Opinion
CAUSE NO. IP 01-0152-C-T/G, CAUSE NO. IP 01-0152-C-T/L
August 28, 2003
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY MOTION AND PLAINTIFF'S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT
Plaintiff Gary Branham applied for the position of Special Agent with the Criminal Investigation Division of the IRS, but was turned down because of questions concerning his Type I insulin-treated diabetes. He brought suit under the Rehabilitation Act of 1973 for disability discrimination. The Government filed a motion for summary judgment and the Plaintiff moved for partial summary judgment on the "direct threat" affirmative defense asserted by the Government. The motions are fully briefed, and after having considered the arguments and factual submissions of the parties, the court now rules as explained below.
The Government also moved, unopposed, for leave to file Dr. Joshua L. Cohen's curriculum vitae, in support of its motion for summary judgment, nunc pro tunc. That motion is GRANTED.
I. The Facts A. Procedural Background
The dispute in this case has less to do with contested versions of the facts than the effect of undisputed facts. The Plaintiff was diagnosed with Type I diabetes in 1991, which requires treatment by insulin injections. (Branham Dep. at 64, 66.) He has worked for the IRS as a revenue agent since 1986 (PL's Opp. to Def.'s Mot. Summ. J. at 1). He describes this job as involving primarily office work (Branham Dep. at 33), performance of which is unaffected by his health condition. ( Id. at 39-40.) He applied and was selected for the position of IRS Special Agent conditional on passing a physical exam and medical review. (Miller Dep. at 84.) After the exam, Dr. Richard J. Miller, the Director of Federal Law Enforcement Programs and Federal Occupational Health (Miller Dep. at 26) and an expert in occupational medicine ( id. at 86) reviewed the Plaintiff's medical history and additional materials relating to his diabetes ( id. at 84). Dr. Miller concluded that the Plaintiff was not medically qualified for the position of Special Agent. On June 15, 1999, the IRS advised the Plaintiff of its decision.The Plaintiff requested a reconsideration and submitted additional materials, including a statement from his treating physician, Dr. Paul A. Skierczynski, an endocrinologist, in support of his request. (Def. Ex 26.) A second physician, Dr. Butler, reviewed both the original application and the supplementary submissions and concurred with Dr. Miller's determination. ( Id.) On the basis of Dr. Butler's opinion, Dr. Miller reaffirmed his original decision. (Miller Dep. at 78.) Members of the IRS' Criminal Investigation Health and Safety Committee met on March 1, 2000, and concluded that, because of evidence indicating the Plaintiffs diabetes was not under good control, he was medically ineligible for the position of Special Agent. (Def. Ex. 36.) The Plaintiff was notified of the Committee's decision on June 6, 2000.
B. The Plaintiff's Condition
As stated above, the Plaintiff suffers from Type I insulin-treated diabetes. The Plaintiff must test his blood glucose levels four times a day. (Branham Dep. at 69.) This requires that he prick his finger and test his blood on a glucometer that he carries on his person. (Branham Dec. ¶ 4.) He also has dietary restrictions having to do with the kinds and amounts of food he can ingest, but otherwise there are no restrictions on his daily activities: he has no difficulty eating, walking, seeing, hearing, speaking, breathing, working, dressing, learning or performing manual tasks. (Branham Dep. at 16, 198.) The Plaintiff further testified that he is able to care for himself, "but the care that is required is much greater than would be a person who is not diabetic." ( Id. at 197.) According to the Plaintiff, he may defer meals by withholding his short-acting insulin injection which he would normally take just before eating: "My current insulin regimen which includes the short-acting Humalog allows me the flexibility to eat whenever my schedule permits." (Branham Dec. ¶ 3 ( see also Skierczynski Dec. ¶ 13 ("if Mr. Branham should delay or miss a meal, he has not taken short acting insulin before that meal and therefore, there would be little insulin circulating in his body to produce hypoglycemia.").) The Plaintiff is able to recognize the warning signs of hypoglycemia early and is equipped with 125 grams of glucose which he can take to remedy the symptoms. (Branham Dec. ¶¶ 3, 6; Skierczynski Dec. ¶ 13.)
At the time the Plaintiff applied for the Special Agent position, he administered four insulin injections per day to regulate his blood sugar. (Branham Dep. at 68-69; Skierczynski Dec. ¶ 6.) It appears that the Plaintiff now utilizes an insulin pump instead of injections to deliver insulin, a change in treatment of which he apprised by letter Ralph L. Gay, Director of the Finance Division of Criminal Investigation, the person in charge of Special Agent hiring. (Branham Dep. at 146.) The record does not reveal at what point in the process that letter was sent, although Dr. Cohen, an endocrinologist testifying on behalf of the Government, refers to an "August 2000 letter to Ralph Gay," which would date it after notification of the Government's final decision, but prior to the filing of the lawsuit.
Dr. Cohen described an insulin pump as follows:
An insulin pump is an alternative to intermittent insulin injection. The insulin pump is an external device, about the size of a cell phone, which is connected by a thin plastic tube to a catheter that is inserted under the skin. The catheter remains in place and must be changed every 2 to 3 days. The microprocessor-controlled pump infuses insulin continuously. . . . The individual wearing an insulin pump must check his or her blood glucose periodically and make appropriate adjustments to the insulin infusion rates. It has been shown in some studies that the appropriate use of an insulin pump can result in more stable blood glucose levels and can lower the risk of hypoglycemia.
(Def. Ex. E at 3-4.) Dr. Cohen also noted, however, that "Mr. Branham did not indicate for how long he had been using the insulin pump and there is no information about his control while using the insulin pump." ( Id. at 4.) Dr. Charles M. Clark, an expert in diabetes testifying for the Plaintiff, opined that the use of the insulin pump in combination with other treatment measures taken by the Plaintiff "virtually eliminates" the risk of hypoglycemia. (Clark Aff. ¶ 12.)
The Plaintiff denies that he has experienced a severe hypoglycemic reaction. (Branham Dec. ¶ 7 ("I have never had a hypoglycemic or hyperglycemic imbalance that required any care or treatment by me or anyone else.").) According to his treating physician, he has had "no neuroglycophenic reactions. If anything, they are extremely mild adrenergic reactions." (Skierczynski Dec. ¶ 9.) Based upon a well-known study, the Diabetes Control and Complications Trial (DCCT) on the incidence of hypoglycemia in conventionally treated Type I diabetic patients, Drs. Skierczynski and Clark both estimated that the chance of the Plaintiff suffering a severe hypoglycemic reaction were not greater than .2% ( i.e., 1 in 500) per year. (Skierczynski Dec. ¶ 4; Clark Aff. ¶ 23.)
Dr. Cohen questioned this conclusion on the basis that the .2% figure applies to "conventionally treated patients" and the Plaintiff is employing an "intensive treatment program." (Def. Ex. E at 3.) Dr. Cohen does not specify the elevated risk to which intensively treated Type I diabetics such as the Plaintiff are subject. ( Id.) On the other hand, Dr. Skierczynski noted that Humalog, the fast-acting insulin, was not available at the time of the DCCT study and would have further reduced the risk of post-meal hypoglycemia. (Skierczynski Dec. ¶ 13.)
C. Dr. Miller's Opinion
Dr. Miller gave four reasons for his opinion, listed on the medical review form. (Def. Ex. 10.) First, the Plaintiffs insulin treatment was four doses per day, although at his deposition Dr. Miller stated that the number of injections was not a problem "in itself." (Miller Dep. at 132.) Second, Dr. Miller remarked that the last adjustment of the Plaintiffs insulin regimen was quite recent, which Dr. Miller believed raised questions as to his stabilization. The Government's retained expert, Dr. Cohen, an endocrinologist with extensive experience treating diabetic patients, however, discounted both these rationales, stating that "with current technology taking 4 insulin injections each day is easily accomplished and should not be a reason for medical disqualification. Changes in insulin dose are common, even in well-controlled diabetics and therefore, a recent change in insulin dosage for the purpose of `fine-tuning' treatment should not be a reason for medical disqualification." (Def. Ex. E at 6.)More seriously, Dr. Miller noted that the Plaintiff's blood glucose logs disclosed erratic levels of blood glucose. The Plaintiff demonstrated high blood glucose over a two week period in 12/98, and his blood glucose dipped below 60 mg/dl several times between 2/20/99 and 3/1/99, including values of 31, 27, and 42 mg/dl-any one of which would be low enough to trigger a severe hypoglycemic reaction. (Def. Ex 10.) The Plaintiff does not contest that his blood glucose log contained those values. Rather, he asserts that his high blood glucose levels in December of 1998 were due to the flu, which normally raises blood glucose. (Clark Aff. ¶ 25.) As for the low values recorded in February of 1999, the Plaintiff claims that he was at that time using a faulty glucometer which did not accurately register his blood glucose levels. According to him, the readings recorded by the old glucometer conflicted with those measured by the new one when he compared the two, and since using the new model he has not recorded similarly low values. (Branham Dec. ¶ 13.) As Dr. Cohen stated, it is not clear from the Plaintiff's representations that he tested the old glucometer during the same period when he recorded the low values in his blood glucose log. (Def. Ex. E at 5.) Dr. Clark, on the other hand, endorsed the Plaintiffs attribution of the low values to a faulty glucometer because the three lowest values (31, 27 and 42) would "almost always be associated with severe symptoms-which Branham did not have[.]" (Clark Aff. ¶ 25.)
Dr. Cohen puts the threshold level for the onset of autonomic hypoglycemic symptoms ("cold sweats, fine tremor, palpitations, anxiety and hunger") at 50 mg/dl, although it varies from person to person. (Def. Ex. E at 4.) As for neuroglycopenic symptoms ("mood disturbance, fatigue, blurred vision, impaired complex motor skills, and confusion or impaired cognitive function"), Dr. Cohen cited one study where over 50% of the subjects exhibited such symptoms when their blood glucose was lowered to 47 mg/dl, although this too varies according to the individual. ( Id.)
Finally, Dr. Miller pointed to the Plaintiffs high hemoglobin A1C readings, specifically noting one result was as high as 9.2, whereas the norm is 6.0. (Def. Ex. 10.) Dr. Skierczynski explained that the high reading "was based upon a laboratory that was using a different methodology where the normal was up to 7.8. Thus, by extrapolation, this level was below 7." (Skierczynski Dec. ¶ 8.) Dr. Clark did not mention the discrepancy in methodologies but opined that the Plaintiff's A1C tests showed "excellent control." (Clark Aff. ¶ 19.) Dr. Cohen, by contrast, stated the records revealed "significant variation" in the Plaintiffs A1C levels, particularly during December 1998 when the 9% value was recorded. (Def. Ex. E at 6.) For the period ending June 1999, the Plaintiff's A1C was back down below 7%. ( Id.)
According to Dr. Cohen, measurement of HBA1C "provides an index of `average' blood glucose levels over the preceding 2 to 3 months." (Def. Ex. E at 6.)
At his deposition, Dr. Miller agreed that the correct figure should be 9.0, not 9.2 as he had written on the medical review form. (Miller Dep. at 136.)
D. The Special Agent Position
Dr. Miller based his opinion as to the essential functions of the position of an IRS Special Agent on a Job Task Analysis that he helped prepare. (Miller Dep. at 167.) The report relied on focus group interviews with Special Agents at different field offices. ( Id. at 170, 183.) In addition, Dr. Miller spent a day in the field with the agents. ( Id. at 183.) The job of Special Agent "requires the ability to work irregular hours, respond to unanticipated requests, and react in a timely or appropriate manner in an emergency or crisis." (Def. Ex. 10.) As Dr. Miller stated, "a federal law enforcement officer who carries a gun and has law enforcement authority, as an IRS special agent does, must be able to respond at all times. The agent must be reliable at all times." (Miller Dep. at 203.) Dr. Miller was concerned that in a critical situation such as one involving surveillance ( id. at 203), third-party interviews ( id. at 205) or clandestine searches ( id. at 207) symptoms of hypoglycemia would impair the Plaintiffs ability to respond rapidly and appropriately. At such a time, a mild hypoglycemic reaction resulting in "subtle incapacitation" could be just as dangerous as a severe episode. (Miller Dep. at 204.) Dr. Miller does believe that people with insulin-treated diabetes can perform in law enforcement positions carrying a firearm if they have relevant experience and their condition were stable. ( Id. at 98.) Dr. Miller also thinks that the Plaintiff might qualify for federal law enforcement positions with less exposure to harm than an IRS Special Agent. ( Id. at 102.) But, in his opinion, the possibility of the Plaintiff becoming incapacitated at a crucial moment would place either himself, other agents, or the public at an unacceptable risk of danger. (Def. Ex. 10.) The physician consulted by the IRS during the administrative review, Dr. Butler, concurred in this view. (Def. Ex. 26.)
II. Summary Judgment Standard
The court must grant summary judgment if there is "no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). The standard for summary judgment is the same as that of a directed verdict, and thus is warranted where no rational jury or other trier of fact could render a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Colosi v. Electri-Flex Co., 965 F.2d 500, 504 (7th Cir. 1992). A "metaphysical doubt" regarding the existence of a material fact will not defeat a motion for summary judgment, Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 474 U.S. 574, 587 (1986). Moreover, the moving party need not positively disprove the nonmovant's case, but may prevail by "pointing out to the district court" a lack of supporting evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The court's review of the record "requires that [it] construe all inferences in favor of the party against whom the motion under consideration is made." Metropolitan Life Ins. Co. v. Johnson, 297 F.3d 558, 561-62 (7th Cir. 2002) (citation omitted); see also Reeves v. Sanderson Plumbing Products, Inc. 530 U.S. 133, 150-151 (2000) ("the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.") In its consideration of the Government's motion, therefore, the court will draw all reasonable inferences in favor of the Plaintiff.
III. Discussion A. Rehabilitation Act
As will become evident in the ensuing discussion, this case places both parties in a double-bind. On the one hand, in order to qualify as disabled under the Rehabilitation Act, the Plaintiff emphasizes those portions of the record, especially Dr. Miller's opinion, which tend to show the gravity of his condition; but to demonstrate that he is nonetheless medically qualified and does not present a threat of harm, he does a 180-degree turn and points to the testimony of his treating physician and Dr. Clark judging his diabetes as being under excellent control. The Government, taking the opposite positions, must execute a similar about-face. Thus the parties often rely on their opponent's experts to support their claims, and conversely find their own experts invoked against them. The following analysis attempts to sort out this confusion.
The court begins with the language of the statute. The Rehabilitation Act provides, in pertinent part: "No otherwise qualified individual with a disability. . . . shall, solely by reason of her or his disability. . . . be subjected to discrimination[.]" 29 U.S.C. § 793(a). The Act defines a person with a disability as someone 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." 29 U.S.C. § 705(20)(B). This definition of a disabled person precisely mirrors that of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101-12213, and the Rehabilitation Act accordingly mandates the application of ADA standards in cases of employment discrimination. 29 U.S.C. § 794(d); see Peters v. City of Mauston, 311 F.3d 835, 842 (7th Cir. 2002) (noting that courts look to the ADA to determine whether there has been a violation of the Rehabilitation Act); Holiday v. City of Chattanooga, 206 F.3d 637, 642 n. 1 (6th Cir. 2000) (same). The ADA defines a "qualified individual with a disability" as "an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8).
Crocker v. Runyon, 207 F.3d 314, 318 (6th Cir. 314), succinctly states the elements of a Rehabilitation Act claim: a plaintiff must establish that he is (1) disabled under the Act; (2) otherwise qualified for the job with or without reasonable accommodation; and (3) being discriminated against solely because of his disability. (citations omitted). The third element is not in dispute here, as the Government expressly denied the Plaintiff the Special Agent position because of his diabetes. Thus, if that impairment qualifies as a disability, and if the Plaintiff is otherwise qualified, the discrimination is manifest. The Government does not deny this. Instead, the parties focus their arguments on the disability and qualification elements of the Plaintiffs claim. The court commences its analysis with the question of disability, because if the Plaintiffs condition is not covered by the statute, he may not benefit from its protections and there is no need to proceed any further.
B. Substantial Limitation
The Plaintiff asserts that, because of his condition, he is substantially limited and was regarded as so limited in the major life activities of caring for himself, eating, and food metabolization. The first question-whether the Plaintiff has a physical impairment, see Bragdon v. Abbott, 524 U.S. 624, 631 (1998)-is easily answered in the affirmative, and the Government appropriately concedes that the Plaintiffs diabetes constitutes an impairment. Likewise, it is well-established that caring for oneself and eating are "major life activities." See 29 C.F.R. § 1630.2(1) (listing major life activities as including, but not limited to "functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working"); Bragdon, 524 U.S. at 638-639 (noting representative character of list of major life activities enumerated in Rehabilitation Act regulations); Lawson v. CSX Transp., 245 F.3d 916, 923 (7th Cir. 2001) (holding that eating is a major life activity because "[c]learly, the ability to eat is integral to one's daily existence, as much or more so than the activities listed in the implementing regulations") (collecting cases). The court is skeptical of "food metabolization" as a major life activity, however. Metabolization is obviously essential to life, but it is better characterized as an internal bodily process — rather like blood circulation or digestion — than an activity. That does not mean that a serious impairment in metabolic processes would fall through the cracks. Instead, such pathologies would manifest themselves in terms of their effects on major life activities (such as eating). In this case, the Plaintiff does not set out arguments as to substantial limitations in metabolization which would not carry over to eating. This conclusion is strengthened by the Seventh Circuit's directive in Lawson, 245 F.3d at 924, to construe the activity of eating broadly, beyond the mechanical ability to ingest food. Thus, as the court understands it, considerations such as dietary restrictions, the consequences of missing or delaying a meal, and difficulties in the conversion of food into energy ( i.e., metabolization) would be relevant in assessing limitations on eating. The question then is whether the Plaintiff's diabetes substantially limits his ability to eat and care for himself. Two principles guide this inquiry. To begin with, the Seventh Circuit has announced that "diabetic status, per se, is not sufficient to qualify as a disability under the ADA." Nawrot, 277 F.3d at 904. As the Court of Appeals has made clear, whether a disorder is disabling depends on its stage, severity, the presence of other impairments, and the individual involved. See Moore v. J.B. Hunt Transport, Inc., 221 F.3d 944, 952 (7th Cir. 2000). An individualized examination into the actual impact of the Plaintiffs diabetes is unavoidable. The second, related precept stems from the Supreme Court case of Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999). There, the Court held that evaluations of whether an impairment constitutes a disability must consider that impairment only as corrected or mitigated by any measures (such as medication) taken by a plaintiff. Thus, solely those limitations which persist in light of corrective or mitigating measures and any side-effects thereby caused may figure in the court's analysis. Id. at 482-83. Sutton itself concerned applicants with impaired eyesight whose myopia was fully remedied by corrective lenses, but in dicta the Court commented on the situation of diabetics:
According to the ADA regulations, an impairment substantially limits a person when it renders that person "[u]nable to perform a major life activity that the average person can perform" or "[s]ignificantly restricted as to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." See Nawrot v. CPC Int'l, 277 F.3d 896, 904 (2002) (quoting 29 C.F.R. § 1630.2 (j)).
For instance, under [the EEOC view where persons are to be judged in their unmitigated state], courts would almost certainly find all diabetics to be disabled, because if they failed to monitor their blood sugar levels and administer insulin, they would almost certainly be substantially limited in one or more major life activities. A diabetic whose illness does not impair his or her daily activities would therefore be considered disabled simply because he or she has diabetes. Thus, the guidelines approach would create a system in which persons often must be treated as members of a group of people with similar impairments, rather than as individuals. This is contrary to both the letter and the spirit of the ADA.527 U.S. at 483. Applying the holding of Sutton to this case, the court must evaluate the Plaintiffs limitations in view of the contributions made by his treatment regimen to his ability to sustain the activities of caring for oneself and eating.
The Plaintiff claims he is substantially restricted because of the burden that his treatment regimen places on him: he must constantly monitor his blood glucose, adjust his dosage of insulin (whether by injection or, currently, through the insulin pump), and pay close attention to his diet and the timing of his meals; and all this must be orchestrated together. Moreover, the consequences of deviating from his treatment could be severe. The Plaintiff finds support for the idea that the "continued vigilance" required by a "perpetual, demanding, and multi-faceted regime" justifies a finding of substantial limitation in Lawson, 245 F.3d at 924. There, the court considered the demanding regime needed to manage Lawson's insulin-treated diabetes and the consequences of non-compliance as factors in its determination that an issue of fact existed as to whether Lawson was substantially limited in the major life activity of eating.
Likewise here, the Plaintiff manages a burdensome treatment regimen. However, the Plaintiff testified that this regime nonetheless allows him considerable freedom in his schedule and activities. He declared that "I can monitor my blood glucose and inject insulin in virtually any location." (Branham Dec. ¶ 3.) Similarly, "[m]onitoring blood glucose levels takes less than 30 seconds and can be accomplished anywhere." ( Id. ¶ 4.) The development of fast-acting insulin allows him "the flexibility to eat whenever my schedule permits." ( Id. ¶ 3.) The Plaintiff can take care of himself, although by dint of greater effort than would be required of a non-diabetic. There is no restraint on his physical activities and he exercises regularly. (Branham Dec. ¶ 15.) The Plaintiff's strong denials that his treatment regimen adversely impacts his schedule or his ability to engage in physical activities belie his plea that it is substantially limiting with respect to eating or caring for himself. See EEOC v. Northwest Airlines, 246 F. Supp.2d 916, 922-23 (W.D. Tenn. 2002) (diabetic who testified that it only takes a minute and a half to test blood sugar, that his only symptoms were weakness and trembling, and that he never had to stop working was not substantially limited). That the burdens of self-care are heavier on an insulin-treated diabetic than a non-diabetic does not mean they are substantially limiting as to the former. "Not every impairment that affects an individual's major life activities is a substantially limiting impairment." Knapp v. Northwestern Univ., 101 F.3d 473, 481 (7th Cir. 1996), cert. denied, 520 U.S. 1274 (1997); see also Sepulveda v. Glickman, 167 F. Supp.2d 186, 191 (D.P.R. 2001) (proof that diabetic requires "medication, a fixed meal schedule, timely snack breaks, and the opportunity to use the bathroom frequently during the work day" not show diabetes substantially limits major life activity); Gray v. Sears, Roebuck Co, Inc., 131 F. Supp.2d 895, 902-03 (S.D. Tex. 2001) (diabetic who had to take additional medicine and avoid strenuous activity not substantially limited in any major life activity). And while it is true that non-compliance could have serious effects, the record shows that the Plaintiff is well-educated in diabetic care and has had no difficulties in adhering to its strictures. Moreover, attaching great weight to the consequences of non-compliance, grave as they may be, would seem to run up against Button's direction to take full account of mitigating measures. Lawson is distinguishable on a number of other grounds as well. First, Lawson's treating physician, Dr. Skierczynksi (presumably the same physician who treats the Plaintiff), opined that even with continuous treatment Lawson "has not been able to properly control his blood sugar for several years . . . and his medical condition will continue to deteriorate over time as a direct consequence of his diabetes." 245 F.3d at 926. According to Dr. Skierczynski, Lawson experienced a severe hypoglycemic reaction once when he briefly lost consciousness. Id. at 927-27. The contrast with the same physician's opinion as to the Plaintiffs condition in this case could not be sharper: "If there are other Type I diabetics that are included for [the position of Special Agent], I think Mr. Branham has probably some of the best control for this entity." (Skierczynski Dec. ¶ 10.) Dr. Skierczynski estimated the risk of the Plaintiff suffering a severe hypoglycemic episode as "remote or minimal." ( Id. ¶ 14.) Dr. Clark seconded this conclusion, believing that the Plaintiff showed "excellent control." (Clark Aff. ¶ 19.) Second, Lawson's insulin injections precipitated hypoglycemic reactions, Lawson, 245 F.3d at 925-26, whereas the Plaintiff denies experiencing similar symptoms, at least to a significant degree. See Thompson v. Eaton Corp., No 02-C-051-C, 2002 WL 31995670, at *10 (W.D. Wis. Dec. 24, 2002) (diabetic plaintiff found not disabled because no evidence that hypoglycemic reactions were severe or long-lasting). Finally, Lawson's illness rendered him unable to maintain significant employment for a number of years, id. at 926, while the Plaintiff has held steady employment as an IRS agent for many years without difficulty. In sum, the overall clinical picture presented by the Plaintiff is appreciably superior to the one presented by Lawson, and does not merit a similar outcome.
The Plaintiff attempts to distinguish Sution by claiming that his treatment regimen does not correct his diabetes in the same way corrective lens restores normal vision. That is true. However, the Court in Sutton used the qualifier "mitigating" in addition to "correcting" measure, 527 U.S. at 483, thus implying that a condition would not have to be entirely relieved for Sutton to apply (even if that case did not present those facts).
The court will discuss Dr. Miller and Dr. Cohen's more equivocal opinions below.
For the same reasons, neither can the second Seventh Circuit case finding a diabetic entitled to ADA protection, Nawrot, 277 F.3d at 896 (major life activity of thinking and caring for oneself), be enlisted in the Plaintiffs cause. As the Plaintiff correctly observes, the court there stated that despite "the most diligent care," Nawrot could not completely control his blood sugar level. Id. at 905. Complete control has similarly eluded the Plaintiff here, as evidenced by the low blood glucose values in February of 1999; and in Dr. Skierczynski's opinion, the same is true of all insulin-treated diabetics. (Skierczynski Dec. ¶ 9) ("This patient, indeed, has rare values below the normal range, but all of my excellent intensively treated Type I diabetics will occasionally have values below the accepted range. . . . There is no Type I diabetic who is appropriately treated on multiple injections who does not have occasional values below the normal.") The Plaintiff is wrong, however, to suggest that incomplete control alone suffices under Nawrot to support a finding of substantial limitation. Nawrot's hypoglycemic reactions had caused him to lose consciousness and fall on several occasions, and impaired his ability to think coherently (explaining the seriousness of his poor control); his diabetes had progressively worsened; he had early stages of kidney and nerve damage secondary to diabetes; and suffered from depression. Id. at 905. Those factors are absent from the record in this case. As with Lawson, the Plaintiff is in considerably better shape than his counterpart in Nawrot. See Thompson, 2002 WL 31995670, at* 10 (distinguishing Nawrot on grounds that plaintiffs hypoglycemic symptoms were less severe). In brief, the evidence submitted by the parties would not license a finding by a reasonable jury that the Plaintiff was substantially limited in the major life activities of eating or caring for himself.
Finally, the Plaintiff latches on to the opinions of Drs. Miller and Cohen to argue that, at a minimum, there is a disputed issue of material fact as to the stability of his diabetes. Certainly, both physicians expressed concern as to the three low blood glucose values recorded in February of 1999. Dr. Cohen opined that the materials he examined demonstrated "significant long-and-short term variations in glycemic control." (Def. Ex. E at 4.) In this regard the court reiterates that incomplete control over blood glucose is not by itself sufficient to warrant a finding of substantial limitation, as indicated in the discussion of Nawrot, for as Dr. Skierczynski stated, all insulin-treated diabetics will exhibit occasional low values. The rule that imperfect blood glucose control does not suffice to render a plaintiff disabled within the meaning of the Rehabilitation Act has special force here, where apparently none of the low blood glucose values registered by the Plaintiff in February of 1999 resulted in a severe hypoglycemic event, or any other debilitating condition related to fluctuations in blood glucose. Although both physicians proffered similar views that the low levels were "associated with a high risk of cognitive impairment" (Def. Ex. E at 5) (Cohen) and the Plaintiff was at the risk of "subtle or sudden incapacitation" (Def. Ex. 10) (Miller), neither consulted personally with the Plaintiff to ascertain if he had indeed experienced the symptoms associated with the low blood glucose values he recorded. Their failure to speak with either the Plaintiff or his treating physician in order follow up on this point inhibits their ability to provide a full clinical picture of the Plaintiff's diabetes.
Drawing all reasonable inferences in favor of the non-movant, the court will assume that the values recorded in February of 1999 genuinely reflect the Plaintiffs blood glucose levels at that time and were not the result of a faulty glucometer.
Second, Dr. Miller's concern was with the Plaintiffs susceptibility to hypoglycemic attacks in the context of performing the essential functions of a high-pressure, federal law enforcement job. He wrote that the environment in which the essential functions of the Special Agent position are carried out could induce or exacerbate pre-existing symptoms of hypoglycemia ( id.); and testified that even a minor hypoglycemic episode, which would not support a finding of substantial limitation, see Thompson, 2002 WL 31995670, at *10, could prove deadly in a critical situation. (Miller Dep. at 204.) Dr. Miller's opinion therefore cannot underwrite the claim that the Plaintiff is substantially limited in the activities of eating or caring for himself, which are evaluated under a more lenient standard than the question of the Plaintiff's medical qualifications for a law enforcement position. See Daley v. Koch, 892 F.2d 212, 215 (2d Cir. 1989) ("[b]eing declared unsuitable for the particular position of police officer is not a substantial limitation of a major life activity."); cf. Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002) (in assessing the major life activity of performing manual tasks, "the central inquiry must be whether the claimant is unable to perform a variety of tasks central to most people's lives[.]") (emphasis added). In short, the court does not think that even those medical opinions most concerned with the Plaintiff's condition as it relates to his ability to perform the Special Agent job can sustain a finding of substantial limitation in the relevant major life activities.
C. Regarded as Disabled
The Plaintiff also contends that even if he was not in fact substantially limited in a major life activity, he was regarded as such by the Government. As mentioned above, the Rehabilitation Act defines as disabled a person who is regarded as having a substantially limiting impairment. 29 U.S.C. § 705(20)(B). To qualify under the statute, the plaintiff must show that:
(1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or
(2) a covered entity mistakenly believes that an actual, non-limiting impairment substantially limits one or more major life activities.Mack v. Great Dane Trailers, 308 F.3d 776, 780 (7th Cir. 2002) (quoting Sutton, 527 U.S. at 489); Peters, 311 F.3d at 843. The Plaintiff's evidence in this respect is culled from Dr. Miller's remarks in written documents and testimony, many of which were referred to above. Thus Dr. Miller wrote that the Plaintiffs "Hemoglobin A1C shows less than adequate control of blood sugar" (Def. Ex. 16); that review of his blood glucose testing logs "reveals erratic blood glucose levels" ( id.); that his "diabetic condition treated with insulin presented an unacceptable risk to the safe job performance of a special agent" (Def. Ex. 41); and that his "insulin dosage continued to be modified and was not stable" (Miller Dep. at 132). In addition, the Plaintiff cites a letter from the Health and Safety Committee that his diabetes "is not under good control." (Def. Ex. 36.) It is appropriate to focus on Dr. Miller's beliefs, for as Director of Federal Law Enforcement Programs and Federal Occupational Health, his views are attributable to the Government on this matter. Thus, if there is an issue of fact as to whether Dr. Miller mistakenly believed that the Plaintiff's actual, non-limiting impairment-his diabetes-substantially limited him in the relevant major life activities, and the Plaintiff is also found to be qualified, summary judgment should be denied.
Nonetheless, the court's response should be clear at this point. Plainly, Dr. Miller believed the Plaintiff had difficulties in maintaining steady blood glucose levels; and was especially concerned about the low blood glucose values he registered in February of 1999 and his high hemoglobin A1C readings. But as already stated, incomplete control over blood glucose is not, by itself, a sufficient basis on which to ground a finding of substantial limitation. More needs to be shown about the plaintiff's actual symptoms (or the employer's beliefs about those symptoms). And, in this case, Dr. Miller admitted that he did not know if the Plaintiff had experienced a significant hypoglycemic reaction as the data suggested might have occurred. (Miller Dep. at 77.) Furthermore, Dr. Miller's opinion pertained wholly to the Plaintiff's ability to perform a federal law enforcement job and the future risk of a hypoglycemic event, even a minor one, occurring at a critical moment. He thus expressed a view as to how the Plaintiff's condition might adversely impact his capacity to conduct a clandestine search, surveillance, third-party interview or otherwise react in a crisis situation, but said or implied nothing about the Plaintiffs ability to engage in such basic tasks as eating and caring for himself. On the contrary, a belief that the Plaintiffs impairment rendered him substantially restricted in these activities would conflict with Dr. Miller's statement that the Plaintiff could, potentially, perform the essential functions of another law enforcement job less exposed to danger than that of IRS Special Agent. ( Id. at 102.) Any attribution to Dr. Miller of such a view is unwarranted. The Plaintiff responds that his claim asserts a substantial limitation in the major life activities of eating and caring for himself, not working. Even so, it is hard to see how Dr. Miller could believe, on the one hand, that the Plaintiff could medically qualify for another law enforcement position, yet at the same time also hold that the Plaintiff is substantially limited in the activities of eating and caring for himself. There is insufficient evidence in the record to draw that conclusion, and thus summary judgment is GRANTED in favor of the Government.
IV. Conclusion
For the foregoing reasons, the court GRANTS summary judgment in favor of the Government and against the Plaintiff. In light of this disposition, the court has no occasion to consider the adequacy of the Government's evaluation of the Plaintiffs medical qualification for the IRS Special Agent position. Therefore, the Plaintiffs motion for partial summary judgment with respect to the Government's proposed "direct threat" affirmative defense is DENIED as moot. Finally, it should be noted that the grant of summary judgment should not be taken as an endorsement of the Government's decision to deny the Plaintiffs application. It is only a determination that the decision, right or wrong, does not violate the Rehabilitation Act.
ALL OF WHICH IS ENTERED.