PUBLISH

UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT

FLOYD WILKERSON, 

 Plaintiff-Appellant, 

 v. No. 09-8027 

ERIC K. SHINSEKI,1 

Secretary, United States Department of 

Veterans Affairs, 

 Defendant-Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF WYOMING 

(D.C. No. 2:08-CV-00115-CAB)

Bruce T. Moats, Law Office of Bruce T. Moats, Cheyenne, Wyoming, for Appellant. 

Joseph H. Azbell, Assistant United States Attorney (Kelly H. Rankin, United States 

Attorney, and Carol A. Statkus, Assistant United States Attorney, with him on the brief), 

Cheyenne, Wyoming, for Appellee. 

Before TACHA, HENRY, and HARTZ, Circuit Judges. 

HENRY, Circuit Judge. 

 

1

 Pursuant to Fed. R. App. P. 43(c), we have substituted Eric K. Shinseki as the 

Defendant-Appellee in this action. 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 2, 2010

Elisabeth A. Shumaker 

Clerk of Court

Appellate Case: 09-8027 Document: 01018432981 Date Filed: 06/02/2010 Page: 1 
2 

 Floyd Wilkerson worked on a temporary basis at the Cheyenne Veteran Affairs 

Medical Center as a boiler plant operator. Following a failed physical examination, the 

human resources manager notified him that he was reassigned to a lower paid position. 

Mr. Wilkerson brought suit against the Secretary of the U.S. Department of Veterans 

Affairs (the “VA”), claiming that this reassignment discriminated against him based on 

his obesity and diabetes, in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 791 

et seq., and that age discrimination played a role in his reassignment in violation of the 

Age Discrimination in Employment Act (the “ADEA”), 29 U.S.C. §§ 626 and 633a(a). 

Mr. Wilkerson later tried to amend his complaint to allege that his health records were 

illegally accessed in violation of the Privacy Act, 5 U.S.C. § 552a. The district court 

granted summary judgment for the VA on all counts and denied Mr. Wilkerson’s motion 

for leave to amend the complaint to allege the Privacy Act claim. 

Because we find that Mr. Wilkerson was not otherwise qualified to hold the 

position as required by the Rehabilitation Act, we affirm the grant of summary judgment 

as to this claim. We also affirm the district court’s grant of summary judgment as to his 

age discrimination claim because the VA had a non-discriminatory reason for removing 

Mr. Wilkerson that was not pretextual. Finally, because Mr. Wilkerson has not alleged 

that the accessing of the records was intentional misconduct, as required by the Privacy 

Act, we affirm the district court’s denial of leave to amend the complaint. 

Appellate Case: 09-8027 Document: 01018432981 Date Filed: 06/02/2010 Page: 2 
3 

I. BACKGROUND

Mr. Wilkerson is employed by the Department of Veterans Affairs in Cheyenne, 

Wyoming. In February 2003, he began work at the VA as a boiler plant operator under a 

temporary appointment. When that appointment ended in July 2003, the VA hired Mr. 

Wilkerson as a full-time permanent employee in housekeeping. In February 2005, Mr. 

Wilkerson was temporarily reassigned once again to work as a boiler plant operator due 

to a shortage of employees. 

VA directives require that all boiler plant operators complete an annual fitness 

exam. In early 2007, because of an apparent oversight, the VA discovered that Mr. 

Wilkerson had not completed an annual fitness exam up to this point. Nurse Practitioner 

Ann Enlow conducted Mr. Wilkerson’s physical examination on February 1, 2007. The 

exam results noted that Mr. Wilkerson was obese (at 6’3”, Mr. Wilkerson weighed 338 

pounds) and had diabetes. Ms. Enlow forwarded her report to Dr. James Johnson, an 

employee health physician at the VA. After reviewing Ms. Enlow’s report, Dr. Johnson 

accessed Mr. Wilkerson’s electronic patient records (Mr. Wilkerson had sought medical 

treatment at the VA for numerous years). From these records and Ms. Enlow’s report, 

Dr. Johnson concluded that Mr. Wilkerson’s diabetes was largely uncontrolled and 

uncontrollable. 

Dr. Johnson spoke to the boiler room supervisors about the physical requirements 

of the job, as well as with members of the engineering department and human resources. 

Appellate Case: 09-8027 Document: 01018432981 Date Filed: 06/02/2010 Page: 3 
4 

Ultimately, Dr. Johnson concluded that Mr. Wilkerson was unable to meet the minimum 

requirements of the boiler plant operator position. 

The VA Center for Engineering & Occupational Safety and Health (CEOSH) has 

established guidelines for work as a boiler plant operator at a VA facility. The guidelines 

state that “Applicants for all boiler plant operators and heating and boiler plant equipment 

mechanic positions must demonstrate to the Occupational Health Provider’s satisfaction 

that they are capable of arduous physical exertion.” Aple’s App. at 00092. Such 

employees, the guidelines report: 

frequently work in confined areas in and around boilers and support 

equipment. The work requires moderate to strenuous effort and long 

periods of walking, standing, climbing, bending and crouching. Workers 

frequently lift and carry boiler parts and chemical supplies weighing up to 

40 pounds unassisted and occasionally items weighing over 40 pounds with 

assistance of other workers or weight-handling equipment. 

Id. The guidelines then state that any “structural or functional limitation or defect that 

interferes materially with a high degree of physical activity will disqualify the individual” 

and sets a number of criteria that are “exclusionary,” among these are “[u]ncontrolled or 

poorly controlled insulin-dependent diabetes.” Id. at 00092, 00093. Finally, “boiler plant 

operators must have annual physical examinations to ensure physical fitness to perform 

assigned duties.” Id. 

Accordingly, Dr. Johnson called Sandra Willoughby, the Human Resources 

Officer for the VA at the time, and told her that Mr. Wilkerson had failed his physical, 

noting Mr. Wilkerson’s uncontrolled diabetes and his concern about Mr. Wilkerson’s 

ability to perform challenging physical tasks. Ms. Willoughby told Mr. Wilkerson that he 

Appellate Case: 09-8027 Document: 01018432981 Date Filed: 06/02/2010 Page: 4 
5 

failed his physical, and that he no longer met the environmental requirements for a boiler 

plant operator because he weighed over 300 pounds and the ladders in the boiler plant 

only supported up to 300 pounds. After he received the letter, Mr. Wilkerson requested 

that special accommodations be made for his weight; specifically he asked that the VA 

purchase ladders that would support his weight. According to the deposition testimony of 

Ms. Willoughby, the VA considered this option but dismissed it because the other issues 

raised by the physical would still preclude his safe employment. Id. at 00066 (Deposition 

of Ms. Willoughby). Ms. Willoughby informed Mr. Wilkerson that the VA was 

reassigning him back to housekeeping, effective the next day. Id. at 00032. 

After Mr. Wilkerson’s reassignment to housekeeping, his pay grade fell eight 

levels, from WG-10 to WG-2, and his hourly pay decreased from $21.98 an hour to 

$12.51 an hour. 

Mr. Wilkerson brought suit against the Department of Veterans Affairs Secretary, 

James B. Peake, alleging that the VA had discriminated against him in violation of the 

Rehabilitation Act, 29 U.S.C. §§ 791, 794, that the VA failed to accommodate his 

disability, 42 U.S.C. § 12112 et seq., and that he was unlawfully discriminated against 

based on his age in violation of the ADEA, 29 U.S.C. § 626 and 633a(a). While the 

VA’s summary judgment motions were pending, Mr. Wilkerson asked for leave to amend 

his complaint to include a violation of the Privacy Act, 5 U.S.C. § 552a, alleging that Dr. 

Johnson wrongfully accessed Mr. Wilkerson’s private medical records. 

Appellate Case: 09-8027 Document: 01018432981 Date Filed: 06/02/2010 Page: 5 
6 

The district court granted summary judgment for the VA as to all of Mr. 

Wilkerson’s claims. The district court also denied Mr. Wilkerson’s motion for leave to 

file his amended complaint, ruling that any amendment would be futile. Mr. Wilkerson 

now appeals. 

II. ANALYSIS

A. Rehabilitation Act claim

Mr. Wilkerson alleges that he was reassigned based on his diabetes and obesity, in 

violation of the Rehabilitation Act. We review the district court’s grant of summary 

judgment de novo, applying the same legal standard used by the district court. Somaza v. 

Univ. of Denver, 513 F.3d 1206, 1211 (10th Cir. 2008). “Summary judgment is 

appropriate ‘if the pleadings, the discovery and disclosure materials on file, and any 

affidavits show that there is no genuine issue as to any material fact and that the movant 

is entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(c)). “When 

applying this standard, we examine the factual record in the light most favorable to the 

party opposing summary judgment.” Belhomme v. Widnall, 127 F.3d 1214, 1216 (10th 

Cir. 1997). 

To make out a prima facie case for discrimination in violation of the 

Rehabilitation Act, Mr. Wilkerson must establish: “(1) that [he] is disabled under the 

Act; (2) that he would be ‘otherwise qualified’ to participate in the program; (3) that the 

program receives federal financial assistance (or is a federal agency . . .); and (4) that the 

program has discriminated against the plaintiff.” McGeshick v. Principi, 357 F.3d 1146, 

Appellate Case: 09-8027 Document: 01018432981 Date Filed: 06/02/2010 Page: 6 
7 

1150 (10th Cir. 2004). We apply the standards from the American with Disabilities Act 

in analyzing a Rehabilitation Act claim. 29 U.S.C. § 791(g); Jarvis v. Potter, 500 F.3d 

1113, 1121 (10th Cir. 2007) (“We . . . look to the ADA for guidance in resolving 

Rehabilitation Act claims.”). 

1. Is Mr. Wilkerson disabled under the Act?

The first factor under the Rehabilitation Act is that the plaintiff must have a 

disability. The Rehabilitation Act defines the term “disability” to mean any of the 

following: 

(A) a physical or mental impairment that substantially limits one or more of the 

major life activities of such individual; 

 (B) a record of such an impairment; or 

(C) being regarded as having such an impairment. 

42 U.S.C. § 12102(2); see also EEOC Interpretive Guidelines for the Rehabilitation Act,

29 C.F.R. § 1614.203(b). To be substantially limited in a major life activity, “an 

individual must have an impairment that prevents or severely restricts the individual from 

doing activities that are of central importance to most people’s daily lives.” Toyota 

Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002). The impairment’s impact 

must “be permanent or long term.” Id. In analyzing whether something is a disability the 

court looks to whether it is a “physiological disorder or condition affecting one or more 

body systems, or any mental or psychological disorder.” Enwonwu v. Fulton-Dekalb 

Hosp. Auth., 286 F. App’x 586, 603 (11th Cir. 2008) (citing 29 C.F.R. § 1630.2(h)(1), 

(2)). A medical diagnosis is insufficient, rather, “the ADA requires plaintiffs to offer 

Appellate Case: 09-8027 Document: 01018432981 Date Filed: 06/02/2010 Page: 7 
8 

evidence that the extent of the limitation caused by their impairment in terms of their own 

experience is substantial.” Id.

Here there are two potentially qualifying disabilities: obesity and diabetes. The 

question of whether the defendant is disabled was not decided by the district court. The 

district court stated that: “For the sole purpose of determining whether summary 

judgment is appropriate in this case, this Court will . . . assume that Plaintiff has met his 

burden in proving that he is a disabled person.” Aplt’s App. at 8. On appeal, neither side 

has fully briefed this question nor is there a record on which to base a decision on 

whether Mr. Wilkerson is disabled. Further, we find other aspects of the analysis 

dispositive. Thus, like the district court, we will assume that Mr. Wilkerson has met this 

prong of the analysis. 

2. Is Mr. Wilkerson otherwise qualified?

The Rehabilitation Act and the ADA provide relief only to disabled persons who 

are “otherwise qualified” to perform the functions of the job. 29 U.S.C. § 794(a). The 

Equal Employment Opportunity Commission (EEOC) is authorized by 42 U.S.C. § 

12116 to promulgate regulations to implement the provisions of the ADA. See 29 C.F.R. 

§ 1630.1–.16. We give these regulations “a great deal of deference.” Smith v. Midland 

Brake, Inc., 180 F.3d 1154, 1165 n.5 (10th Cir. 1999) (citation omitted); see Sutton v. 

United Air Lines, Inc., 130 F.3d 893, 899 n.3 (10th Cir. 1997). Under these regulations, 

employers may set skill, experience, education and other job related requirements, 

including physical qualifications for the employment position. Tate v. Farmland Indus. 

Appellate Case: 09-8027 Document: 01018432981 Date Filed: 06/02/2010 Page: 8 
9 

Inc., 268 F.3d 989, 993 (10th Cir. 2001); Southeastern Cmty. Coll. v. Davis, 442 U.S. 

397, 406 (1979) (“An otherwise qualified person is one who is able to meet all of the 

program’s requirements in spite of his handicap.”). An employer, however, may not: 

“us[e] qualification standards, employment tests or other selection criteria that screen out 

or tend to screen out an individual with a disability or a class of individuals with 

disabilities unless the standard, test or other selection criteria, as used by the covered 

entity, is shown to be job-related for the position in question and is consistent with 

business necessity.” 42 U.S.C. § 12112(b)(6); see also E.E.O.C. v. Exxon Corp., 203 

F.3d 871, 872 (5th Cir. 2000) (“The ADA prohibits an employer from using qualification 

standards that screen out a disabled individual or class.” (citing 42 U.S.C. § 12112(b)(6) 

(1999)). Additionally, any job requirement must be uniformly enforced. Tate, 268 F.3d 

at 993. Assuming these requirements are met, we defer to employment guidelines as 

“constituting a body of experience and informed judgment.” Id. at 994 (quoting United 

States v. Mead Corp., 533 U.S. 218 (2001) (quoting Skidmore v. Swift & Co., 323 U.S. 

134, 139–40 (1944))).2

 

The district court found that Mr. Wilkerson was not otherwise qualified for 

employment as a boiler room operator: “Although the Court assumes that the Plaintiff is 

disabled, the Court finds that summary judgment is appropriate in this case because 

 

2

 In addition, we may consider whether the employee would represent a “direct threat” to 

himself or others if the employment continued. 42 U.S.C. § 12133(b). Because we hold 

that he is not otherwise qualified, we need not reach this question. 

Appellate Case: 09-8027 Document: 01018432981 Date Filed: 06/02/2010 Page: 9 
10 

Plaintiff was not ‘otherwise qualified’ for the position of boiler plant operator. . . . 

Plaintiff was not discriminated against because of his weight. He simply failed to meet 

the minimum physical requirements of the position. Because he could not meet these 

requirements, Plaintiff was not ‘otherwise qualified’ to be a boiler plant operator at the 

VA.” Aplt’s App. at 13 (citations omitted). We agree. 

CEOSH’s guidelines for who could work as a boiler plant operator set a number of 

criteria that are “exclusionary,” and among these are “[u]ncontrolled or poorly controlled 

insulin-dependent diabetes.” Aple’s App. at 00093. The job requires an operator who 

might be able at all times to respond to an emergency with some degree of physical 

agility. Id. at 00092. Moreover, the job requires a fair amount of heavy lifting, bending, 

agility in movement and so forth. Id. at 00092, 00094 (“Boiler Plant Operator Physical 

Requirements”). Thus, the question becomes whether these requirements are (1) jobrelated, (2) uniformly enforced, and (3) consistent with business necessity, Tate, 268 F.3d 

at 993; if so, the employer has the right to establish what is required to satisfactorily 

perform the job. 

All three elements for a valid physical fitness requirement are satisfied here. First, 

the guidelines are undisputedly job-related: they describe the duties of the job and then 

establish categories of individuals who are excluded based on this. For example, in the 

case of a shutdown or an emergency, an operator needs to be able to react swiftly to any 

emergency, such as an increase in pressure. Aple’s App. at 00041 (Deposition of Elvin 

Wrede) (describing the process in case a shutdown is needed). Further the daily 

Appellate Case: 09-8027 Document: 01018432981 Date Filed: 06/02/2010 Page: 10 
11 

responsibilities require that an operator “be able to (1) utilize pipe wrenches of varying 

sizes for removal or tightening of pipe fittings; (2) go up and down ladders to perform 

any required maintenance such as re-packing or tightening the packing on the valves, 

change relief valves, replace gaskets and tighten bolts on steam line flanges; and (3) react 

instantly to any dangerous situations that might occur.” Id. at 00028 (Declaration of 

Elvin Wrede). 

Next, the VA uniformly enforced the boiler room operator guidelines: “The VA 

requires that all boiler room operators undergo an annual physical examination” and 

those who fail are subject to removal. Aple’s App. at 00031 (Declaration of Sandra 

Willoughby), 00029 (Declaration of Elvin Wrede), 00037 (Deposition of Elvin Wrede); 

see also id. at 00040 (describing another employee who failed to meet the physical 

requirements and who was removed from boiler room duties). Indeed, Mr. Wilkerson 

makes no real argument that the VA treated others in his situation differently. 

Finally, the guidelines are a business necessity. The requirements are minimal 

physical standards that a boiler room operator must meet. Mr. Wilkerson’s supervisors 

testified that his responsibilities included being able “to respond to warning bells and 

gauges, and that he ‘needed to be able to climb ladders and go up and down stairs 

quickly.’” Aplt’s App. at 76. Although Mr. Wilkerson testified that 95% of his work 

was “[l]ight duty,” and he was only occasionally required to climb on ladders, in times of 

crisis, he might need to act quickly and move with dispatch. Id. at 116–17. The VA was 

within its power when it passed these guidelines and it is understandable for 

Appellate Case: 09-8027 Document: 01018432981 Date Filed: 06/02/2010 Page: 11 
12 

administrative ease and to ensure the uniformity of standards that it would desire to have 

guidelines that establish a limited class of individuals who do not qualify to work in 

boiler rooms at their facilities. 

We acknowledge that Mr. Wilkerson worked for two years at this position without 

incident. Of course, Mr. Wilkerson’s weight and health status during all of this time is 

unknown; we only know that information as of February 2007. But in any event, the 

requirements are there in case of an extraordinary but possible emergency, not 

necessarily to determine the ability to perform day-to-day routine boiler plant operations. 

The fact that no such emergency occurred during Mr. Wilkerson’s tenure and that he was 

able to perform his job is fortuitous; but an employer may set standards not only for the 

mundane work but also for the exceptional. As long as the need to perform in an 

emergency is a realistic component of the job, the employer should be able to “establish 

reasonable physical qualifications” to ensure that an emergency situation can be dealt 

with safely and efficiently by the employee, especially in situations like here, where the 

physical safety of others may be at risk. Southeastern Cmty. Coll. v. Davis, 442 U.S. at 

414. 

The record indicates that Mr. Wilkerson would pose a danger to himself and others 

should he fall from a ladder. It also warns of potentially disastrous effects if he was 

unable to shut down a boiler if it malfunctions, leading to a possible explosion. For 

example, Mr. Wilkerson’s supervisor, Elvin Wrede, stated that if one of the boilers was to 

explode from improper maintenance or operation, “the force would bring down the entire 

Appellate Case: 09-8027 Document: 01018432981 Date Filed: 06/02/2010 Page: 12 
13 

building that houses them.” Aple’s App. at 28 (Declaration of Elvin Wrede). Thus, we 

agree with the district court that because Mr. Wilkerson failed to meet the VA’s boiler 

room operator safety standards he was not “otherwise qualified” as required by the 

Rehabilitation Act. 

We have established that before an individual can be deemed not “otherwise 

qualified” the employer must make an effort to accommodate the employee’s disability. 

See Woodman v. Runyon, 132 F.3d 1330 (10th Cir. 1997); 42 U.S.C. § 12112(b)(5)(A). 

We have held that federal employers, like the VA, “must play a considerable role in 

ensuring that every reasonable effort is made to find suitable jobs for disabled 

employees.” See Woodman, 132 F.3d at 1334. “There are two components to the 

reasonable accommodation analysis. First, whether a reasonable accommodation would 

enable the employee to do the particular job. Additional training might be a reasonable 

accommodation for this purpose. Second, whether the employee could be transferred to 

other work which could be done with or without accommodation.” Gonzagowski v. 

Widnall, 115 F.3d 744, 747 (10th Cir. 1997) (emphasis in original). “The federal 

regulations implementing the ADA envision an interactive process that requires 

participation by both parties.” Templeton v. Neodata Servs., Inc., 162 F.3d 617, 619 

(10th Cir. 1998) (quotation marks and citations omitted). 

We hold that the VA made reasonable accommodations under the circumstances. 

The VA reassigned Mr. Wilkerson to another position, albeit a lower-paid one. As we 

previously stated, “reassignment of an employee to a vacant position in a company is one 

Appellate Case: 09-8027 Document: 01018432981 Date Filed: 06/02/2010 Page: 13 
14 

of the range of reasonable accommodations which must be considered and, if appropriate, 

offered if the employee is unable to perform his or her existing job.” Smith, 180 F.3d at 

1167. However, when such an offer involves lower pay or benefits, it only satisfies the 

employer’s duty to accommodate if there are no reasonable accommodations either in the 

old job or in another vacant lateral position. Id. We hold that under the circumstances 

there were no reasonable accommodations that would have allowed Mr. Wilkerson to 

remain employed in the boiler room and thus the transfer to the lower paid position was 

reasonable.3

 For example, Mr. Wilkerson’s request that the VA purchase a special ladder 

to accommodate for his weight was a reasonable request and the VA considered it. The 

VA, however, concluded that such action would not relieve all of the concerns of keeping 

Mr. Wilkerson in the boiler room. See Aple’s App. at 00066 (Deposition of Sandra 

Willoughby) (stating that the VA would have been willing to purchase such a ladder but 

that the VA had too many other concerns that Mr. Wilkerson would not have been 

qualified even with such a purchase). 

We have also held that the Rehabilitation Act “requires an ‘interactive process.’” 

Woodman, 132 F.3d at 1345 n.16 (reasonable accommodation “is best determined 

through a flexible, interactive process that involves both the employer and the qualified 

individual with a disability” (quoting 29 C.F.R. Pt. 1630, App. § 1630.9 (1996))). “The 

obligation to engage in an interactive process is inherent in the statutory obligation to 

 

3

 Mr. Wilkerson does not argue that he should have been transferred to a different vacant 

position in the VA. 

Appellate Case: 09-8027 Document: 01018432981 Date Filed: 06/02/2010 Page: 14 
15 

offer a reasonable accommodation to an otherwise qualified disabled employee. The 

interactive process is typically an essential component of the process by which a 

reasonable accommodation can be determined.” Smith, 180 F.3d at 1172. Here, although 

there was not a face-to-face meeting between the parties to discuss accommodations, Mr. 

Wilkerson requested an accommodation that the VA considered and denied. Based on 

the circumstances in this case, it was reasonable for the VA to conclude that any further 

interactive process would be futile and that no reasonable accommodation was possible 

that would allow Mr. Wilkerson to work in the boiler room. 

Thus, we hold that Mr. Wilkerson is not otherwise qualified to serve in the boiler 

room and there was no reasonable accommodation that would have allowed him to 

continue. Accordingly, summary judgment is appropriate as to this claim, and we affirm 

the district court’s grant of summary judgment for the defendant, the VA. 

B. Age Discrimination Employment Act claim

Mr. Wilkerson next argues that he was discriminated against on the basis of his 

age, in violation of the ADEA, 29 U.S.C. §§ 626 and 633a(a). The district court granted 

summary judgment as to this claim, which we review de novo applying the same legal 

standard as above. Somaza, 513 F.3d at 1211. “Summary judgment is appropriate ‘if the 

pleadings, the discovery and disclosure materials on file, and any affidavits show that 

there is no genuine issue as to any material fact and that the movant is entitled to 

judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(c)). 

Appellate Case: 09-8027 Document: 01018432981 Date Filed: 06/02/2010 Page: 15 
16 

To establish a prima facie case for age discrimination, the plaintiff must prove that 

he was (1) within the protected class of individuals 40 or older, (2) performed satisfactory 

work; (3) terminated from employment; and (4) replaced by a younger person. Adamson 

v. Multi-Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1146 (10th Cir. 2008). Once a 

prima facie case is established, the burden shifts to the VA to articulate a legitimate, 

nondiscriminatory reason for its actions. Id. at 1145. If the VA does so, the burden 

returns to Mr. Wilkerson to show either that the VA’s asserted reason was pretextual, or 

to show that age was nonetheless a determinative factor in the VA’s employment 

decision. Id. at 1145. Under the ADEA, a “plaintiff is not required to show that age was 

the sole motivating factor in the employment decision. Thus a plaintiff need not prove 

that the reasons offered by the defendant are false if he proves that age was also a reason, 

and that age was the factor that made a difference.” EEOC v. Prudential Fed. Sav. & 

Loan Ass’n, 763 F.2d 1166, 1170 (10th Cir. 1985) (citations omitted). 

Mr. Wilkerson presents three main arguments in support of his age discrimination 

claim. First, he states the VA denied consideration of his applications for two boiler 

room positions that opened in 2007 and the VA filled both of these positions with 

employees younger than him. Second, he points to comments made by Mr. Wrede, his 

direct supervisor. Another employee reported that Mr. Wrede expressed frustration with 

having to complete a work schedule when so many operators were on extended medical 

leave, and that maybe he should hire younger workers. Aplt’s App. at 108 (Declaration 

of Robert Reed). Third, Mr. Wilkerson claims that the VA’s inconsistencies and 

Appellate Case: 09-8027 Document: 01018432981 Date Filed: 06/02/2010 Page: 16 
17 

contradictory rationale demonstrate pretext. See Bryant v. Farmers Ins. Exch., 432 F.3d 

1114, 1125 (10th Cir. 2005) (“[W]eaknesses, implausibilities, inconsistencies, 

incoherencies or contradictions in the employer’s proffered legitimate reasons for its 

action that a reasonable factfinder could rationally find them unworthy of credence and 

hence infer that the employer did not act for the asserted non-discriminatory reasons.”). 

Mr. Wilkerson has properly alleged all the elements to establish a prima facie 

case. He is over the age of forty, he was performing satisfactory work, he was terminated 

from this position, and, finally, he was replaced by employees who were younger. Aple’s 

App. at 00022 (alleging that the VA hired two employees to replace him who were ages 

47 and 37). The VA, however, has asserted a non-age related justification for its 

actions—Mr. Wilkerson failed the mandated physical and that it believed that Mr. 

Wilkerson was unable to perform the essential functions required of a boiler room 

operator. 

Thus, the burden shifts back to Mr. Wilkerson to allege facts sufficient to show 

that the VA’s justification was a pretext or that age was a determinative factor. Even if 

we accept everything Mr. Wilkerson asserts as true, he could not prove that “age was a 

factor that made the difference” or that the VA’s justification was pretextual. Prudential 

Federal Sav. & Loan Ass’n, 763 F.2d at 1170. The record supports the VA’s stated 

rationale for transferring Mr. Wilkerson—that he could not meet the physical 

qualifications. At best, Mr. Wilkerson had a one time, offhand, and fairly ambiguous 

comment by a supervisor—not directed toward Mr. Wilkerson—who did not even make 

Appellate Case: 09-8027 Document: 01018432981 Date Filed: 06/02/2010 Page: 17 
18 

the ultimate decision with respect to his employment. Given that there are no disputed 

facts, and the evidence that exists could not support a claim under the ADEA, we agree 

with the district court that summary judgment in favor of the VA is appropriate on this 

claim. 

C. Privacy Act claim

Mr. Wilkerson argues Dr. Johnson’s accessing of Mr. Wilkerson’s health records 

violated his privacy rights. The district court denied Mr. Wilkerson’s motion for leave to 

amend his complaint to allege a Privacy Act violation, 5 U.S.C. § 552a.4

 We review the 

district court’s decision to deny leave to amend a complaint for an abuse of discretion. 

Hertz v. Luzenac Group, 576 F.3d 1103, 1117 (10th Cir. 2009). A district court should 

refuse leave to amend “only [upon] a showing of undue delay, undue prejudice to the 

opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments 

previously allowed, or futility of amendment.” Duncan v. Manager, Dep’t of Safety, City 

& County of Denv., 397 F.3d 1300, 1315 (10th Cir. 2005). 

The Privacy Act provides that: “No agency shall disclose any record which is 

contained in a system of records by any means of communication to any person, or to 

another agency, except pursuant to a written request by, or with the prior written consent 

 

4

 Mr. Wilkerson also attempts to allege a violation of the Health Insurance Portability 

and Accountability Act. Aplt’s Br. at 40 (“The VA is undisputedly governed by the 

Privacy Act and the so-called ‘Privacy Rule’ of the [HIPAA].”). Any HIPAA claim fails 

as HIPAA does not create a private right of action for alleged disclosures of confidential 

medical information. See Acara v. Banks, 470 F.3d 569, 571 (5th Cir. 2006) (“We hold 

there is no private cause of action under HIPAA.”). 

Appellate Case: 09-8027 Document: 01018432981 Date Filed: 06/02/2010 Page: 18 
19 

of, the individual to whom the record pertains.” 5 U.S.C. § 552a(g)(1)(D). For a plaintiff 

to succeed on a Privacy Act claim, he must demonstrate the following four elements: (1) 

the information is a record within a system of records, (2) the agency disclosed the 

information, (3) the disclosure adversely affected the plaintiff, and (4) the disclosure was 

willful or intentional. Pierce v. Dep’t of U.S. Air Force, 512 F.3d 184 (5th Cir. 2007). 

Of course, certain disclosures are authorized and do not give rise to a Privacy Act claim. 

See 5 C.F.R. § 297.401 (1996). 

Mr. Wilkerson’s medical records are undisputedly an applicable record; these files 

were not part of his employee medical file. Similarly, the parties do not dispute that the 

VA’s disclosure of the information adversely affected Mr. Wilkerson. 

As to element (2), whether there was a disclosure, “[a]lthough ‘disclosure’ is not 

defined in the text of the Privacy Act, the Office of Personnel Management (‘OPM’) has 

defined ‘disclosure’ under the Privacy Act to mean ‘providing personal review of a 

record, or a copy thereof, to someone other than the data subject or the data subject’s 

authorized representative.’” Pippinger v. Rubin, 129 F.3d 519, 528 (10th Cir. 1997) 

(quoting 5 C.F.R. § 297.102 (1997)). We have also interpreted this definition liberally to 

include not only the physical disclosure of the records, but also the accessing of private 

records. Id. When the VA revealed the information to Dr. Johnson, the VA disclosed 

information covered by the Privacy Act. The VA disclosed the information in the record 

to Dr. Johnson, who, under the law, constituted a person other than the data subject or the 

subject’s authorized representative. The VA does not dispute that the disclosure 

Appellate Case: 09-8027 Document: 01018432981 Date Filed: 06/02/2010 Page: 19 
20 

adversely affected Mr. Wilkerson. Thus, the claim turns on prong (4) whether the 

disclosure was willful or intentional. 

A disclosure is considered “intentional or willful” under the Privacy Act only if 

the “action [was] so patently egregious and unlawful that anyone undertaking the conduct 

should have known it unlawful, or conduct committed without grounds for believing it to 

be lawful or action flagrantly disregarding others’ rights under the Act.” Andrews v. 

Veterans Admin., 838 F.2d 418, 425 (10th Cir. 1998) (internal quotation marks and 

citations omitted). Such conduct must amount to reckless behavior, gross negligence is 

insufficient. Id. 

There is no indication that the conduct in this case rises to the level to be 

considered “willful or intentional,” nor does Mr. Wilkerson cite any. Dr. Johnson 

testified in his deposition that he thought he could access the record so long as he had a 

“need to know.” Aplt’s App. at 74; see Hernandez v. Alexander, 671 F.2d 402, 410 (10th 

Cir. 1982) (concluding that the “need to know” exception authorizes disclosure where 

records are necessary to make a disciplinary decision). There is no testimony in the 

records nor is there any other evidence to the contrary. And given that Mr. Wilkerson’s 

health records were relevant to whether he could continue working at the VA, Dr. 

Johnson’s belief was reasonable. Thus, we hold that the district court did not abuse its 

discretion in denying leave to amend the complaint to allege a violation of the Privacy 

Act as any attempt to amend the complaint would be futile, thus summary judgment is 

appropriate as to this claim. 

Appellate Case: 09-8027 Document: 01018432981 Date Filed: 06/02/2010 Page: 20 
21 

III.CONCLUSION

 Mr. Wilkerson’s frustration over his reassignment, after over two years working as 

the boiler room operator without incident is understandable. However, given these facts, 

we cannot penalize an employer for following its regulations regarding its reasonable 

medical health requirements, even if the employer acts belatedly. Thus, for the foregoing 

reasons, we affirm the district court’s grant of summary judgment as to Mr. Wilkerson’s 

Rehabilitation Act and ADEA claims and affirm the district court’s denial of Mr. 

Wilkerson’s motion for leave to amend his complaint to allege a violation of the Privacy 

Act. 

Appellate Case: 09-8027 Document: 01018432981 Date Filed: 06/02/2010 Page: 21