UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 92-1849
LYLE S. CHANDLER and ADOLPHUS A. MADDOX, on behalf of themselves and others similarly situated,
Plaintiffs-Appellees,
VERSUS
THE CITY OF DALLAS, ET AL.,
Defendants,
THE CITY OF DALLAS,
Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Texas
(September 20, 1993)
Before SMITH, DUHÉ, and WIENER, Circuit Judges.
WIENER, Circuit Judge:
In 1978, the City of Dallas, Texas (Dallas or the City)
adopted a Driver Safety Program (the Program) to reduce the risk
of vehicular collisions. The Program established certain
physical standards for city employees who drive on public roads
as an intrinsic part of their job duties. Employees of this type
are referred to as Primary Drivers. The physical standards
required by the Program were patterned on safety regulations promulgated by the United States Department of Transportation.
If an employee did not meet these standards, he could not be
certified as a primary driver and thus was ineligible for Primary
Driver jobs.1
Two of the medical standards for Primary Drivers are of
particular importance to the instant appeal. A Primary Driver:
(1) cannot have an established medical history of diabetes
mellitus severe enough to require insulin for control; and (2)
must have 20/40 vision (corrected) and a field of vision of at
least 70 degrees in the horizontal meridian in each eye.
Plaintiff Lyle Chandler has diabetes mellitus that requires
insulin for control. Plaintiff Adolphus Maddox has impaired
vision in his left eye that cannot be corrected to meet minimum
standards. Both of these plaintiffs held positions with the City
that were classified as Primary Driver jobs.2 Only 138 of the
City's job classifications were considered Primary Driver jobs.
Chandler has required insulin for control of his diabetes
since 1977 and has been an employee of Dallas since 1981. In
1 Apparently, no waiver initially was available for failure to meet a standard. Presently, all conditions are waivable except substandard vision, alcoholism, and drug abuse. 2 The positions held by Chandler and Maddox were subsequently reclassified as non-primary driver jobs. The plaintiffs do not allege any impropriety in either the original classification or in the later reclassification. Neither do they contest the City's assertion that these positions were reclassified because the amount of driving associated with both positions had decreased. Additionally, Chandler has subsequently applied for and received a waiver allowing him to apply for primary driver positions.
2 1985, the Chandler failed his initial driver's physical because
of his diabetes. At that time he was employed as an Electrical
Repairer T-9, a Primary Driver position. Chandler was allowed to
retain that position on the condition that he be driven by
another co-worker when he had to go to another work site.
Chandler has had at least two major on-the-job hypoglycemic
episodes that required emergency medical treatment. He also
admits that he has had numerous other minor hypoglycemic
incidents, during which he was confused. Chandler has also had a
series of safety and misconduct incidents on the job. In 1986,
he caused a serious electrical accident that resulted in injuries
to himself and two co-workers. That same year, after a
subsequent safety violation and violation of personnel rules,
Chandler was demoted to Electrical Repairer T-7.
Maddox was hired by the City in 1982 and was promoted to
Plant Mechanic T-7 in 1983. Maddox failed his initial driver's
physical in 1985 because of poor vision in his left eye. Among
other problems, his vision in his left eye cannot be corrected to
better than 20/60 and his horizontal field of vision in that eye
is less than 70 degrees. As with Chandler, Maddox was allowed to
retain his then current position (which was also classified as a
Primary Driver position) on the condition that a co-worker drive
him when he needed to work at other facilities.
In December 1985, Chandler and Maddox filed suit against the
City, alleging that the Program discriminated against them in
3 violation of the Rehabilitation Act3 (the Act), the Fourteenth
Amendment, and 42 U.S.C. § 1983. They also sought to represent a
class of persons adversely affected by the Program. The
complaint was subsequently amended to include claims under the
Revenue Sharing Act4 and the Texas Commission on Human Rights
Act.5
The district court certified two classes of plaintiffs
(those with substandard vision and those with insulin dependent
diabetes) for purposes of injunctive relief. After a bench
trial, the court rendered judgment for the plaintiffs, but failed
to make findings of fact and conclusions of law. The City
appealed, and we vacated the judgment and remanded the case "for
detailed findings of fact and concomitant conclusions of law."6
On remand, the district court reinstated its judgment and made
findings of fact and conclusions of law. The City has again
timely appealed.
II
ANALYSIS
A. The Rehabilitation Act
The Act prohibits discrimination against otherwise qualified
individuals with handicaps in programs that receive federal
3 29 U.S.C. § 701-796. 4 31 U.S.C. § 6701 et seq.. 5 Tex. Rev. Civ. Stat. Ann. art. 5221k. 6 Chandler v. City of Dallas, 958 F.2d 85, 90-91 (5th Cir. 1992).
4 financial assistance.7 The Act is intended to ensure that
handicapped individuals receive the same treatment as those
without handicaps.8 To qualify for relief under this statute, a
plaintiff must prove that (1) he was an "individual with
handicaps"; (2) he was "otherwise qualified"; (3) he worked for a
"program or activity" that received federal financial assistance;
and (4) he was adversely treated solely because of his handicap.9
The burden of proof for each of these elements lies with the
plaintiff.10
1. Individual with Handicaps
The relevant definition of the term "handicap" is critical
to determining when a person can recover under the Act. For
employment purposes, the Act defines an "individual with
handicaps" as a person "who (i) has a physical or mental
impairment which substantially limits one or more of such
person's major life activities, (ii) has a record of such an
impairment, or (iii) is regarded as having such an impairment."11
The plaintiffs argue both that they are handicapped under
7 The Act has been amended since the instant suit was filed. Among the changes to the Act was the substitution of the term "individual with a disability" for the original term "individual with handicaps." As we are required to apply the statute as it existed when this suit was filed (See Chiari v. City of League City, 920 F.2d 311, 315 (1991)), we will continue to use this now superseded terminology. 8 Chiari, 920 F.2d at 315. 9 Id.; see 29 U.S.C.S. § 794. 10 Chiari, 920 F.2d at 315. 11 29 U.S.C.S. § 706(8)(B) (1990).
5 subsection (i) and that the City treated them as being
handicapped under subsection (iii). Predictably, the City takes
the opposite position on both of these claims.
Although the Act contains a definition of "handicap," it
does not define the terms used in that definition. We are not
without guidance, however, for the Supreme Court directs us to
the Department of Health and Human Services (DHHS) regulations
intended to implement the Act.12 Those regulations define a
physical impairment as
any physiological disorder or condition, cosmetic disfiguration, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal, special sense organs; respiratory, including speech organs, cardiovascular; reproductive, digestive, genito-urinary; hemic and lymphatic; skin; and endocrine.13
"Major life activities" are defined as "functions such as caring
for one's self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working."14
According to these same regulations, a person is regarded as
having an impairment that would constitute a handicap if he
(A) has a physical or mental impairment that does not substantially limit major life activities but that is treated by [an employer] as constituting such a limitation; (B) has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
12 School Board of Nassau Co. v. Arline, 480 U.S. 273, 280 (1987). 13 45 C.F.R. § 84.3(j)(2)(i) (1992). 14 45 C.F.R. § 84.3(j)(2)(ii) (1992).
6 (C) has none of the [above described impairments] but is treated by [an employer] as having such an impairment.15
a. Impaired Vision as a Handicap
This court has previously held that a person is not
handicapped if his vision can be corrected to 20/200.16 Clearly,
if vision that can be corrected only to 20/200 does not
constitute a handicap, neither does vision that can be corrected
to 20/60. Further, Maddox himself testified at length that his
impaired vision did not substantially limit any of his major life
activities. As Maddox failed to establish that his impaired
vision substantially limits one or more of his major life
activities, he is not handicapped under the first prong of the
statutory definition of an individual with handicaps.17
b. Insulin Dependent Diabetes as a Handicap
The City contends that Chandler is not handicapped because
he failed to establish that his insulin dependent diabetes
substantially limits any of his major life activities. Indeed
Chandler himself testified that he did not consider his diabetes
to be a substantial limitation on his major life activities.
Given this testimony and the absence of any evidence to the
contrary, we hold that Chandler failed to establish that he was
handicapped by his insulin dependent diabetes.
15 45 C.F.R. § 84.3(j)(2)(iv) (1992). 16 Collier v. City of Dallas, No. 86-1010 (5th Cir. August 19, 1986) (unpublished). 17 See 29 U.S.C.S. § 706(8)(B)(i) (1990).
7 Chandler advances an alternative argument that insulin
dependent diabetes should be considered a handicap per se.
Neither this nor any other circuit court has addressed whether
insulin dependent diabetes constitutes a handicap per se. No
explicit guidance is available from the Act itself or the DHHS
regulations as neither expressly discusses diabetes. Chandler
therefore bases his argument on language contained in the
commentary to the Equal Employment Opportunity Commission (EEOC)
regulations promulgated to implement the Americans with
Disabilities Act (the ADA).
The ADA defines a disability in substantially the same terms
as the Act defines an individual with handicaps (now an
individual with a disability).18 Stressing the similarities
between the Act and the ADA, Chandler urges us to look to the ADA
and the regulations promulgated under that act for additional
guidance as to what constitutes a handicap under the Act.
The EEOC's implementing regulations for the ADA became
effective on July 26, 1992.19 In them, the EEOC uses the same
18 Compare Rehabilitation Act, 29 U.S.C. § 706(8)(B) (defining an "individual with handicaps" (now an "individual with a disability") as a person "who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment") with Americans with Disabilities Act, 42 U.S.C. § 12102 (defining the term disability, with respect to an individual, as "(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"). 19 See 29 C.F.R. part 1630, § 1630.1 (1992).
8 definitions for key terms as does the DHHS in its regulations
implementing the Act.20
The EEOC also included an appendix to 29 C.F.R. part 1630
entitled "Interpretive Guidance on Title I of the Americans with
Disabilities Act." In the Interpretive Guidance, the EEOC notes
that the ADA term "disabilities" is substantively equivalent to
the term "handicaps" in the Act.21 Of particular significance to
the instant case is another statement in this appendix. In its
discussion of the term "substantially limits," the EEOC states
that "a diabetic who without insulin would lapse into a coma
would be substantially limited because the individual cannot
perform major life activities without the aid of medication."22
Thus, the EEOC apparently considers that any insulin
dependent diabetic has a disability per se under the ADA. The
issue remains whether this statement mandates that such a person
also has a handicap per se under the Act. Nonetheless, we need
not decide that issue today because even if we assume arguendo
that Chandler is "handicapped" for purposes of the Act, he has
failed to establish that he was "otherwise qualified" for Primary
Driver jobs.23
c. Regarded as Handicapped
20 See 29 C.F.R. § 1630.2 (1992). 21 29 C.F.R. Part 1630, Appendix to Part 1630))Interpretive Guidance on Title I of the Americans with Disabilities Act, § 1630.1(a). 22 Id. at § 1630.2(j). 23 See infra Part II(A)(2).
9 Maddox and Chandler alternatively argue that they are
handicapped under the third prong of the statutory definition
because the City regards them as having such impairments.24 They
insist that the City regarded them as handicapped because it
excluded them from Primary Driver jobs based on their
impairments. According to the plaintiffs, this exclusion, by
itself, constitutes a substantial limitation on one of their
major life activities, i.e., working.
The issue of how limiting an employer must consider an
employee's impairment to be before the employer is held to regard
the employee as handicapped has been addressed by several courts.
In Forrisi v. Bowen,25 the Fourth Circuit considered the case of
an employee with acrophobia (a fear of heights) who was
discharged from his job because he could not climb ladders or
stairs to certain heights, an integral part of his job. The
employee subsequently sued under the Act, claiming that he was
handicapped solely because the employer perceived him as being
handicapped. The Fourth Circuit held that the employer did not
regard the employee as handicapped simply because it found that
he could not meet the demands of this particular job. "The
statutory reference to a substantial limitation indicates instead
that an employer regards an employee as handicapped in his or her
ability to work by finding the employee's impairment to foreclose
24 See 29 U.S.C.S. § 706(8)(B)(iii) (1990). 25 794 F.2d 931 (4th Cir. 1986).
10 generally the type of employment involved."26
The Sixth Circuit held in Jasany v. United States Postal
Service that, as a matter of law, an employee with strabismus
(commonly knowns as "crossed eyes") was not regarded an
handicapped when he was fired from a position which his
strabismus prevented him from properly performing.27 The court
suggested that a number of factors should be considered in
determining whether a given impairment substantially limits an
individual's employment potential. These factors included the
number and type of jobs from which the individual was
disqualified, the geographic area to which he has reasonable
access, and the individual's employment qualifications.28 The
court concluded, "An impairment that affects only a narrow range
of jobs can be regarded either as not reaching a major life
activity or as not substantially limiting one."29
This court also has previously addressed this subject,
26 Id. at 935. 27 755 F.2d 1244, 1249-50 (6th Cir. 1985). 28 Id. at 1249; see also Welsh v. City of Tulsa, 977 F.2d 1415, 1419 (10th Cir. 1992) (applying these factors in affirming summary judgment against plaintiff on grounds that he failed to establish that he was regarded as handicapped). 29 755 F.2d at 1249 n.3. Such a "narrow range of jobs" need not be numerically insignificant. See, Daley v. Koch, 892 F.2d 212, 215 (2d Cir. 1989) (holding that a perceived impairment that prevented the plaintiff from successfully applying for a position as a police officer for the City of New York did not constitute a substantial limitation of a major life activity). This court takes judicial notice that New York City employs over 27,000 police officers, considerably more positions than are at issue in the instant suit.
11 albeit in abbreviated form. In an unpublished opinion, we
affirmed the district court's determination in Elstner v.
Southwestern Bell Telephone Co.30 that Southwestern Bell did not
regard Elstner as handicapped. Elstner was employed by
Southwestern Bell as a service technician, a job in which he was
required to climb telephone poles as an integral part of his job.
After Elstner injured his knee, he could no longer climb poles.
As a result, he was demoted to a lower paying job that did not
require him to climb poles. Elstner filed suit against
Southwestern Bell alleging, inter alia, violation of the Act.
The district court found that Elstner failed to establish that he
was handicapped; that his impairment did not substantially limit
a major life activity, and he was not regarded as handicapped by
Southwestern Bell on account of his impairment.31 The district
court found that even though Elstner had an impairment, it did
not substantially limit his ability to work or Southwestern
Bell's perception of his ability to work. Instead, Elstner's
injured knee disqualified him only from those positions that
required climbing.32 Southwestern Bell's perception that he was
able to work in other positions was evidenced by its retention of
Elstner in a position that did not require climbing.33 We
30 863 F.2d 881 (5th Cir. 1988) (unpublished opinion), aff'g 659 F. Supp. 1328 (S.D. Tex. 1987). 31 659 F. Supp. at 1343. 32 Id. 33 Id.
12 subsequently affirmed the district court's conclusion that
Elstner was not handicapped: "Because the plaintiff presented no
evidence that he was substantially limited in [a] major life
activity or in performing work-related functions in general, he
was not a handicapped person under either federal or state
law."34
In the instant case, both Chandler and Maddox appear to have
been capable of safely performing all duties of their respective
positions except driving. Significantly, the City recognized
their abilities to perform the balance of the duties associated
with the respective positions of Electrical Repairer and Plant
Mechanic. The City was aware of both subjects' impairments when
it hired them, but it hired them nonetheless. When their jobs
were classified as Primary Driver jobs, the City did not fire or
demote them to non-Primary Driver positions.35 Instead, it
retained them in those positions and ensured that another
employee would be available to drive for them. Neither did the
City bar them from promotional opportunities; they were only
disqualified from applying for Primary Driver positions. And,
promotional pathways that did not involve such positions remained
34 863 F.2d 881, slip op. at 2; see also de la Torres v. Bolger, 610 F. Supp. 593, 596-97 (N.D. Tex. 1985), aff'd, 781 F.2d 1134 (5th Cir. 1986) ("An impairment that interferes with an individual's ability to do a particular job, but does not significantly decrease that individual's ability to obtain satisfactory employment otherwise is not `substantially limiting' for purposes of the Rehabilitation Act.") 35 Cf. Forrisi v. Bowen, 794 F.2d 931 (employee terminated); Jasany, 755 F.2d 1244 (employee demoted).
13 available to both Chandler and Maddox.
An employer's belief that an employee is unable to perform
one task with an adequate safety margin does not establish per se
that the employer regards the employee as having a substantial
limitation on his ability to work in general. The only relevant
limitation perceived by the City regarding the plaintiffs'
ability to work concerned their abilities to drive City vehicles
on the job without risk to themselves or others. Chandler and
Maddox failed to adduce sufficient evidence to support a finding
that the City regarded them as handicapped.
2. "Otherwise Qualified"
Taken literally, "otherwise qualified" could be defined to
include those persons who would be able to meet the particular
requirements of a particular program "but for" the limitations
imposed by their handicaps. The Supreme Court, however,
expressly disapproved of such an interpretation because of the
absurd results that would be produced.36 "Under such a literal
reading, a blind person possessing all the qualifications for
driving a bus except sight could be said to be `otherwise
qualified' for the job of driving. Clearly, such a result was
not intended by Congress."37 The Supreme Court instead defined
an otherwise qualified person as "one who is able to meet all of
36 Southeastern Community College v. Davis, 442 U.S. 397, 406 (1979). 37 Id. at 407 n.7.
14 a program's requirements in spite of his handicap."38
The definition of a qualified handicapped individual also
includes a personal safety requirement))an otherwise qualified
handicapped individual is defined as one who "can perform the
essential functions of the position in question without
endangering the health and safety of the individual or others."39
"[U]nder section 504, an individual is not qualified for a job if
there is a genuine substantial risk that he or she could be
injured or could injure others, and the employer cannot modify
the job to eliminate that risk."40
Therefore, to determine whether an individual is otherwise
qualified for a given job, we must conduct a two part inquiry.
First, we must determine whether the individual could perform the
essential functions of the job, i.e., functions that bear more
than a marginal relationship to the job at issue.41 Second, if
(but only if) we conclude that the individual is not able to
perform the essential functions of the job, we must determine
whether any reasonable accommodation by the employer would enable
him to perform those functions.42 As with establishing the
existence of a handicap, the burden lies with the plaintiff to
38 Id. at 406 (emphasis added). 39 Chiari, 920 F.2d at 317 (internal quotation, emphasis, and footnote omitted). 40 Id. 41 Id. at 315. 42 Id.
15 show that he is otherwise qualified.43
Under the Program, the City established three distinct
categories of drivers. Primary Drivers are those City employees
who are certified to operate a motor vehicle on public
thoroughfares for the City as an intrinsic part of their job
duties. Secondary Drivers are those City employees who are
certified to operate a motor vehicle on public thoroughfares for
the City as an adjunct duty to their job. Tertiary Drivers are
those City drivers who operate motor vehicles and automotive
equipment on City property where public access is limited. Only
Primary Drivers are subject to the strict physical standards of
the Program.
The plaintiffs do not seriously contest the City's assertion
that driving is an essential function of every Primary Driver
positions. Instead, they argue that they can safely perform all
of the functions of their respective jobs, including driving,
without accommodation. In taking that approach, the plaintiffs
failed to adduce sufficient evidence that would support a finding
that they were otherwise qualified for Primary Driver positions.
The Program is based on regulations promulgated by the
Federal Highway Administration, Department of Transportation, to
promote, inter alia, safe operation of motor vehicles.44 These
regulations provide in pertinent part that:
43 Id. 44 See 53 Fed. Reg. 18042 (1988); 35 Fed. Reg. 6458 (1970); 34 Fed. Reg. 9080, 9081 (1969).
16 A person is physically qualified to drive a motor vehicle if that person)) . . . . (3) Has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control; [and] . . . . (10) Has distant visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses, distant binocular acuity of at least 20/40 (Snellen) in both eyes with or without corrective lenses, field of vision of at least 70° in the horizontal meridian in each eye, and the ability to recognize the colors of traffic signals and devices showing standard red, green and amber; . . . .45
These regulations, including the provisions relating to insulin
dependent diabetes and impaired vision, have been in effect since
1970.46 Since that time, the Federal Highway Administration has
had numerous opportunities to revisit these regulations, and to
update and amend them if need be.47 Yet, the physical
requirements regarding insulin dependent diabetes and impaired
vision have remained unchanged. The statement of the
Administrator of the Federal Highway Administration in the
preamble to the proposed regulations remains valid to this day:
"Accident experience in recent years has demonstrated that
reduction of the effects of organic and physical disorders,
emotional impairments, and other limitations of the good health
45 49 C.F.R. § 391.41(b) (1992). 46 See 34 Fed. Reg. 9080 (1969) (notice of proposed rule making); 35 Fed. Reg. 6458 (1970) (notice of final rule). 47 See 55 Fed. Reg. 3546 (1990); 53 Fed. Reg. 47134 (1988); 53 Fed. Reg. 18042 (1988); 51 Fed. Reg. 17568 (1986); 43 Fed. Reg. 56900 (1978); 36 Fed. Reg. 12857 (1971); 36 Fed. Reg. 222 (1971); 35 Fed. Reg. 17419 (1970).
17 of drivers are increasingly important factors in accident
prevention."48
After implementing these regulations, the Federal Highway
Administration received several petitions for reconsideration.
The Director of the Bureau of Motor Carrier Safety (acting under
authority delegated to him by the Administrator) responded to
objections that the medical qualifications of § 391.41 were
unduly stringent by stating: "In this area, however, the Director
believes that the risks are so well known and so serious as to
dictate the utmost caution. Hence, except as noted below, the
physical qualifications are unchanged."49 The standards for
diabetes and vision are not among those that were altered in
response to these petitions for reconsideration.
The issue whether an insulin dependent diabetic is otherwise
qualified for positions involving driving or other high risk
activities has been addressed by several federal courts. Those
courts have uniformly held that insulin dependent diabetics
present an unacceptable risk, and are thus not otherwise
qualified, to be employed as, inter alia, sanitation truck
drivers50 or special agents with the Federal Bureau of
48 34 Fed. Reg. at 9081; see also 35 Fed. Reg. at 6458 (stating that the Administrator remains convinced that this statement "still holds true."). 49 35 Fed. Reg. at 1749. 50 Serrapica v. City of New York, 708 F. Supp. 64, 73 (S.D.N.Y. 1989).
18 Investigation.51 We are aware of no cases holding that insulin
dependent diabetes does not present an significant risk in
connection with the operation of motor vehicles on public
highways.
We hold that, as a matter of law, a driver with insulin
dependent diabetes or with vision that is impaired to the extent
discussed in 49 C.F.R. § 391.41 presents a genuine substantial
risk that he or she could be injured or could injure others.52
We echo the sentiment expressed by another panel of this court in
Collier: "Woe unto the employer who put such an employee behind
the wheel of a vehicle owned by the employer which was involved
in a vehicular accident."53
As neither Chandler nor Maddox was otherwise qualified for
Primary Driver positions in the absence of any employer
accommodation, we must answer the second question of the
analysis))whether any reasonable accommodation by the City would
have enabled them to perform the essential functions of those
51 Davis v. Meese, 692 F. Supp. 505, 521 (E.D. Pa. 1988), aff'd, 865 F.2d 592 (3d Cir. 1989). 52 We nonetheless share the hope of the court in Davis that medical science will soon progress to the point that "exclusions on a case by case basis will be the only permissible procedure; or, hopefully, methods of control may become so exact that insulin-dependent diabetics will present no risk of ever having a severe hypoglycemic episode." 692 F. Supp. at 520. But, as Chandler's two severe hypoglycemic reactions while employed by the City amply demonstrate, it has not yet reached that point. 53 Collier v. City of Dallas, No. 86-1010, slip op. at 3 (5th Cir. August 19, 1986) (unpublished).
19 positions.54 For if reasonable accommodation will not eliminate
a significant safety risk, a handicapped person is not otherwise
qualified.55
The record is conspicuously devoid of any evidence from
Chandler or Maddox that reasonable accommodation was possible,
much less that it would eliminate any safety risk inherent in
their driving.56 This evidentiary void is fatal to Plaintiffs'
claims, given their burden of establishing that reasonable
accommodation is possible so that they would be otherwise
qualified for their respective positions if they were so
accommodated.57 As we find that neither plaintiff was otherwise
qualified, in the absence of accommodation, because the posed a
substantial risk of injury, the absence of evidence that
reasonable accommodation could be made eschews the possibility
that either plaintiff was "otherwise qualified." Therefore, the
trial court clearly erred in holding that the plaintiffs were
otherwise qualified for Primary Driving positions.
It follows that, as neither Chandler nor Maddox adduced
54 Chiari, 920 F.2d at 315. 55 Arline, 480 U.S. at 287 n.16. 56 Cf. Wood v. Omaha School Dist., 985 F.2d 437, 438-39 (8th Cir. 1993) (holding that Type II (non-insulin dependent) diabetic plaintiffs raised a genuine issue of material fact by presenting evidence regarding how they could readily monitor their blood sugar levels and maintain them at proper levels during work so as to reduce or eliminate the risk of a hypoglycemic reaction while driving). 57 Chiari, 920 F.2d at 315; Wood v. Omaha School Dist., 985 F.2d 437, 439 (8th Cir. 1993).
20 sufficient evidence to support findings that they were both
handicapped and otherwise qualified, their claims under the Act
necessarily fail. We therefore need not address the remaining
elements of their claims under the Act, i.e., whether they worked
for a program or activity that received federal financial
assistance and whether they were adversely treated solely because
of any handicap.
C. Class Certification
The City argues that the district court improperly certified
the two subclasses of plaintiffs because the determinations of
whether an individual is handicapped or "otherwise qualified" are
necessarily individualized inquiries. We agree.
"The question of whether an impairment constitutes a
substantial limitation to a major life activity is best suited to
a case-by-case determination."58
To answer this question [of whether a person is otherwise qualified] in most cases, the District Court will need to make an individualized inquiry and made appropriate findings of fact. Such an inquiry is essential if § 504 is to achieve its goal of protecting handicapped individuals from deprivations based on prejudices, stereotypes, or unfounded fear, while giving appropriate weight to such legitimate concerns of grantees as avoiding exposing others to significant health and safety risks.59
As the facts of the instant case amply demonstrate, the effect of
58 Elstner v. Southwestern Bell Telephone Co., 659 F. Supp. 1328, 1342 (S.D. Tex. 1987), aff'd, 863 F.2d 881 (5th Cir. 1988) (internal quotation omitted); see also Forrisi v. Bowen, 794 F.2d 931, 933 (4th Cir. 1986) ("The inquiry is, of necessity, an individualized one))whether the particular impairment constitutes for the particular person a significant barrier to employment."). 59 Arline, 480 U.S. at 287 (emphasis added).
21 a given type of impairment, both on major life activities in
general and on a person's ability to perform specific tasks, can
vary widely from individual to individual. One person with
impaired vision may simply need to wear glasses, while another
may need a guide dog. The prospect of continuing medical
advances in the treatment of diabetes (at an inherently
unpredictable rate), further supports the need for individualized
inquiries in this area. We conclude that class certification and
class relief are inappropriate in the instant case.
D. Constitutional Rights
The district court awarded the plaintiffs equitable relief
and compensatory damages under 42 U.S.C. § 1983 for violations of
their Constitutional rights. The plaintiffs argue that their
First Amendment rights were violated by the City's taking
retaliatory action against them for opposing the application of
the Program. They also argue that they were denied equal
protection and due process because the City did not have a
rational basis for discriminating against them and because
Chandler was not given adequate opportunity to be heard in
relation to his demotion.
The City responds by insisting that the plaintiffs' failure
properly to plead a First Amendment cause of action precluded the
district court from rendering judgment for them on such a cause
of action. Rule 8 of the Federal Rules of Civil Procedure does
require "a short and plain statement of the claim showing that
22 the pleader is entitled to relief."60 Although the plaintiffs
failed to comply with this rule, their First Amendment claim was
included in the Joint Pre-Trial Order. Once entered, the pre-
trial order generally controls the scope and course of the
trial.61 Further, the City has failed to demonstrate any
prejudice resulting from the failure of the plaintiffs properly
to amend their pleadings. Nonetheless, assuming without so
deciding that the plaintiffs were not precluded from bringing
this claim, they failed to adduce sufficient evidence to support
a judgment in their favor. Even if we make the additional
assumption that the plaintiffs engaged in protected speech (a
proposition on which we have serious doubts), they failed to
establish any causal nexus between such speech and any injury
they may have incurred.
The plaintiffs' equal protection and due process claims are
equally meritless. As discussed at length above, and contrary to
the district court's conclusion, the City did have a rational
basis for adopting and maintaining the Program and its
classification of the plaintiffs. And, even though the City
apparently did not afford Chandler all the latitude he desired at
the administrative hearing concerning his demotion, the hearing
it did provide was constitutionally adequate.62
60 Fed. R. Civ. P. 8(a)(2). 61 Flannery v. Carroll, 676 F.2d 126, 129 (5th Cir. 1982). 62 See Davis v. Scherer, 468 U.S. 183, 192 & n.10 (1984); Arnett v. Kennedy, 416 U.S. 134 (1974).
23 As the plaintiffs have failed to establish any actionable
violation of their constitutional rights, they are not entitle to
relief under 42 U.S.C. § 1983.
E. Texas Commission on Human Rights
The Texas Supreme Court has adopted a very restrictive
definition of "handicap" for purposes of the Texas Commission on
Human Rights Act.63 In Chevron Corp. v. Redmon,64 that court
expressly rejected the definition of an "individual with
handicaps" from the federal Rehabilitation Act.65 The court
instead defined handicap as a disability "which is generally
perceived as severely limiting in performing work-related
functions in general."66 Further, "a person may not sue [under
art. 5221k] if his handicap impairs his ability to do that
particular job."67 The court also decided, as a matter of law,
that vision which could not be corrected to 20/60 or better did
not constitute "those severe impairments which article 5221k was
intended to protect."68 The failure of the plaintiffs' claims
under the Rehabilitation Act clearly precludes them from
recovering under the stricter Texas statute.
63 Tex. Rev. Civ. Stat. Ann. art 5221k. 64 745 S.W.2d 314 (Tex. 1987). 65 Id. at 318. 66 Id. 67 Id. 68 Id.
24 III
CONCLUSION
The plaintiffs failed to establish that they were both
handicapped and otherwise qualified, either with or without
reasonable accommodation by the City, for Primary Driver
positions. Consequently, their claims under the Rehabilitation
Act must fail. Further, class certification and relief are
inappropriate in the instant case, given the strong preference
for individualized determinations under the Act. As the
plaintiffs' claims fail to meet the standards of the Act, so to
do they fail to meet the more stringent standards of the Texas
Commission on Human Rights Act. Finally, the plaintiffs failed
to establish any Constitutional violations that would permit
recovery under 42 U.S.C. § 1983.
For the foregoing reasons, we REVERSE the decision of the
district court and RENDER judgment for the City of Dallas on all
counts and in all respects.