (2) is not

qualified to perform the essential functions of a police officer,

with or without an accommodation. Gonzales now appeals, seeking

reversal.

II.

ANALYSIS

A. Standard of Review

We review a grant of summary judgment de novo

, applying the

same standard as the district court. 3 Summary judgment is

appropriate when the evidence, viewed in the light most favorable

to the nonmoving party, presents no genuine issue of material fact

and shows that the moving party is entitled to judgment as a matter

of law. 4

B. The ADA

The ADA makes it unlawful for an employer to discriminate5 42 U.S.C. § 12112(a)(1997).

6 Talk v. Delta Airlines, Inc. , 165 F.3d 1021, 1024 (5th Cir.

1999).

7 42 U.S.C. § 12102(2)(A)(1997) . Also included in the ADA’s

defi nition of “disability” are (1) having a record of a

substantially limiting impairment and (2) being regarded as having

such an impairment. Id. at § 12102(2)(B)-(C).

8 29 C.F.R. § 1630.2(j)(2)(1998).

4 against an e mployee who is a “qualified individual with a

disability” because of that in dividual’s disability. 5 To prevail

on a claim under the Act, a plaintiff must prove that (1) he has a

“disability,” (2) he is “qualified” for the position in which he

seeks employment, and (3) he was “discriminated” agains t solely

because of his disability. 6

1. Insulin Dependent Diabetes as a Disability

A “disabilit y” is “a physical or mental impairment that

substantially limits one or more of the major life activities.” 7

The ADA defines neither "substantially limits" no r "major life

activities." In the agency regulations promulgated to implement

the Act, however, the EEOC sets forth the factors to be considered

in determining whether an i mpairment is substantially limiting:

(1) the nature and severity of the impairment, (2) its duration or

expected duration, and (3) its actual or expected permanent or

long-term impact. 8 “Major life activities,” as defined in these

regulations, are “those basic activities that the average person in9 29 C.F.R. Pt. 1630 App. § 1630.2(i)(1998).

10 29 C.F.R. § 1630.2(i)(1998).

11 Id. at § 1630.2(j)(3)(i).

5 the general population can perform with little or no difficulty,” 9

and include such functions as “caring for oneself, performing

manual tasks, walking, seeing, hearing, speaking, breathing,

learning, and working." 10

The department argues that Gonzales is not disabled because,

when his diabetes is controlled with insulin, he is fully able to

care for himself, as well as perform most of the other essential

life functions specified in the regulations. The only function in

which Gonzales is limited, argu es the department, is the

performance of particular manual tasks, including operating a motor

vehicle to police specifications and safely handling a firearm.

Unfortunately, the department notes, performance of these tasks is

an indispensable part of being a police officer. The department

argues that, because (1) a person’s “inability to perform a single,

particular job does not constitute a substantial limitation in the

major life activity of working,” 11 and (2) Gonzales has offered no

evidence of a general incapacity to work, he has failed to raise a

genuine issue of material fact as to whether he is disabled.

The department’s argument, as facially logical as it may

appear, is suspect because it is premised on the assumption that

Gonzales’s diabetes should be considered in its mi tigated —— in12 152 F.3d 464 (5th Cir. 1998).

13 29 C.F.R. Pt. 1630 App. § 1630.2(j)(1998).

14 See Murphy v. United Parcel Serv.

, 141 F.3d 1185 (10th Cir.

1998), cert granted , 119 S.Ct. 790 (1999)(No. 97-1992); Sutton v.

United Air Lines, Inc.

, 130 F.3d 893 (10th Cir. 1997), cert.

granted , 119 S.Ct. 790 (1999)(No. 97-1943).

6 this case, medicated

—— state. In W ashington v. HCA Health Servs.

of Texas, Inc.

, 12 however, we held that, in determining whether an

individual is disabled, courts should consider a serious

impairment, such as diabetes, in its unmitigated state. An

insulin-dependent diabetic who is depri ved of insulin will lapse

into a coma. 13 Hence, applying the standard set forth in

Washington

, it is clear beyond peradventure that, in its

unmitigated state, Gonzales’s diabetes substantially limits one or

more major life activities.

Despite our holding in Wa s hington

, however, the question

whether courts shou ld consider mitigating measures in making

disability de terminations is still up for debate. Recently, the

Supreme Court granted certiorari and heard oral argument in two

cases that implicate precisely this issue. 14 As the Supreme Court’s

rulings in these cases will not be known until later this term, and

as we find other issues dispositive in the instant case, we elect

to bypass the question whether Gonzales is disabled within the

meaning of the Act, making resolution of the mitigated/unmitigated

issue unnecessary. Instead, we assume a rguendo tha t Gonzales is

disabled and turn to the question of his qualification for the job.15 29 C.F.R. § 1630.2(m)(1998).

16 42 U.S.C. § 12111(8)(1997); 29 C.F.R. § 1630.2(m)(1998).

17 At some point prior to Gonzales’s retirement, the position

of evidence technician was retitled “Community Relations Officer.”

Because both parties and the district court refer to the position

using its previous title, we too use the former title.

18 42 U.S.C. § 12112(b)(5)(A)(1997).

7 2. Qualified Individual with a Disability

A “qualified individual with a disability” is a disabled

person who “satisfies the requisite skill, experience, education

and other job-related requirements of the employment position [he]

holds or desires” 1 5 and who, “with or without reasonable

accommodation, can perform the essential functions” of that job. 16

Given his deteriorating medical condition, Gonzales does not argue

that without accommodation he is qualified to perform the essential

functions of a police officer, such as driving and handling a

weapon. Rather, he contends, there is a genuine issue of material

f act as to whether the department could have accommodated his

physical limitation s by either (1) giving him the opportunity to

retest on both his firearms and driving tests or (2) reassigning

him to the position of evidence technician. 17

Under the ADA, if an employee proves that his employer has

failed to make reasonable accommodations to the employee’s “known

physical o r mental limitations,” the employer will be deemed to

have “discriminated,” unless it can show that accommodation would

impose “undue hardship on the operation” of its business. 188

(a) Retesting

Gonzales first argues t hat the department could have

accommodated his physical limitations by allowing him to retake his

firearms and driving exams. In support of this position, Gonzales

relies on the deposition testimony of Police Chief Douglas to the

effect that officers are routinely given more than one chance to

meet their certification requirements. Gonzales claims that, even

though he was told that he would be permitted to retest, he was, in

fact, never afforded the opportunity to do so.

Based on a review of the record, we find Gonzales’s assertions

regarding the NBPD’s retesting practices questionable at best.

Although Chief Douglas did testify that examine rs tend to “work

with” the officer on the day of his testing in an effort to help

him retain qualification, the Chief also indicated that it is not

the department’s general practice to allow officers to return on a

subsequent day for retesting. Chief Douglas did testify, however,

that it was his understanding that, in the instant case, Gonzales

had in fact been permitted to return to the shooting range on a

second occasion but that he had failed the firearms certification

test on that day too.

Be that as it may, we conclude that, even if Gonzales is

correct in asserting that the NBPD should have but did not allow

him to retest, there is no genuine issue of material fact as to

whether he is capable of performing all essential functions of a19 See Chandler v. City of Dallas , 2 F.3d 1385, 1395 (5th Cir.

1993); Daugherty v. City of El Paso

, 56 F.3d 695, 698 (5th Cir.

1995).

20 See Kapc he v. City of San Antonio , No. 98-50345 (on remand

for consideration of this issue).

9 police officer. Pretermitting consideration of firearms

proficiency, we observe that, under the current law in this

circuit, a driver w ith insulin-dependent diabetes poses a direct

threat to the health and safety of others as a matter of law. 19 As

it is undisputed that driving is an essential function of every

NBPD police officer, Gonzales is not qualified for the position in

the absence of an accommodation that will eliminate the inh erent

safety risk that his driving poses. And, as Gonzales cannot show

that retesting would make him a safer driver, given his neuropathy,

such an accommodation, i.e., rete sting, cannot be considered

reasonable under the Act.

We recognize that, in light of changes to the federal

regulations on which our per se rule was based, as well as possible

advancements in medical technology, t he blanket exclusion of

insulin-dependent diabetics from positions that require driving may

no longer be viable. 20 Nevertheless, it is undisputed that, in the

instant case, Dr. Davis performed an individualized assessment of

Gonzales’s medical con dition and, based on that assessment,

concluded that his diabetic neuropathy prevents Gonzales from being

able to handle a firearm safely or to drive a vehicle to police

specifications. Hence, we conclude that, even in the absence of21 Initially, Gonzales also argued that t he department could

have reassigned him to the position of police dispatcher. At oral

argument on app eal, however, counsel for Gonzales abandoned this

claim, admitting that there were no dispatcher positions available

at the time Gonzales re tired. S ee 42 U.S.C. §

12111(9)(B)(1997)(defining “reasonable accommodation” as, inter

alia , reassignment to a vacant position).

22 Id. at § 12111(9)(B).

23 See 29 C.F.R. Pt. 163 0 App. § 1630.2(o)(1998); D alton v.

Subaru-Isuz u Automotive, Inc. , 141 F.3d 667, 678(7th Cir.

1998)(noting that, to be considered "qualified" for the potential

new position, an individual must again (1) satisfy the legitimate

prerequisites for that alternative position, and (2) be able to

perform the essential functions of that position with or w ithout

reasonable accommodation).

10 the per se rule, there is no genuine issue of material fact as to

whether Gonzales is qualified for the job of police officer, with

or without the retesting accommodation.

(b) Reassignment

Gonzales further contends, however, that the department could

have accommodated his limitations by reassigning him t o the

position of evidence technician. 21 Under the ADA, reassignment to

a vacant position can b e a reasonable accommodation, 2 2 and the

department has con ceded that an evidence technician job was

available when Gonzales retired. Before liability will be imposed

on the department for failing to accommodate Gonzales through

reassignment, howev er, Gonzales must first satisfy his burden of

proving that he is qualified, with or without reasonable

accommodation, for the evidence technician job. 23 The department

argues that Gonza les has failed to adduce evidence sufficient to24 At oral argument on appeal, counsel for Gonzales contended

that the position of evidence technician was, at some point,

decertified

, thereby removing the commissioned officer requirement.

We find nothing in the record to support this contention.

11 raise a genuine issue of material fact as to whether he can meet

this burden. We agree.

Evidence technician is a “certified position,” meaning inter

alia that an applicant must be a commissioned officer. 24 To be a

commissioned officer, though, one must be both firearms and driving

certified. As previously noted, the record shows that Gonzales

failed his firearms requalification test and, at the very l east,

experienced difficulties with his driving exam. Furthermore, Dr.

Davis’s medical evaluation indicates that, even had Gonzales been

allowed to retest in these areas, his severe diabetic neu ropathy

would continue to limit his ability to handle a firearm safely and

drive a vehicle to police specifications. Thus, as Gonzales is not

qualified to be a commissioned officer, he is likewise not eligible

—— qualified —— for the position of evidence technician.

Consequently, the department cannot be held liable for failing to

accommodate Gonzales through reassignment to this position.

The only way in which Gonzales might possibly have escaped

this outcome would have been to challenge the legitimacy of the

NBPD’s commissioned officer qualification standard for evidence

technician. Under the ADA, if a plaintiff can prove that his

employer has imposed eligibility requirements that tend to screen

out the disabled, that employer will be deemed to have25 29 C.F.R. § 12112(b)(6)(1998).

26 Recognized as an actionable form of discrimination under

Title VII, the disparate impact theory has been adopted entirely by

the ADA. S ee 42 U.S.C. S 12112(b)(3)&(6)(1997); 1 H.H. Perritt,

Jr., Americans With Disabilities Act Handbook § 4.52 (3d ed. 1997);

29 C.F.R. § 1630.15(b)&(c)(1998)(discussing disparate impact

defenses).

To make out a Title VII prima facie claim of disparate impact

discrimination, a pl aintiff must (1) i dentify the challenged

employment practice or policy, and pinpoint the defendant's use of

it; (2) demonstrate a disparate impact on a group that falls within

the protective ambit of Title VII; and (3) demonstrate a causal

relationship between t he identified practice and the disparate

impact. S ee 42 U.S.C. § 2000e -2(k)(1)(A)(i); E EOC v. Steamship

Clerks Union, Local 1066 , 48 F.3d 594, 601 (1st Cir. 1995)(citing

Wards Cove Packing Co. v. Atonio

, 490 U.S. 642, 650-57 (1989)). In

the ADA context, a plaintiff may satisfy the second prong of his

prima facie case by demonstrating an adverse impact on himself

rat her than on an entire group. 1 Barbara Lindemann & Paul

Grossman, Employment Discrimination Law 333-34 (3d ed. 1996).

12 “discriminated” unless it can demonstrate that the particular

eligibility standard or criterion in question is “job-related” and

“consistent with business necessity.” 25

In the instant case, the depa rtment’s requirement that all

evidence technicians be commissioned officers is a facially neutral

standard. More importantly, nowhere in any of the pretrial,

summary judgment, or appellate plead ings or proceedings has

Gonzales contended that this particular requirement had an adverse

impact him. 26 Thus, as Gonzales failed even to plead a disparate

impact claim, the burden never shifted to the department to prove

that its qualification requirements for the position of evidence

technician are job related and consistent with business necessity.

In essence, Gonzales waived this contention by not advocating it.13 III.

CONCLUSION

Based on our d e novo review, we conclude that there is no

genuine issue of material fact as to whether the department failed

to meet its reasonable accommodation obligation under the ADA. The

only accommodations sought by Gonzales we re retesting and

reassi gnment to the position of evidence technician. For the

foregoing rea sons, neither of these alternatives are viable.

Consequently, even if, a s we have assumed without granting,

Gonzales is “disabled” for purposes of the ADA, he is not

qualified, with or without accommodation, for the position of

police officer. The district court’s summary judgment in favor of

the City is, therefore

AFFIRMED.