|United States District Court |
|Southern District of Mississippi |
|JACKSON DIVISION |
UNITED STATES OF AMERICA
Plaintiff
v Civil Action No: 3:00CV377BN
MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY
Defendant
UNITED STATES MEMORANDUM IN OPPOSITION
TO THE DEFENDANTS MOTION FOR SUMMARY JUDGMENT
I INTRODUCTION
In 1993, Ronnie Collins arrived at the Mississippi Department of
Public Safety MDPS Highway Patrol Training Academy the Academy to
fulfill his life-long goal of becoming a Trooper At that time, he had
served in law enforcement for 13 years, and resigned his position as a
police officer and as a correctional officer for this opportunity Knowing
that Mr Collins had insulin-dependent diabetes and used food and insulin
to manage his diabetes, MDPS had medically qualified him for the Academy
Nonetheless, during the two first days at the Academy, MDPS denied or
interfered with three requests by Mr
Collins for food-related
accommodations
As a consequence, two days after starting at the Academy, Mr Collins
was found sitting on his bunk, in a state of profound hypoglycemia low
blood sugar Because of his illness, he was disoriented and unable to
comply with orders from the training officers that he go to physical
training When an officer touched his shoulder to turn him around, Mr
Collins - in a responsive gesture - allegedly grabbed the shirt of the
training officer MDPS immediately terminated Mr Collins and put him in a
car to drive home, even though he was confused and experiencing memory loss
from hypoglycemia
MDPS claims that its termination of Mr Collins was justified,
because it has a right to dismiss a cadet for misconduct, even if the
conduct is caused by a disability Defendants argument is fatally flawed,
however, because it ignores its own failure to reasonably accommodate Mr
Collins MDPS deprived Ronnie Collins of the only reasonable accommodation
he needed and asked for - extra food MDPS cannot lawfully deprive an
individual of the medication that he needs to control his diabetes ie
food and then terminate him when he becomes ill due to lack
of
accommodation
II APPLICABLE LAW
A Summary Judgment Standard
Summary judgment should be rendered only if the pleadings,
depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any,
show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law Fed R Civ P
56 A factual dispute is material only if it might affect the outcome of
the suit under the governing law Anderson v Liberty Lobby, Inc, 477
US 242, 248 1986 Whether a genuine issue of material fact is
presented will be determined by asking if a reasonable jury could return a
verdict for the non-moving party Id When evaluating a motion for
summary judgment, the facts are to be construed in a light most favorable
to the non-moving party Matsushita Electric Industrial Co v Zenith
Radio Corp, 475 U S 574, 587 1986 The district court must not
resolve factual disputes by weighing conflicting evidencesince it is
the province of the jury to assess the probative value of the evidence
Kennett-Murray Corp v Bone, 622 F2d 887, 892 5th Cir 1980 Summary
judgment is improper where
the court merely believes it unlikely that the
non-moving party will prevail at trial National Screen Serv Corp v
Poster Exchange, Inc, 305 F2d 647, 651 5th Cir 1962
B Americans With Disabilities Act Standards
The ADA prohibits an employer from discriminating against a
qualified individual with a disability, who is an employee or applicant,
because of his or her disability 42 USC 12112a
Discrimination under the statute includes:
not making reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability who
is an applicant or employee, unless such covered entity can
demonstrate that the accommodation would impose an undue hardship on
the operation of the business of such covered entity 42 USC
12112b5A
Disability is defined in the statute 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 impairment1
To establish a prima facie case of disability discrimination under
the
ADA, the United States must demonstrate that the Charging Party: 1 is
an individual with a disability; 2 is otherwise qualified to perform the
job requirements, with or without reasonable accommodation;
and 3 suffered an adverse employment action because of his disability2
III DISPUTES OF MATERIAL FACT PRECLUDE SUMMARY JUDGMENT
A There Is a Dispute of Material Fact As To Who Was Responsible
for Mr Collins Hypoglycemia at the Academy
In 1987, Ronnie Collins was diagnosed with diabetes, and in 1988, Mr
Collins began the painful, lifelong process of injecting himself with
insulin every day Ex 1, Walt Med Rec USID00249, US00298, US00300
Because of his diabetes, Mr Collins overhauled his eating habits and began
the constant task of regulating his food based upon his insulin and
activity level Ex 2, Collins Dep at 134; Ex 3, Linda Collins Aff
While Defendant asserts that Mr Collins did not possess an adequate
understanding of diabetes self-care, Defs Br at 3, in fact, Dr Frank
Vinicor, MD, MPH,3 one of the nations leading experts on diabetes
care, has stated that Mr Collins diabetes treatment in 1993 was at an
appropriate and acceptable standard
of care, and Mr Collins had a sound
understanding of how to manage his diabetes at that time4 Ex 4, Vinicor
Dep at 15, 21-22, 84-85; Ex 2, Collins Dep at 9, 12-13, 17-19
In 1993, Mr Collins managed his diabetes with insulin and food,
taking into consideration his activity level, and when necessary, adjusting
how much and when he ate He always had to think about eating, and as he
explains, he basically has to eat constantly, it seems, on a regular basis
just in order to feed it I have to feed it so that way it wont consume
me Ex 2, Collins Dep at 137 Because of his diabetes, Mr Collins
no longer has the choice of whether to eat or not to eat He must
carefully monitor not only the types of foods he eats, but also the portion
size, how often he eats, and when he eats Ex 2, Collins Dep at 13,
134 If Mr Collins deviates from his required diet, he will pay for it
dearly with either the uncomfortable symptoms of hyperglycemia high blood
sugar, or the potentially life threatening symptoms of hypoglycemia low
blood sugar Ex 2, Collins Dep at 134, 136
From his diagnosis through 1993, Mr Collins blood sugar levels
tended to run high Ex 4, Vinicor Dep at 71; Ex 6, Walt Dep
at 37
As directed, Mr Collins periodically tested his urine to determine whether
his sugar level was too high Ex 7, Vinicor Expert Rep at US00333
Mr Collins did not test his blood sugar level for lows because he was
easily able to feel his symptoms of low blood sugar, which included
sweating, hunger, tingling of the fingertips and lips, and quivering leg
muscles, and to correct them with food Ex 2, Collins Dep at 11, 31
When Mr Collins experienced initial symptoms of hypoglycemia, he would
immediately eat a peppermint candy which he routinely carried with him,
drink a cola, or take some other available simple sugar, and then stop what
he was doing to get more substantial food Ex 2, Collins Dep at 12,
131; Ex 4, Vinicor Dep at 77 That Mr Collins never had a major
hypoglycemic episode until he attended the Academy, Ex 2, Collins Dep at
90-91, is further evidence of his ability to accurately recognize and
correct the symptoms of hypoglycemia, when he has access to food
With very hard work, regular attention to his food intake, exercise,
and insulin use, Mr Collins successfully worked in law enforcement for 13
years before attending the Academy Ex 8, Collins MDPS Application
at
USID00224 He worked as a full-time Correctional Officer for the
Mississippi Department of Corrections in Parchman and as a full-time police
officer for Drew, Mississippi, working both jobs simultaneously at times
Id In 1990, Mr Collins successfully completed the quasi-military
training academy required by his position as a Drew police officer Ex 9,
Robinson Aff His supervisors, at both Drew and Parchman, respectively
describe him as an excellent police officer and as one of the best
employees I ever had Id; Ex 10, Armstrong Aff
In 1993, Mr Collins was accepted to the MDPS Academy Class 48,
conditioned upon his successful completion of their pre-employment
procedures, including a medical examination Ex 11, Stewart Dep at 14-
16 Mr Collins was thrilled to be accepted to the Academy - becoming a
Mississippi State Highway Patrol Trooper was his chosen career, the goal
of his lifetime Ex 12, Parchman Resignation Letter; Ex 2, Collins Dep
at 112 At the medical exam, Mr Collins advised Dr Mark Brooks a
contract physician who performed the applicant medical examinations in
1993 and Lt Col Stewart the MDPS personnel director and ADA
Coordinator, who was present at Mr Collins
medical exam that he had
diabetes and used insulin Ex 2, Collins Dep at 15 The purpose of
the exam was to evaluate whether each applicant was medically qualified to
attend the Academy and to work as a trooper Ex 13, 30b6 Dep at
56 At the medical exam, applicants listed their medications and health
conditions, and among other things, had their blood sugar tested Id at
56-57 Dr Brooks was directed to screen out applicants with health
conditions which made them unfit Id at 63-64 It was his
responsibility, when necessary, to request further information from the
applicants physician, and to advise MDPS staff of any potential health
issues Id at 64, 66-68 Dr Brooks noted that Mr Collins blood sugar
was high and discussed Mr Collins diabetes with him and Lt Col Stewart
Ex 11, Stewart Dep at 19-20 Dr Brooks approved Mr Collins as
medically qualified to attend the Academy
Although Mr Collins told Dr Brooks and Lt Col Stewart himself a
graduate of the Academy that he used insulin and food to control his
diabetes, neither MDPS representative advised Mr Collins that the Academy
had rules and practices which would curtail Mr Collins access to food
Ex 2, Collins Dep at 141-142; Ex
11, Stewart Dep at 20-21, 46 More
specifically, neither Lt Col Stewart nor Dr Brooks ever advised Mr
Collins that, among other things, he would be barred from using the vending
machines at the Academy, requesting a larger portion size from the
cafeteria workers, or going through the cafeteria line a second time to
request more food Id; Ex 14, Haskins Aff, Mangum Aff In fact, the
only mention of food at the medical examination was when Lt Col Stewart
asked Mr Collins if he needed special food while at the Academy Mr
Collins replied that he did not need special food, and that he could eat
the regular food at the Academy, as he had when he went through basic
training at the same facility Ex 11, Stewart Dep at 45-46; Ex 2,
Collins Dep at 108 In addition, neither Dr Brooks nor Lt Col
Stewart discussed with Mr Collins the timing, intensity or duration of the
physical activities required at the Academy Ex 13, 30b6 Dep at 58-
59
Contrary to Defendants allegations, Mr Collins could not have been
aware of the Academys rules and policies relating to food which it claims
are contained in the Cadet Manual before arriving at the Academy Defs
Br at 5 The only written information
that he recalls receiving before
arriving at the Academy was a list of items to bring included with his
acceptance letter Ex 2, Collins Dep at 19 And, in answering
interrogatories, MDPS stated that the Manual is believed to have been
distributed on August 29, 1993 during cadet orientation Ex 15, Defs
Response to Pls Interrog 13 Even if Mr Collins received the Cadet
Manual before arriving, it did not explain that cadets may not get a second
portion at meal time; nor did it state that cadets cannot ask for - and
that cafeteria workers are not supposed to give - extra portions Ex 16,
Cadet Manual at 7-8; Ex14, Haskins Aff, Mangum Aff
Defendant argues that [b]y reading the Cadet Manual, Collins
obtained a basic understanding of the exercise arrangements at the
training academy, and he should have adjusted his insulin dosage
accordingly Defs Br at 5, 22 To the contrary, the United States
maintains that it was not common in 1993 for an individual to self-adjust
his insulin, and that the Manual did not contain the detailed information
as to the intensity, timing, and duration of exercise that an individual
would require to manipulate his insulin dosage Ex 4, Vinicor Dep at
31-
32, 107; Ex 16, Cadet Manual at 4, 20 Further, Mr Collins doctor had
not recommended that Mr Collins manipulate his insulin Ex 1, Walt Med
Rec at US00298
Training officers at the Academy, who supervise the cadets, are
experienced troopers who volunteer and are selected by MDPS to be assigned
to temporary duty as the TAC officers for the Academy Ex 17, McCain
Dep at 9-10 Being a training officer or TAC officer is an honor and
a privilege at the Highway Patrol Ex 18, Shelbourn Dep at 13 MDPS
did not, however, provide any specific instruction with respect to being a
TAC officer at the Academy Ex 19, White Dep at 14; Ex 17, McCain Dep
at 9 Nor did MDPS educate its training officers about the ADA or the
obligation to provide reasonable accommodations Ex 11, Stewart Dep at
25; Ex 17, McCain Dep at 27; Ex 18, Shelbourn Dep at 23; Ex 20, Brown
Dep at 26 Rather, the officers were provided only one policy on the
ADA, which lacks any procedure for requesting or responding to reasonable
accommodations Ex 21, Order 00/07; Ex 13, 30b6 Dep at 7-8
B There Are Disputes Of Fact As To Whether Mr Collins Requested
Food-Related Accommodations At The Academy And
Whether MDPS
Denied Them
For Cadet Class 48, Capt Lee Shelbourn was serving as the lead
Training Officer in charge for his first time Ex 18, Shelbourn Dep at
15 Also, several of the training officers, including Sgt McCain,
Trooper Brown, and Trooper White, were working at the Academy for their
first time Ex 19, White Dep at 6; Ex 20, Brown Dep at 19; Ex 17,
McCain Dep at 13 And while a number of incumbent troopers have
diabetes, Mr Collins may have been one of the first cadets with insulin-
dependent diabetes to attend the Academy Ex 11, Stewart Dep at 11-12;
Ex 22, Claiborne Dep at 36
The atmosphere at the Academy was intimidating and hierarchical
Ex19, White Dep at 8-9; Ex 18, Shelbourn Dep at 6 The program was a
rigorous, paramilitary Academy, governed by strict rules and regulations
Ex 18, Shelbourn Dep at 45; Ex 23, Marlow Dep at 46, 48 Cadets were
not permitted to initiate conversations with TAC officers unless necessary,
and as a general rule, were not to challenge TAC officers instructions
Id at 22; Ex 17, McCain Dep at 30; Ex 19, White Dep at 21-22 When
a trooper had a notable interaction with a cadet, he was instructed to
reduce it to
writing in a Student Contact Form or TAC report Ex 17,
McCain Dep at 28
On August 29, 1993, Cadet Class 48 reported to the Academy at noon
Mr Collins, like most cadets, just wanted to blend in and not be noticed
Ex 2, Collins Dep at 143-144; Ex 17, McCain Dep at 30 The first day
at the Academy was grueling as the cadets engaged in drilling ceremonies,
intensive exercise and orientation to the Academy Ex 23, Marlow Dep at
47 Nicknamed the longest day by the Training Officers, the 29th
included a quick dinner in the barracks a packaged tuna-fish sandwich and
unsweetened iced tea and lasted until 2:00 am when the Cadets were
finally permitted to go to the barracks to sleep Id Some time that
evening, Col Clark, the Chief of the Highway Patrol, advised several TAC
officers that Mr Collins had diabetes, and that they should keep an eye
on [him] Ex 2, Collins Dep at 29-30
Mr Collins made his first request for a reasonable accommodation at
approximately 2:00 am on August 30th, when he entered the training
officers office know as the TAC shack and requested to use the vending
machines to get additional food Ex 2, Collins Dep at 33-35; Ex 24,
TAC Rep at USID00244; Ex 23,
Marlow Dep at 36-37; Ex 17, McCain Dep at
37 Mr Collins explained that he had diabetes, that he had not had
enough food that day, and that his blood sugar was low Ex 2, Collins
Dep at 34; Ex 24, TAC Rep at USID00244; Ex 17, McCain Dep at 38
Officers Marlow and McCain refused his request to use the vending machines,
although they had the authority to allow him access Ex 23, Dep Marlow
at 41-42 Instead, Sergeant Marlow gave Mr Collins two packaged tuna-
fish sandwiches Id at 41; Ex 17, Dep McCain at 38
There is a factual dispute as to whether Mr Collins request to use
the vending machine was a request for a reasonable accommodation and
whether MDPS action constituted a denial of his request MDPS only
stated reason for disallowing Mr Collins request is that vending machine
use is a privilege thats granted somewhere in the trainingtheres no
magic datethe vending machines are downstairs and when we - a cadet
class is upstairswere isolating ourselves from the other training
thats going on at the academy Ex 23, Marlow Dep at 38 Although
the sandwiches raised Mr Collins blood sugar sufficiently for that night,
by denying him access to the vending machines, MDPS precluded him
from
buying non-perishable snacks to keep for a later time Moreover, by its
refusal, the Academy foreclosed the vending machine as an additional source
of calories for Mr Collins during his time there Ex 2, Collins Dep at
145-147 Marlow did not ask Mr Collins if the sandwiches were an
adequate substitute for the vending machines Id at146; Ex 24, TAC
Rep at USID00244; Ex 23, Marlow Dep at 42
Mr Collins second reasonable accommodation request came on the
afternoon of August 30th, as the cadets engaged in intense physical
exercise on the skid pad Because Mr Collins felt his blood sugar
falling, he put a peppermint candy in his mouth, as he routinely did Ex
2, Collins Dep at 41 Rather than permitting him to eat the candy and
continue with the exercise, Capt Shelbourn and another TAC officer shouted
at Mr Collins and ordered him to spit the candy out Id at 41-42; Ex
18 Shelbourn Dep at 44-45 According to two TAC reports, Mr Collins
explained that he needed the candy to raise his blood sugar for his
diabetes, and Capt Shelbourn told him to keep the candy in his mouth, but
to show the candy to him periodically Ex 24, TAC Rep at USID00239,
USID00242; Ex 18, Shelbourn Dep at
44-49 The directive to
periodically show Capt Shelbourn the candy made no sense to Mr Collins,
since he obviously needed to eat up the candy to get its benefit Ex 2,
Collins Dep at 42 Although Mr Collins was permitted to keep the candy,
he was also ordered to drop and do pushups Id; Ex 18, Shelbourn Dep
at 45-46; Ex 23, Marlow Dep at 51-52 The push-ups likely undermined
the effect that the peppermint would have had in raising Mr Collins blood
sugar Ex 4, Vinicor Dep at 77-78 As a result of this hostile
encounter, Mr Collins was intimidated from openly eating his peppermints
to supplement his sugar Ex 2, Collins Dep at 147
Mr Collins made his third request for accommodation during dinner in
the cafeteria Cadets were prohibited from speaking at meals, other than
to say grace Ex 17, McCain Dep at 44; Ex 16, Cadet Manual at 12
Contrary to Defendants assertion Defs Br at 8, cadets were not
permitted to ask the cafeteria workers for more of any particular food and
they, in turn, were told to serve measured portions and not to talk with
the cadets Ex 14, Haskins Aff, Mangum Aff; Ex 2, Collins Dep at 47-
48 During dinner and while several other cadets were still in
the
cafeteria, Mr Collins approached Sgt Marlow and asked him if he could
get another plate of food[stating] that because of his diabetic
condition he felt he needed more food Ex 2, Collins Dep at 48-49; Ex
24, TAC Rep at USID00238 Defendant disputes that it denied this
request for a reasonable accommodation Defs Br at 1 In his own
words, Sgt Marlow told Mr Collins that he should get enough food on the
first trip thru [sic] the line, and instead gave him a couple of pieces of
fruit, despite his authority to permit Mr Collins to get another plate of
food Id; Ex 2, Collins Dep at 48-49; Ex 23, Marlow Dep at 54
Sgt Marlow also told Mr Collins not to bother him again Ex 2,
Collins Dep at 48 Just like the evening before, Mr Collins requested
specific, available food for his diabetes and MDPS denied it and Sgt
Marlow did not ask if his substitution - the fruit - would be sufficient
The fruit was inadequate to maintain Mr Collins blood sugar at a safe
level Id at 55; Ex 4, Vinicor Dep at 81 Mr Collins took the fruit
with him to his barracks and ate it before going to bed Ex 2, Collins
Dep at 55
On the evening of August 30th at around 10:00 pm, the cadets were
sent to the
barracks for the night and the last thing that Mr Collins
recalls was sitting up in his bunk, grabbing a towel to wipe profuse sweat
off his forehead Ex 2, Collins Dep at 53-56 The next event that Mr
Collins recalls is sitting in the TAC shack with Capt Shelbourn screaming
in his ear that he had disobeyed an order Id at 56-58 Mr Collins
recalls that he asked what had happened, received no explanation, and was
completely at a loss to understand what was occurring
C There Are Disputed Issues of Material Fact As To Whether MDPS
Knew Or Should Have Known That Mr Collins Was Hypoglycemic On
August 31st
On the morning of August 31, 1993, as Defendant concedes, Mr Collins
was hypoglycemic Defs Br at 10 Based upon the written reports and
testimony, the events of August 31, are as follows At approximately 5:00
am, TAC officers woke the cadets and told them to report to the gym
Shortly thereafter, Trooper White noticed that Mr Collins was slow
getting up, and told him to get up and get dressed, get to PT, and Mr
Collins responded that he would [and] it wouldnt happen again Ex 19,
White Dep at 32 Trooper White checked in with Mr Collins a second
time
and noticed that Mr Collins had sat back down on his bunk and Trooper
White told Mr Collins again to get up and get dressed Id at 33 Mr
Collins again told Trooper White that he would get up Id On his way
out of the barracks, Trooper White found Mr Collins still sitting on his
bunk Id Trooper White told Mr Collins a third time that he needed to
get up and go [sic] PT and get his clothes on Id Mr Collins just
sat there in response to Trooper Whites request Id Trooper White
went to get assistance Id
At that time, Sgt McCain entered the barracks According to Sgt
McCain, he asked Mr Collins what the problem was and Mr Collins
responded that there was no problem and that he was getting it
together Ex 17, McCain Dep at 51-52 Mr Collins behavior was
unusual Id at 55 When Trooper White returned with Shelbourn, they
found Mr Collins still by his bunk Ex 18, Shelbourn Dep at 52 Capt
Shelbourn ordered Mr Collins to get his clothes on and go to PT Id
at 53; Ex 24, TAC Rep at USID00240-USID00241; Ex 19, White Dep at 34
Mr Collins did not go to the gym as ordered, but was not argumentative
Ex 18, Shelbourn Dep at 54; Ex 24, TAC Rep at USID00240-USID00241
At no time did Mr
Collins state that he did not want to go to PT or that
he wanted to quit; he simply did not get up Ex 17, McCain Dep at 59;
Ex 19, White Dep at 54; Ex 18, Shelbourn Dep at 62 When Mr Collins
finally stood, he turned toward his locker, perhaps to get something Id
at 54; Ex 24, TAC Rep at USID00240-USID00241 It was very unusual for
a Cadet to turn away from a training officer Ex 18, Shelbourn Dep at
56 Perhaps, by turning away from Capt Shelbourn, and not following his
direction, Mr Collins angered Shelbourn and the other officers
While Mr Collins had his back to Capt Shelbourn, he put his hand on
Mr Collins shoulder to turn him around Ex 24, TAC Rep at USID00240-
USID00241; Ex 17, McCain Dep at 52 In a reaction that the United
States maintains was caused by his hypoglycemia, Mr Collins grabbed
Capt Shelbourn by the shirt Ex 24, TAC Rep at USID00240; Ex 7,
Vinicor Expert Rpt at US00334-US00335 Immediately thereafter, Sgt
McCain and Trooper White escorted Mr Collins to the TAC shack to terminate
him for failing to obey a direct order Ex 25, Exit Statement; Ex 24,
TAC Rep at USID00240-USID00241 At no time did any of the TAC officers
feel threatened by Mr Collins Ex 17,
Shelbourn Dep at 56; Ex 19,
White Dep at 45 Mr Collins failed to sign his exit statement and
failed to write in a reason for his departure Ex 25, Exit Statement
While being processed out, Mr Collins recalled that Trooper White said
oh, youre a diabetic? Then we dont need you Ex 26, EAB
Transcript USID00152
Capt Shelbourn testified that if Mr Collins had said yes sir, and
then not responded, obviously a red flag would have gone up, and he would
have ensured Mr Collins received medical attention Ex 18, Shelbourn
Dep at 88 Although the TAC reports and testimony show that this is
precisely what happened, Capt Shelbourn did not seek medical assistance
for Mr Collins but instead terminated him Ex 25, Exit Statement
Trooper Brown - who was unaware of the earlier events - escorted Mr
Collins to the barracks to pack his belongings He noted that Mr Collins
appeared totally disoriented while helping him pack and escorting him to
his car Ex 24, TAC Rep at USID00237 Two Rankin County officers were
called to escort Mr Collins off the Academy grounds Ex 24, TAC Rep at
USID00241 While driving off the Academy grounds, Mr Collins stopped his
car and asked the officers for
directions because he could not recall which
way he should drive to go home Ex 2, Collins Dep at 58-59 During
that interaction, one of the officers told Mr Collins that a TAC officer
had said that they dont understand or see how [he] managed to get in due
to the fact that [he] was a diabetic Id at 126 Mr Collins drove off
the Academy grounds and recalls being at a fast food restaurant, ordering a
breakfast sandwich and juice Id at 59-61 Mr Collins recalls that
the drive-through window looked so distant, and his memory was going in
and out Id at 61 Along the way home, Mr Collins pulled his car to
the shoulder of the road and fell asleep Id at 63 He was awakened
when a truck passing by shook his vehicle Id Mr Collins arrived home
and called his doctor because he was very upset that he did not know what
had happened at the Academy and did not recall his drive home5 Id at
64
When Mr Collins arrived at Dr Walts office he was, according to
Dr Walt, confused, had a clouded memory and was talking in circles
Ex 6, Walt Dep at 17-18; Ex 1, Walt Med Rec at USID00247 Mr
Collins blood sugar was measured at a level of 39, which is very low
Id Dr Walt forced Mr Collins - who
initially refused - to drink a
Coke in order to immediately raise his blood sugar Id; Ex 6,Walt Dep
at 19
Based upon expert testimony and the TAC officers written description
of the events of that morning, it is evident that Mr Collins was
disoriented, hypoglycemic, and unable to fully comprehend what was going on
between 5:00 and 5:30 am, on August 31st, when MDPS terminated him Ex
7, Vinicor Expert Rep at US00334-US00335; See Facts, Supra at 12-14 As
a result of his severe hypoglycemia, Mr Collins experienced cognitive
dissonance Ex 4, Vinicor Dep at 47 The condition of cognitive
dissonance, which is a consequence of progressively severe hypoglycemia, is
characterized by a lack of higher cognitive function Id While an
individual may appear to be awake and alert, in fact, he is not truly aware
because his brain is starved for sugar Id While he was in that
impaired state that morning, none of the four MDPS officers who encountered
him offered Mr Collins food or medical assistance While Defendant
concedes that Mr Collins experienced hypoglycemia, it contends that the
hypoglycemia was caused by Mr Collins poor diabetes care Defs Br at
10, 22 The United States disagrees,
and contends that Mr Collins
hypoglycemia was caused by MDPS failure to allow him to access the
available foods that he requested from them
In the final analysis, it was Defendants obligation - under the ADA
as well as its own standards - to ensure that the TAC officers had a
sufficient understanding of diabetes to enable them to properly respond to
Mr Collins requests for food, and to recognize his hypoglycemia It is
the foremost obligation of the training officers to protect the health and
safety of the cadets Ex 23, Marlow Dep at 18-19; Ex 27, BLEOST Manual
2741 44135 at US00488, US00532-US00533 Second, the MDPS has
itself identified the ability to recognize a person as disturbed
mentally, emotionally, etc or incapacitated drunk, epileptic, etc as
an essential job task of a highway patrol trooper Ex 29, State Trooper
Task List at 24 Third, all MDPS troopers are required to annually update
their Red Cross First Aid certification, which, in 1993, included training
about recognizing and understanding diabetes Ex 30, Red Cross Training
Manual Despite these job requirements, the TAC officers failed to
protect Mr Collins health and safety and failed to recognize
or
acknowledge his hypoglycemia Instead, MDPS terminated him because of his
diabetes6
IV MDPS IS NOT ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW
A MDPS Has Not Shown That It Met Its Legal Duty To Reasonably
Accommodate Mr Collins Diabetes
An employer violates the ADA when it fails to make reasonable
accommodations to the known physical or mental limitations of an otherwise
qualified individual with a disability unless the employer can demonstrate
that the accommodation will impose an undue hardship7 After an employee
requests an accommodation, and makes known his disability and its
limitations, it is the employers obligation to respond to the request,
including, if necessary, initiating an informal, interactive process to
identify the appropriate accommodation8 While the employer is not
required to provide the exact accommodation requested, the employer must
provide an accommodation that enables the employee to perform the job If
the accommodation provided is not effective, then the employer has not met
its obligation9 Once an accommodation is properly requested, the employee
and employer share responsibility for fashioning the
appropriate
accommodation10 A reasonable accommodation is one that is feasible for
the employer, and once a request is made, it is the employers burden to
show that the accommodation causes an undue hardship11
Before Mr Collins arrived at the Academy, MDPS knew that he had
diabetes, and during the Academy, many of the TAC officers were informed
that Mr Collins had diabetes See Facts, Supra at 6-7, 9-12 Mr
Collins properly requested a reasonable accommodation on three occasions
during his two days at the Academy, and each time his requested
accommodation was denied or he was punished for the request Specifically,
Mr Collins requested to go to the vending machine, to eat a peppermint
candy while on the skid pad, and to get a second serving of food in the
cafeteria at dinner On each instance, Mr Collins identified the problem
he was having low blood sugar, its connection to his diabetes, and the
accommodation he needed to remedy the problem access to the vending
machines, a peppermint candy, a second portion of dinner food See
Facts, Supra at 9-12
To the extent that Defendant acknowledges these requests, it argues
that Mr Collins accommodation requests were
insufficient because they
were ad hoc, on-the-spot requests, directed to different training officers
and did not include necessary information about his limitations Defs
Br at 21 The contemporaneous TAC reports disprove these contentions
because they show that each request was made to a training officer with
supervisory responsibility for the cadets, and contained all necessary
information to be permissible under the ADA12 See Facts, Supra at 9-12
Reasonable accommodation requests can be made when an employee learns of
his need for the request - they do not need to be made in advance13
In a case presenting strikingly similar issues, EEOC Landers v Wal-
Mart, 99-CV-453, 2001 WL 1725300 WDNY Sept 28, 2001, the court
denied summary judgment to an employer who terminated a diabetic employee
for misconduct when he took an unauthorized lunch break There, the
employer claimed that none of its managers knew that the employee had
diabetes, and terminated the employee for insubordination Although the
defendant argued that the plaintiff never requested an accommodation, the
plaintiff alleged that the employer directed him not to take a lunch break,
while knowing that he had
diabetes and needed a regular lunch break, thus
denying him a reasonable accommodation The court, in denying summary
judgment, found that if, as plaintiffs contended, the store manager who
directed the employee not to take a lunch break was aware of his diabetic
condition, a jury could conclude that the employer was aware that he needed
such an accommodation and denied it
Although an employer need not give an employee exactly what he
requests, the employer is obligated to engage in an interactive process to
arrive at an appropriate accommodation14 An employer cannot drag its feet
when the need for the accommodation is immediate15 The TAC officers
admitted that Mr Collins requests were not burdensome and that they had
the ability to grant them16 See Facts, Supra at 10-12 Yet those same
TAC officers - none of whom had greater knowledge of diabetes than Mr
Collins - responded to Mr Collins requests by substituting their judgment
for Mr Collins Those substitutions were not effective Ex 4, Vinicor
Dep 81 When Mr Collins was told not to bother them about food again,
MDPS ended the discussion on the matter, thereby, arguably terminating the
interactive process17 In the
hierarchical structure of the Academy, Mr
Collins was not permitted to challenge an officer, and cannot be
responsible for failing to get the additional food that he needed18 See
Facts, Supra at 9
MDPS cannot show as a matter of law that it engaged in a discussion
or interactive process to determine what would have been an effective
accommodation for Mr Collins after any of his three requests A jury
could find, based on the record, that when the TAC officers denied Mr
Collins use of the vending machines, they denied his ability to purchase
additional snacks later without engaging in any discussion A jury could
also find that MDPS denied his request or discouraged future requests for
an accommodation when: 1 Capt Shelbourn yelled at Mr Collins and
ordered him to do push-ups for eating candy which likely undermined the
benefit that the candy would have on Mr Collins blood sugar level; and
2 when two TAC officers drafted reports noting the incident as a
Conduct issue See Facts, Supra at 11-12 Finally, an issue exists as
to whether, when Sgt Marlow substituted fruit for dinner food and told Mr
Collins not to bother him again for food, MDPS denied Mr Collins an
accommodation
and precluded further discussion See Facts, Supra at 12
Defendant has not offered any evidence that it met its legal burden to
engage in the interactive process in order to determine an appropriate
accommodation See Facts, Supra at 10-12
Rather, Defendant tries to escape liability for its actions by
arguing that the officers were placed in the impossible position of trying
to propose food related accommodations without having the relevant
information Defs Br at 22 To the contrary, Mr Collins made it
easy for them by requesting a specific accommodation: for example, to go
through the cafeteria line a second time, and Sgt Marlow had the authority
to allow him to do so See Facts, Supra at 12
Defendant also argues that Mr Collins was responsible for his
hypoglycemia because he was not measuring his blood sugar and was injecting
an overly large dosage of insulin Defs Br at 22 However, Mr
Collins was monitoring his low blood sugar as he typically did, by sensing
symptoms of low blood sugar tingling, hunger, and seeking additional food
when those symptoms occurred19 In addition, self-adjustment of insulin
was not common in 1993 outside of academic medical centers, Mr
Collins
doctor had not recommended self-adjustment for him, and in any event, and a
cadet would have had inadequate information at the Academy on which to do
so See Facts, Supra at 7-8 Hence, Mr Collins only remedy for the
low blood sugar he developed at the Academy was to ingest additional
calories20 In addition, Dr Brooks, whose job was to screen out
individuals who had physical conditions or took medicines that made them
medically unqualified, expressed no concern about Mr Collins diabetes
care, and unconditionally approved him See Facts, Supra at 5
B MDPS Was Not Entitled As A Matter Of Law To Terminate Mr
Collins For Alleged Misconduct Resulting From His Hypoglycemia
The practices at the Academy restricted the cadets access to food
Food was critical to Mr Collins diabetes management When MDPS interfered
with Mr Collins ability to obtain enough food to raise his blood sugar,
he became severely hypoglycemic Ex 4, Vinicor Dep at 108-109 Mr
Collins had never before experienced severe hypoglycemia, because he had
never had his access to food restricted See Facts, Supra at 5 He had
successfully performed as a police officer, a correctional officer,
and a
cadet in the police academy, while having insulin-dependent diabetes
Because of diabetes-related hypoglycemia, Mr Collins became cognitively
impaired in the early morning of August 31st, and was unable to respond to
the officers directions to go to PT See Facts, Supra at 13-14 Mr
Collins hypoglycemia also caused his alleged misconduct, ie grabbing the
shirt of Capt Shelbourn Mr Collins does not recall that incident and
can neither admit nor deny it Assuming, however, that the incident
occurred as the TAC officers reported it, it was not a permissible reason
for terminating Mr Collins
Defendant argues that it may lawfully terminate Mr Collins for
misconduct, and cites to cases where an employer terminated an employee
for misconduct that may have been related to a disability Defs Br at
16-20 Defendant misses the point, however, by neglecting to factor in
its own culpability In this case, not only was Mr Collins alleged
misconduct a result of his disability, it was caused by Defendants
failure to accommodate Mr Collins Mr Collins situation is easily
distinguishable from those in the misconduct cases cited by Defendant
because, in all of those cases, the plaintiff
alone was responsible for his
misconduct and it was not caused by the employers failure to
accommodate21 For example, in Siefken v Village of Arlington Heights, 65
F3d 664, 667 7th Cir 1995, the plaintiff, who had insulin-dependent
diabetes, and became hypoglycemic on the job, did not need nor ask for an
accommodation and was properly terminated for fail[ing] to meet the
employers legitimate job expectations, when he failed to control his
diabetes By contrast, Mr Collins needed, and requested, reasonable
accommodations, and it was MDPS denial of his simple requests that caused
Mr Collins hypoglycemia None of the cases cited by Defendant involves
the unusual scenario Mr Collins faced where the employer interfered with
the measures by which he mitigates his disability22 Mr Collins case, by
contrast, is more analogous to an employer forcing an employee to turn down
the volume on his hearing aid and then terminating him because he failed to
understand the employers instructions See also EEOC Landers v Wal-
Mart, 99-CV-453, 2001 WL 1725300, supra at 20
There is a question of material fact as to whether, if MDPS had
granted Mr Collins requests for additional food, he would
have become
hypoglycemic, failed to get off his bunk, and responsively grabbed Capt
Shelbourns collar in the midst of his cognitive dissonance Defendant
cannot permissibly terminate Mr Collins because of conduct that it caused
by denying him a reasonable accommodation and interfering with the measures
he uses to control his disability
C A Reasonable Jury Could Conclude that MDPS Knew Or Should Have
Known That Mr Collins Was Experiencing Hypoglycemia When It
Terminated Him
The United States maintains that the TAC officers knew or should have
known that Mr Collins disorientation and strange conduct was the result
of his diabetes See Facts, Supra at 13-14 Each of the officers who
denied Mr Collins food knew that he had diabetes and knew that it could
cause low blood sugar Officers Marlow, McCain, and Shelbourn had each
spoken to him directly about his diabetes and need for additional food
The TAC officers slept in a common barrack, ate together, and routinely
discussed the events of each day Ex 18, Shelbourn Dep at 20-22
Capt Shelbourn also routinely reviewed all of the contact forms each
morning Id at 80-81 While the three officers who
encountered him in
the barracks, on the morning of August 31st, claim that Mr Collins did not
appear ill or exhibit signs of hypoglycemia, it was clear to Trooper
Brown, who had no previous contact with Mr Collins, that he was acting
totally disoriented See Facts, Supra at 15 Hence, as Dr Vinicor
testified, the officers should have known that Mr Collins was hypoglycemic
on the morning of August 31st, and should have gotten him medical
attention23 Also, if MDPS own rules were followed, and he were given a
hearing before he was summarily terminated, MDPS would have certainly
discovered that Mr Collins was ill and perhaps, Mr Collins could have
successfully completed the Academy See Facts,
Supra at 16
Additionally, if the TAC officers did not know how to properly
respond to Mr Collins situation, it was not because he failed to make his
diabetes known, request accommodations or try to engage in the interactive
process Instead, it is because MDPS failed to train its TAC officers
about the ADA, reasonable accommodations and how to serve as supervisors
See Facts, Supra at 8-9 Compounding this lack of education was the fact
that the four TAC officers who encountered Mr Collins
on the morning that
MDPS terminated him were serving in their capacities for their first time
Contrary to the conjecture of an inexperienced officer, Mr Collins gave no
indication that he wanted to quit the Academy Defs Br at 10; See
Facts, Supra at 13
D A Reasonable Jury Could Conclude That Ronnie Collins Was
Qualified to Perform the Job of a Highway Patrol Cadet
Evidence in the record supports that Mr Collins is a qualified
individual with a disability - that is, an individual with a disability
who satisfies the requisite skill, experience, education and other job-
related requirements of the employment position such individual holds or
desires, and who, with or without reasonable accommodations, can perform
the essential functions of such position24 A reasonable jury could find
that with reasonable accommodations related to his food intake, Mr Collins
could have successfully completed the Academy He passed all of the pre-
employment requirements and tests to be a cadet, including MDPS pre-
employment medical examination See Facts, Supra at 6-7 Unlike many
other cadets who voluntarily quit the MDPS Academy because they lacked the
requisite physical
fitness, Mr Collins was in top physical shape when he
entered the Academy and his doctor had no reservations about his ability to
succeed at the Academy Ex 2, Collins Dep at 22-23; Ex 6, Walt Dep at
35-36 Prior to going to the MDPS Academy, Mr Collins had also
successfully completed three other academies, one after he was diagnosed
with insulin-dependant diabetes See Facts, Supra at 5-6
In 1993, Mr Collins also had five years of experience as a police
officer which required many of the same job tasks as a highway Trooper25
See Facts, Supra at 5-6 In all his years as a police officer and a
correctional officer, Mr Collins diabetes never interfered with his
ability to perform his job Id Former superiors have only praise for
Mr Collins and claim that he was one of the best employees they ever had
Id
E A Reasonable Jury Could Find That Ronnie Collins Is an
Individual with a Disability
Defendant acknowledges that there is evidence in the record that
raises a legitimate question as to whether Mr Collins was disabled under
the ADA Defs Br at 16, thereby conceding that Summary Judgment is
not proper on this issue Notwithstanding Defendants
concession, the
United States will set forth the legal and evidentiary basis for Mr
Collins coverage as a individual with a disability The United States
alleges that Mr Collins has a disability for purposes of the ADA because,
at the time he was terminated, Mr Collins diabetes substantially limited
him in the major life activities of eating, thinking, and caring for
himself26 Contrary to Defendants assertion, the United States does not
contend - and has never contended - that Mr Collins is substantially
limited in working or exercising
The determination of whether an individual has a disability - a
physical or mental impairment that substantially limits one or more of the
major life activities - involves a three step process:
First, we consider whether [the individuals claimed disability] was a
physical impairment Second, we identify the life activity upon which
the [individual] relies and determine whether it constitutes a
major life activity under the ADA Third, tying the two statutory
phrases together, we ask whether the impairment substantially limited
the major life activity27
Major life activities are those basic
activities that the average
person in the general population can perform with little or no difficulty,
such as caring for oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working28 A substantial
limitation of a major life activity is present when an individual [has] an
impairment that prevents or severely restricts the individual from doing
activities that are of central importance to most peoples daily lives29
Whether an impairment is substantially limiting includes consideration of
the nature and severity of the impairment; the duration or expected
duration of the impairment; and the permanent or long term impact of, or
resulting from, the impairment30
1 Diabetes is a Physical Impairment
Diabetes is a physical impairment,31 and Defendant concedes that Mr
Collins had insulin-dependent diabetes in 1993 Defs Br at 2
Diabetes is a serious, lifelong condition that has adversely affected and
limited Mr Collins in several ways Mr Collins must constantly balance
his food, exercise, and insulin so as to avoid the serious complications of
high blood sugar and low blood sugar Mr Collins is always at risk of
developing
hypoglycemia, even to the point of losing consciousness or
death Despite his efforts, Mr Collins has experienced serious,
irreversible, long-term complications of diabetes, including kidney damage,
heart disease, vision loss, and high blood pressure Ex 6, Walt Dep at
39 His diabetes has also caused him to suffer from sexual dysfunction
Id at 41-42 Diabetes is a permanent condition and while its symptoms
and complications may vary in their intensity from day to day, the risks
always remain
2 Ronnie Collins Was Substantially Limited In The Major Life
Activity of Eating At The Time Of His Termination
Mr Collins is substantially limited in eating because he must
exercise constant vigilance with regard to his diet to manage his diabetes
or he will suffer serious health consequences, such as heart disease,
kidney failure, blindness, neuropathy and foot amputation Ex 7, Vinicor
Expert Rep at US00332; See Facts, Supra at 4-5 Like many diabetics who
use insulin, Mr Collins must take extreme care with what, when, and how
much he eats Food, for him, is like medicine, and if taken in the wrong
types or quantities, or not taken at all, can make him
very ill See
Facts, Supra at 4-5 Mr Collins must be very careful to always have some
kind of calories on him to alleviate the first symptoms of hypoglycemia
Id When he feels those symptoms, he typically eats a peppermint candy
immediately, and then gets additional food Id To Mr Collins, it
feels like he has to eat constantly to control his diabetes Id
Equally burdensome, Mr Collins is limited in the quantity and choice
of what he eats, and he cannot eat many of the kinds of foods he ate before
he was diagnosed with diabetes Id; Ex 3, Linda Collins Aff He must
stay away from cakes, other sweets, and starches generally because they
cause his blood sugar to go too high - which causes frequent urination,
irritability, dry mouth, and leads to serious long term complications
See Facts, Supra at 4-5 He also cannot eat large quantities of food, no
matter how tasty, because that will cause his blood sugar to go too high,
and he must have regular and frequent meals Id These restrictions are
constant, daily, and carry severe consequences if ignored - possibly loss
of consciousness or even death Mr Collins must also time his meals
carefully around his insulin shot In 1993, he
was taking one shot a day
in the morning, and he had to eat breakfast within 30-60 minutes of taking
his shot, or else he would begin to suffer the symptoms of hypoglycemia
from the effect of the insulin Ex 2, Collin Dep at 154-155
Eating is a major life activity32 As the 5th Circuit stated in
Waldrip v General Electric Co, 325 F3d 652, 655 5th Cir 2003, [b]y
any measure, eating is of central importance to daily life and the life
process Several courts have found that individuals who have insulin-
dependent diabetes may be substantially limited in eating33
3 Ronnie Collins Was Substantially Limited In Thinking And Caring
For
Himself - Both Of Which Are Major Life Activities - At The Time
Of
His Termination
As Defendant acknowledges, on the morning of August 31, 1993, Mr
Collins was experiencing severe hypoglycemia Defs Br at 10 As a
result of his severe hypoglycemia, Mr Collins experienced cognitive
dissonance and became substantially limited in thinking and caring for
himself Mr Collins severe hypoglycemia was demonstrated by, among other
things, his symptoms of low blood sugar leading up to that morning,
his
disorientation, his unusual behavior, his lack of memory of many of the
events of that morning, and his blood sugar measurement of 39 later that
day Ex 7, Vinicor Expert Rep US00334-US00335 Dr Vinicor can find
no explanation for these factors other than that Mr Collins was
experiencing severe hypoglycemia34 Id
On the morning that MDPS terminated him, Mr Collins was unable to
comprehend and follow the orders being given him When he was told to go
to PT - many times, and by three officers - he just sat on his bunk
See Facts, Supra at 13-14 Even though he may have verbally responded to
their orders with a passing verbal response, as one with Alzheimers
disease may do, he was unable to understand those orders35 See Facts,
Supra at 16
A number of courts have acknowledged that an individual experiencing
a severe hypoglycemic episode is substantially limited in a major life
activity because they were unable to think, care for themselves, see, hear,
or speak during these episodes36 Mr Collins was substantially limited
when he was terminated because, at that time, he was unable to think and
understand or to respond cognitively Thus, his hypoglycemia
severely
restrict[ed him] from doing activities that are of central importance to
most peoples daily lives37 Because of his diabetes, Mr Collins is
always and permanently at risk of experiencing hypoglycemia that may
substantially limit his ability to think and care for himself While Mr
Collins mitigating measures - food, insulin, and exercise - allow him to
avoid the danger of severe hypoglycemia most of the time, the denial of a
mitigating measure such as necessary food will always cause him to become
substantially limited in thinking and caring for himself
While the Fifth Circuit has not yet reached the question of whether
thinking is a major life activity, the four Courts of Appeals that have
addressed this issue have held or assumed that it is38 Caring for ones
self has also been widely recognized as a major life activity within the
meaning of the ADA39 To determine whether Mr Collins was substantially
limited in thinking and caring for himself in 1993, his condition must be
evaluated at the time of his termination40
In the final analysis, the evidence of Mr Collins food
restrictions, and limitations in thinking and caring for himself when
hypoglycemic, are
sufficient for a jury to find that with respect to the
major life activities of eating, thinking, and self care, Mr Collins is
significantly restrictedas compared tothe average person in the
general population See 29 CFR 16302j1ii At the time MDPS
terminated him from the Academy, Mr Collins had a disability within the
meaning of the ADA, because he was substantially limited in thinking and
caring for himself Were it not for MDPS restrictions on food and denials
of Mr Collins requests for additional food while at the Academy, he would
not have become severely hypoglycemic MDPS may not deny Mr Collins the
reasonable accommodation that he needs to control his diabetes and then
escape liability by claiming that Mr Collins is not entitled to the
protections of the ADA because he is not an individual with a disability41
For all the foregoing reasons, the United States respectfully
requests that Defendants Motion for Summary Judgment be denied
Respectfully submitted,
R Alexander Acosta
Assistant Attorney General
Civil Rights Division
BY:___________________________ Date:_____________________
John L Wodatch, Chief
Philip L Breen, Special Legal Counsel
L
Irene Bowen, Deputy Chief
Alyse S Bass
Amanda Maisels
Attorneys
Disability Rights Section
Civil Rights Division
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
202 616-9511, 202 305-8454 phone
202-307-1197 fax
Cynthia L Eldridge, AUSA
MSB 9634
Office of the US Attorney
188 East Capitol Street, Suite 500
Jackson, Mississippi 39201
142 USC 121022; See also Sutton v United Airlines, 527 US
471 1999 plaintiffs impairment must be evaluated in light of her
mitigating measures
2 Rizzo v Childrens World Learning Centers, 213 F3d 209, 215-216
5th Cir 2000; Frazier v Simmons, 254 F3d 1247, 1256 10th Cir 2001
3Dr Frank Vinicor, is the Director of the Division of Diabetes
Translation, National Center for Chronic Disease Prevention and Health
Promotion, Centers for Disease Control
4 Although Mr Collins, who received his diabetes care from a general
internist in Cleveland, Mississippi, did not have access to all of the
latest research and medical trials that were being conducted at academic
medical centers in larger cities, he received acceptable diabetes care
Diabetes treatment changed quite dramatically after the publication
of
results from the Diabetes Control and Complications Trial DCCT on
September 30, 1993 Diabetes Control and Complications Trial Research
Group, The Effect of Intensive Treatment of Diabetes on the Development and
Progression of Long-term Complications in Insulin-Dependent Diabetes
Mellitus, 329 New Eng J Med 977 1993, attached at Ex 5 This 10-year
study presented the first consistent and convincing evidence that intensive
diabetes therapy could mitigate the long-term serious complications of
diabetes Following the publication of this study, diabetes doctors, for
the first time, had clear evidence of the importance of instructing their
patients to maintain tight control of their blood sugar through daily blood
sugar testing, multiple shots of insulin per day, and regular contact with
their physician and other experts such as nurses, dietitians and diabetes
educators Ex 5, DCCT Study; Ex 4, Vinicor Dep at 19, 62-64
5 As Dr Vinicor testified, brain hypoglycemia, is not an all-or-
none phenomenon It doesnt affect every single function of brain, nor
does it constantly and persistently affect all function in the brain There
is with hypoglycemia, and the studies would support
this, a fluctuation or
waxing and waning of blood sugars all within the low blood sugar range
parts of brain function can be not working and other parts working fine
you may be able to drive a car and still be hypoglycemic in terms of
your ability to think, to react, to understand Ex 4, Vinicor Dep at
88-89
6 There is a factual dispute as to whether MDPS was required to
provide Mr Collins an impartial hearing before dismissing him, and if it
was required, why they did not Ex 27, BLEOST at US00478; Ex13,
30b6 Dep at 46 The Mississippi Board on Law Enforcement Officer
Standards and Training BLEOST sets standards that govern all law
enforcement Academies in the state Ex 27, BLEOST at US00382, US00384,
US00386; Ex 13, 30b6 Dep at 42-43 Those standards state that:
prior to dismissal for disciplinary reasons, a student should be afforded
the opportunity to have a hearing before an impartial review board Ex
27, BLEOST at US00478 2472; Ex 13, 30b6 Dep at 46; See also Ex
16, Cadet Manual at 25-28 Mr Collins was not afforded such a hearing
Ex 13, 30b6 Dep at 47-48 Lacking such a procedure, Mr Collins
appealed his termination to the State of Mississippi Employee Appeals
Board
EAB He ultimately was provided no recourse from that tribunal
Without deciding his case on the merits, the Board ruled that as a Cadet,
Mr Collins was not an employee of the State and that he was not entitled
to the Appeals Board process Ex 28, EAB Ruling
742 USC 12112b5A
8Taylor v Principal Financial Group, Inc, 93 F3d 155, 163-165 5th
Cir 1996; 29 CFR 16302o3 EEOC Title I regulations
9US Airways v Barnett, 535 US 391, 400 2002; Stewart v Happy
Hermans Cheshire Bridge, Inc, 117 F3d 1278, 1285-86 11th Cir 1997;
Hankins v The Gap, Inc, 84 F3d 797, 800-801 6th Cir 1996
10Principal Financial Group, 93 F3d at 165; Loulseged v Akzo Nobel
Inc, 178 F3d 731, 736 5th Cir 1999
11US Airways, 535 US at 401-402
12 See, EEOC Enforcement Guidance on Reasonable Accommodation and
Undue Hardship Under the Americans with Disabilities Act, Requesting
Reasonable Accommodation, Question 1 and 32002;
http://wwweeocgov/docs/accommodationhtml Reasonable accommodation
requests do not need to be in writing, do not need to use the words
reasonable accommodations, and can be made to any supervisor; See also
Taylor v Phoenixville Sch Dist, 184 F3d 296,
313-314 3d Cir 1999;
Smith v Midland Brake, Inc, 180 F3d 1154, 1172 10th Cir 1999 en
banc
13 See EEOC Guidance, Question 4; See also Ralph v Lucent
Technologies, Inc, 135 F3d 166, 172 1st Cir 1998 The obligation to
provide a reasonable accommodation is a continuing one
14See Phoenixville, 184 F3d at 317 the employer should offer and
discuss available alternatives when the request is too burdensome
15Loulseged, 178 F3d at 737 n6
16Defendant has not argued, and cannot argue that it would have been
an undue hardship to permit Mr Collins to get another plate of food in the
cafeteria, use the vending machine, or eat a peppermint without punishment,
because none of these requests would have caused MDPS difficulty or
expense 42 USC 1211110
17 See Loulseged, 178 F3d at 738 A clear declaration by an
employer that no reasonable accommodation will be forthcoming might indeed
be seen as terminating the interactive process and removing any duty the
employee had to speak up
18See Phoenixville, 184 F3d at 312, 317-318 an employer who acts in
bad faith in the interactive process will be liable if the jury can
reasonably conclude that the employee would
have been able to perform the
job with accommodations
19 Even if Mr Collins had measured his glucose with urine strips
while at the Academy, his actions would have been the same - he would have
requested additional food to raise his glucose level In any event, urine
strips are not capable of measuring low glucose levels, they only measure
highs
20 While, unfortunately, like most diabetics, Mr Collins was not
able to perfectly manage his diabetes, any problem with Mr Collins food
regimen, as noted by Dr Walt, was that it caused his blood sugar to run
too high Ex 6, Walt Dep at 36-37
21 See Robertson v Neuromedical Ctr, 161 F3d 292 5th Cir 1998
neurologist with ADHD, who had control over whether or not to take his
medication, admitted he was unable to safely care for patients; Jones v
American Postal Workers Union, 192 F3d 417 4th Cir 1999 employee with
schizophrenia and post traumatic stress syndrome threatened to kill his
supervisor; Hamilton v Southwestern Bell, 136 F3d 1047 5th Cir 1998
employee with post traumatic stress disorder violated employers workplace
violence policy in an unprovoked outburst at work; Palmer v Circuit Court
of Cook Co, 117 F3d 351
7th Cir 1997 employee with depression and
delusional disorder threatened to kill her supervisor
22Although the Supreme Court recently touched on the issue of
workplace conduct rules in Raytheon Co, v Hernandez 2003 WL 22843597
US Dec 2, 2003, that case is not factually or legally analogous In
Raytheon, the employer applied a no re-hire policy to an employee who had
been lawfully forced to resign for violating his employers drug policy
Further, the employee, who use illegal drugs, was not a qualified
individual with a disability under the ADA See 42 USC 12114a
23 Dr Vinicors opinion is that: To my way of thinking, in this
particular case it was known that Mr Collins was a law officer, certainly,
in other capacities; that he certainly made it known that he had diabetes
and took insulin; and certainly they sensed that he was different than when
he came into the academy or else they wouldnt have discharged him And I
think those things together, knowing that he had diabetes, knowing that he
took insulin, knowing that several times he indicated to the officers that
he had diabetes and was taking insulin, et cetera, that that would have
been sufficient to indicate in my
judgment, my personal clinical judgment,
to people to have known that something could be going on and should
have been recognized as the possibility that this was hypoglycemia Ex
4, Vinicor Dep at 39-40
24 29 CFR 16302m
25See, eg Doane v City of Omaha, 115 F3d 624 8th Cir 1997
Court held that plaintiff was qualified for and could perform the
essential functions of the police officer position because he had the
necessary educational background, valid motor vehicle license, physical
fitness, correctable vision, and nine years of successful performance as a
police officer
26 Contrary to Defendants assertion Defs Br in Supp of Summ J
at 16, the United States stated, in answering Defendants
Interrogatories, that when MDPS terminated Mr Collins, he was
substantially limited in several major life activities, including, but not
limited to thinking and eating
27Bragdon v Abbott, 524 US 624, 631 1998 emphasis added
2829 CFR 16302i; Appendix to Part 1630-Interpretive Guidance
on Title I of the ADA, 29 CFR 16302i; See also Bragdon v Abbott,
524 US at 638 major denotes comparative importance and suggests
that the touchstone for determining an activitys
inclusion under the
statutory rubric is its significance, and further explained that the
phrase major life activities includes those that are central to the life
process itself
29Toyota v Williams, 534 US 184, 198, 196-197 2002
Substantially in the phrase substantially limits suggests
considerable or to a large degree and precludes impairments that
interfere only in a minor way See also 29 CFR 16302j1
30See 29 CFR 16302j2
31 See 29 CFR 16302h1 a physical impairment is any
physiological disorder or condition affecting one or more of the
following body systems: neurological, musculoskeletal, special sense
organs, respiratory cardiovascular, digestive, genito-urinary,
hemic and lymphatic, skin, and endocrine
32Waldrip v General Electric Co, 325 F3d 652, 655 5th Cir 2003;
Fraser v Goodale, 342 F3d 1032, 1040 9th Cir 2003; Amir v St Louis
Univ, 184 F 3d 1017, 1027 8th Cir 1999
33 See Fraser v Goodale, 342 F3d 1032, 1041 9th Cir 2003
plaintiff with type 1 diabetes may be substantially limited in eating
because her diabetes regimen is perpetual, severely restrictive, and
highly demanding; Lawson v CSX Transportation, Inc, 245 F3d 916,
924-
926 7th Cir 2001 applicant with insulin-dependent diabetes may be
substantially limited in eating because his ability to metabolize food is
difficult and erratic, he must exercise constant vigilance to control his
blood sugar, and he must always concern himself with the availability of
food, the timing of when he eats, and the type and quantity of food he
eats; Erjavac v Holy Family Health Plus, 13 FSupp2d 737, 746-747 ND
Ill 1998 even in its treated form, plaintiffs insulin-dependent
diabetes may substantially limit the major life activities of eating and
elimination of waste because plaintiff must eat constantly to prevent blood
sugar fluctuations; must stop all other activities and pursue food when her
blood sugar drops; must urinate frequently; and self-inject insulin several
times a day
34 The United States does not concede that MDPSs designated expert,
Dr Frederick Carlton, who practices emergency medicine, and has no
specialized training or experience in diabetes, is qualified to testify as
an expert on all of the issues in this case
35See, eg, Nawrot v CPC Intl, 277 F3d 896, 901 7th Cir 2002
when plaintiff was introduced to a new employee, he was
suffering from
hypoglycemia, and his offensive statement, I would shake your hand but I
just went to the bathroom and did not wash my hands, was a product of his
disorientation from the hypoglycemia
36See Nawrot v CPC Intl, 277 F3d at 905 finding plaintiff was
substantially limited in his ability to think and care for himself because
the plaintiff, who had insulin-dependent diabetes, suffered from
hypoglycemic episodes, during which his ability to think coherently is
significantly impaired, as well as his ability to function [and] his
ability to express coherent thoughts is impaired, causing him to make
nonsensical statements; McCusker v Lakeview Rehabilitation Center, No
Civ 03-243-JD, 2003 WL 22143245, at 1,3 D NH Sept 17, 2003
plaintiff may be substantially limited in major life activities during his
occasional hypoglycemic episodes when he is unable to communicate,
concentrate, control his movements, or care for himself; EEOC Landers v
Wal-Mart, 99-CV-453, 2001 WL 1725300, at 5 WDNY Sept 28, 2001
plaintiff may have been substantially limited in major life activities,
such as seeing, hearing, and working, based on one episode at work when he
passed out due to
hypoglycemia
37 See Toyota v Williams, 534 US 184, 198 2002
38See Nawrot v CPC Intl, 277 F3d at 905 plaintiff, a person with
insulin-treated diabetes, has sufficiently demonstrated that his diabetes
substantially limits his ability to think and to care for himself, which
are both major life activities; EEOC v Sara Lee Corp, 237 F3d 349,
353 4th Cir 2001; Doyal v Okla Heart, Inc, 213 F3d 492, 496 10th
Cir 2000; Taylor v Phoenixville Sch Dist,184 F3d 296, 307 3d
Cir1999; see also Mulholland v Pharmacia Upjohn, Inc, 4:99-CV-98,
2001 WL 311241, at 4 WD Mich, Feb 15, 2001, and EEOC v Voss
Electric Co, 257 F Supp 2d 1354, 1359 WD Okla 2003
39 Nawrot v CPC Intl, 277 F3d at 905; Fenney v Dakota, Minn
E RR Corp, 327 F3d 707, 714 8th Cir 2003; Peters v Baldwin Union
Free Sch Dist, 320 F3d 164, 168 2d Cir 2003 Rehabilitation Act;
McCusker v Lakeview Rehabilitation Center, No Civ 03-243-JD, 2003 WL
22143245, at 3 D NH Sept 17, 2003 See also regulations to ADA and
Rehabilitation Act, each listing caring for ones self as an example of a
major life activity, 29 CFR 16302i; 28 CFR 4131b2; Bragdon v
Abbott, 229 US at 638 the ADA must be construed to be consistent with
the
Rehabilitation Act regulations
40Nowak v St Rita High School, 142 F3d 999, 1003 7th Cir 1998
The determination as to whether an individual is a qualified individual
with a disability must be made as of the time of the employment decision;
Frazier v Simmons, 254 F3d 1247, 1256 10th Cir 2001 same; Voss Elec
Co, 257 F Supp 2d at 1358 The Court must consider the extent of
[plaintiffs] impairment at the time the employment decision was made
41See Denney v Mosey, No IP 98-852-C, 2000 WL 680417, at 10 SD
Ind Mar 20, 2000 an employer cannot interfere with or prohibit the use
on the job of corrective measures essential to the employees health and
life and then escape liability under the ADA on the theory that the
employee does not have a disability
Source:aad.org
