                 UNITED STATES COURT OF APPEALS
                      For the Fifth Circuit



                              No. 92-1849



LYLE S. CHANDLER and ADOLPHUS A.
MADDOX, on behalf of themselves
and others similarly situated,

                                                 Plaintiffs-Appellees,


                                VERSUS


THE CITY OF DALLAS, ET AL.,

                                                Defendants,

THE CITY OF DALLAS,

                                                 Defendant-Appellant.


          Appeal from the United States District Court
               for the Northern District of Texas

                         (September 20, 1993)


Before SMITH, DUHÉ, and WIENER, Circuit Judges.

WIENER, Circuit Judge:

     In 1978, the City of Dallas, Texas (Dallas or the City)

adopted a Driver Safety Program (the Program) to reduce the risk

of vehicular collisions.    The Program established certain

physical standards for city employees who drive on public roads

as an intrinsic part of their job duties.       Employees of this type

are referred to as Primary Drivers.      The physical standards

required by the Program were patterned on safety regulations
promulgated by the United States Department of Transportation.

If an employee did not meet these standards, he could not be

certified as a primary driver and thus was ineligible for Primary

Driver jobs.1

     Two of the medical standards for Primary Drivers are of

particular importance to the instant appeal.    A Primary Driver:

(1) cannot have an established medical history of diabetes

mellitus severe enough to require insulin for control; and (2)

must have 20/40 vision (corrected) and a field of vision of at

least 70 degrees in the horizontal meridian in each eye.

Plaintiff Lyle Chandler has diabetes mellitus that requires

insulin for control.   Plaintiff Adolphus Maddox has impaired

vision in his left eye that cannot be corrected to meet minimum

standards.   Both of these plaintiffs held positions with the City

that were classified as Primary Driver jobs.2   Only 138 of the

City's job classifications were considered Primary Driver jobs.

     Chandler has required insulin for control of his diabetes

since 1977 and has been an employee of Dallas since 1981.    In


     1
       Apparently, no waiver initially was available for failure
to meet a standard. Presently, all conditions are waivable
except substandard vision, alcoholism, and drug abuse.
     2
       The positions held by Chandler and Maddox were
subsequently reclassified as non-primary driver jobs. The
plaintiffs do not allege any impropriety in either the original
classification or in the later reclassification. Neither do they
contest the City's assertion that these positions were
reclassified because the amount of driving associated with both
positions had decreased. Additionally, Chandler has subsequently
applied for and received a waiver allowing him to apply for
primary driver positions.


                                 2
1985, the Chandler failed his initial driver's physical because

of his diabetes.   At that time he was employed as an Electrical

Repairer T-9, a Primary Driver position.   Chandler was allowed to

retain that position on the condition that he be driven by

another co-worker when he had to go to another work site.

     Chandler has had at least two major on-the-job hypoglycemic

episodes that required emergency medical treatment.   He also

admits that he has had numerous other minor hypoglycemic

incidents, during which he was confused.   Chandler has also had a

series of safety and misconduct incidents on the job.   In 1986,

he caused a serious electrical accident that resulted in injuries

to himself and two co-workers.   That same year, after a

subsequent safety violation and violation of personnel rules,

Chandler was demoted to Electrical Repairer T-7.

     Maddox was hired by the City in 1982 and was promoted to

Plant Mechanic T-7 in 1983.   Maddox failed his initial driver's

physical in 1985 because of poor vision in his left eye.    Among

other problems, his vision in his left eye cannot be corrected to

better than 20/60 and his horizontal field of vision in that eye

is less than 70 degrees.   As with Chandler, Maddox was allowed to

retain his then current position (which was also classified as a

Primary Driver position) on the condition that a co-worker drive

him when he needed to work at other facilities.

     In December 1985, Chandler and Maddox filed suit against the

City, alleging that the Program discriminated against them in




                                 3
violation of the Rehabilitation Act3 (the Act), the Fourteenth

Amendment, and 42 U.S.C. § 1983.            They also sought to represent a

class of persons adversely affected by the Program.           The

complaint was subsequently amended to include claims under the

Revenue Sharing Act4 and the Texas Commission on Human Rights

Act.5

        The district court certified two classes of plaintiffs

(those with substandard vision and those with insulin dependent

diabetes) for purposes of injunctive relief.           After a bench

trial, the court rendered judgment for the plaintiffs, but failed

to make findings of fact and conclusions of law.           The City

appealed, and we vacated the judgment and remanded the case "for

detailed findings of fact and concomitant conclusions of law."6

On remand, the district court reinstated its judgment and made

findings of fact and conclusions of law.           The City has again

timely appealed.

                                      II

                                   ANALYSIS

A.      The Rehabilitation Act

        The Act prohibits discrimination against otherwise qualified

individuals with handicaps in programs that receive federal


        3
            29 U.S.C. § 701-796.
        4
            31 U.S.C. § 6701 et seq..
        5
            Tex. Rev. Civ. Stat. Ann. art. 5221k.
        6
            Chandler v. City of Dallas, 958 F.2d 85, 90-91 (5th Cir.
1992).

                                        4
financial assistance.7     The Act is intended to ensure that

handicapped individuals receive the same treatment as those

without handicaps.8     To qualify for relief under this statute, a

plaintiff must prove that (1) he was an "individual with

handicaps"; (2) he was "otherwise qualified"; (3) he worked for a

"program or activity" that received federal financial assistance;

and (4) he was adversely treated solely because of his handicap.9

The burden of proof for each of these elements lies with the

plaintiff.10

     1.      Individual with Handicaps

     The relevant definition of the term "handicap" is critical

to determining when a person can recover under the Act.     For

employment purposes, the Act defines an "individual with

handicaps" as a person "who (i) has a physical or mental

impairment which substantially limits one or more of such

person's major life activities, (ii) has a record of such an

impairment, or (iii) is regarded as having such an impairment."11

The plaintiffs argue both that they are handicapped under

     7
       The Act has been amended since the instant suit was filed.
Among the changes to the Act was the substitution of the term
"individual with a disability" for the original term "individual
with handicaps." As we are required to apply the statute as it
existed when this suit was filed (See Chiari v. City of League
City, 920 F.2d 311, 315 (1991)), we will continue to use this now
superseded terminology.
     8
          Chiari, 920 F.2d at 315.
     9
          Id.; see 29 U.S.C.S. § 794.
     10
          Chiari, 920 F.2d at 315.
     11
          29 U.S.C.S. § 706(8)(B) (1990).

                                     5
subsection (i) and that the City treated them as being

handicapped under subsection (iii).       Predictably, the City takes

the opposite position on both of these claims.

     Although the Act contains a definition of "handicap," it

does not define the terms used in that definition.       We are not

without guidance, however, for the Supreme Court directs us to

the Department of Health and Human Services (DHHS) regulations

intended to implement the Act.12       Those regulations define a

physical impairment as

     any physiological disorder or condition, cosmetic
     disfiguration, or anatomical loss affecting one or more
     of the following body systems: neurological;
     musculoskeletal, special sense organs; respiratory,
     including speech organs, cardiovascular; reproductive,
     digestive, genito-urinary; hemic and lymphatic; skin;
     and endocrine.13

"Major life activities" are defined as "functions such as caring

for one's self, performing manual tasks, walking, seeing,

hearing, speaking, breathing, learning, and working."14

     According to these same regulations, a person is regarded as

having an impairment that would constitute a handicap if he

     (A) has a physical or mental impairment that does not
     substantially limit major life activities but that is
     treated by [an employer] as constituting such a
     limitation;
     (B) has a physical or mental impairment that
     substantially limits major life activities only as a
     result of the attitudes of others toward such
     impairment; or

     12
          School Board of Nassau Co. v. Arline, 480 U.S. 273, 280
(1987).
     13
          45 C.F.R. § 84.3(j)(2)(i) (1992).
     14
          45 C.F.R. § 84.3(j)(2)(ii) (1992).

                                   6
     (C) has none of the [above described impairments] but
     is treated by [an employer] as having such an
     impairment.15

     a.     Impaired Vision as a Handicap

     This court has previously held that a person is not

handicapped if his vision can be corrected to 20/200.16    Clearly,

if vision that can be corrected only to 20/200 does not

constitute a handicap, neither does vision that can be corrected

to 20/60.    Further, Maddox himself testified at length that his

impaired vision did not substantially limit any of his major life

activities.    As Maddox failed to establish that his impaired

vision substantially limits one or more of his major life

activities, he is not handicapped under the first prong of the

statutory definition of an individual with handicaps.17

     b.     Insulin Dependent Diabetes as a Handicap

     The City contends that Chandler is not handicapped because

he failed to establish that his insulin dependent diabetes

substantially limits any of his major life activities.    Indeed

Chandler himself testified that he did not consider his diabetes

to be a substantial limitation on his major life activities.

Given this testimony and the absence of any evidence to the

contrary, we hold that Chandler failed to establish that he was

handicapped by his insulin dependent diabetes.


     15
          45 C.F.R. § 84.3(j)(2)(iv) (1992).
     16
       Collier v. City of Dallas, No. 86-1010 (5th Cir. August
19, 1986) (unpublished).
     17
          See 29 U.S.C.S. § 706(8)(B)(i) (1990).

                                  7
     Chandler advances an alternative argument that insulin

dependent diabetes should be considered a handicap per se.

Neither this nor any other circuit court has addressed whether

insulin dependent diabetes constitutes a handicap per se.       No

explicit guidance is available from the Act itself or the DHHS

regulations as neither expressly discusses diabetes.       Chandler

therefore bases his argument on language contained in the

commentary to the Equal Employment Opportunity Commission (EEOC)

regulations promulgated to implement the Americans with

Disabilities Act (the ADA).

     The ADA defines a disability in substantially the same terms

as the Act defines an individual with handicaps (now an

individual with a disability).18       Stressing the similarities

between the Act and the ADA, Chandler urges us to look to the ADA

and the regulations promulgated under that act for additional

guidance as to what constitutes a handicap under the Act.

     The EEOC's implementing regulations for the ADA became

effective on July 26, 1992.19    In them, the EEOC uses the same


     18
       Compare Rehabilitation Act, 29 U.S.C. § 706(8)(B)
(defining an "individual with handicaps" (now an "individual with
a disability") as a person "who (i) has a physical or mental
impairment which substantially limits one or more of such
person's major life activities, (ii) has a record of such an
impairment, or (iii) is regarded as having such an impairment")
with Americans with Disabilities Act, 42 U.S.C. § 12102 (defining
the term disability, with respect to an individual, as "(A) a
physical or mental impairment that substantially limits one or
more of the major life activities of such individual; (B) a
record of such an impairment; or (C) being regarded as having
such an impairment").
     19
          See 29 C.F.R. part 1630, § 1630.1 (1992).

                                   8
definitions for key terms as does the DHHS in its regulations

implementing the Act.20

     The EEOC also included an appendix to 29 C.F.R. part 1630

entitled "Interpretive Guidance on Title I of the Americans with

Disabilities Act."    In the Interpretive Guidance, the EEOC notes

that the ADA term "disabilities" is substantively equivalent to

the term "handicaps" in the Act.21       Of particular significance to

the instant case is another statement in this appendix.       In its

discussion of the term "substantially limits," the EEOC states

that "a diabetic who without insulin would lapse into a coma

would be substantially limited because the individual cannot

perform major life activities without the aid of medication."22

     Thus, the EEOC apparently considers that any insulin

dependent diabetic has a disability per se under the ADA.       The

issue remains whether this statement mandates that such a person

also has a handicap per se under the Act.       Nonetheless, we need

not decide that issue today because even if we assume arguendo

that Chandler is "handicapped" for purposes of the Act, he has

failed to establish that he was "otherwise qualified" for Primary

Driver jobs.23

     c.     Regarded as Handicapped

     20
          See 29 C.F.R. § 1630.2 (1992).
     21
       29 C.F.R. Part 1630, Appendix to Part 1630))Interpretive
Guidance on Title I of the Americans with Disabilities Act, §
1630.1(a).
     22
          Id. at § 1630.2(j).
     23
          See infra Part II(A)(2).

                                     9
     Maddox and Chandler alternatively argue that they are

handicapped under the third prong of the statutory definition

because the City regards them as having such impairments.24      They

insist that the City regarded them as handicapped because it

excluded them from Primary Driver jobs based on their

impairments.    According to the plaintiffs, this exclusion, by

itself, constitutes a substantial limitation on one of their

major life activities, i.e., working.

     The issue of how limiting an employer must consider an

employee's impairment to be before the employer is held to regard

the employee as handicapped has been addressed by several courts.

In Forrisi v. Bowen,25 the Fourth Circuit considered the case of

an employee with acrophobia (a fear of heights) who was

discharged from his job because he could not climb ladders or

stairs to certain heights, an integral part of his job.    The

employee subsequently sued under the Act, claiming that he was

handicapped solely because the employer perceived him as being

handicapped.    The Fourth Circuit held that the employer did not

regard the employee as handicapped simply because it found that

he could not meet the demands of this particular job.    "The

statutory reference to a substantial limitation indicates instead

that an employer regards an employee as handicapped in his or her

ability to work by finding the employee's impairment to foreclose



     24
          See 29 U.S.C.S. § 706(8)(B)(iii) (1990).
     25
          794 F.2d 931 (4th Cir. 1986).

                                  10
generally the type of employment involved."26

     The Sixth Circuit held in Jasany v. United States Postal

Service that, as a matter of law, an employee with strabismus

(commonly knowns as "crossed eyes") was not regarded an

handicapped when he was fired from a position which his

strabismus prevented him from properly performing.27    The court

suggested that a number of factors should be considered in

determining whether a given impairment substantially limits an

individual's employment potential.     These factors included the

number and type of jobs from which the individual was

disqualified, the geographic area to which he has reasonable

access, and the individual's employment qualifications.28    The

court concluded, "An impairment that affects only a narrow range

of jobs can be regarded either as not reaching a major life

activity or as not substantially limiting one."29

     This court also has previously addressed this subject,


     26
          Id. at 935.
     27
          755 F.2d 1244, 1249-50 (6th Cir. 1985).
     28
       Id. at 1249; see also Welsh v. City of Tulsa, 977 F.2d
1415, 1419 (10th Cir. 1992) (applying these factors in affirming
summary judgment against plaintiff on grounds that he failed to
establish that he was regarded as handicapped).
     29
       755 F.2d at 1249 n.3. Such a "narrow range of jobs" need
not be numerically insignificant. See, Daley v. Koch, 892 F.2d
212, 215 (2d Cir. 1989) (holding that a perceived impairment that
prevented the plaintiff from successfully applying for a position
as a police officer for the City of New York did not constitute a
substantial limitation of a major life activity). This court
takes judicial notice that New York City employs over 27,000
police officers, considerably more positions than are at issue in
the instant suit.

                                  11
albeit in abbreviated form.       In an unpublished opinion, we

affirmed the district court's determination in Elstner v.

Southwestern Bell Telephone Co.30 that Southwestern Bell did not

regard Elstner as handicapped.       Elstner was employed by

Southwestern Bell as a service technician, a job in which he was

required to climb telephone poles as an integral part of his job.

After Elstner injured his knee, he could no longer climb poles.

As a result, he was demoted to a lower paying job that did not

require him to climb poles.       Elstner filed suit against

Southwestern Bell alleging, inter alia, violation of the Act.

The district court found that Elstner failed to establish that he

was handicapped; that his impairment did not substantially limit

a major life activity, and he was not regarded as handicapped by

Southwestern Bell on account of his impairment.31      The district

court found that even though Elstner had an impairment, it did

not substantially limit his ability to work or Southwestern

Bell's perception of his ability to work.       Instead, Elstner's

injured knee disqualified him only from those positions that

required climbing.32    Southwestern Bell's perception that he was

able to work in other positions was evidenced by its retention of

Elstner in a position that did not require climbing.33         We


     30
       863 F.2d 881 (5th Cir. 1988) (unpublished opinion), aff'g
659 F. Supp. 1328 (S.D. Tex. 1987).
     31
          659 F. Supp. at 1343.
     32
          Id.
     33
          Id.

                                    12
subsequently affirmed the district court's conclusion that

Elstner was not handicapped: "Because the plaintiff presented no

evidence that he was substantially limited in [a] major life

activity or in performing work-related functions in general, he

was not a handicapped person under either federal or state

law."34

     In the instant case, both Chandler and Maddox appear to have

been capable of safely performing all duties of their respective

positions except driving.   Significantly, the City recognized

their abilities to perform the balance of the duties associated

with the respective positions of Electrical Repairer and Plant

Mechanic.   The City was aware of both subjects' impairments when

it hired them, but it hired them nonetheless.    When their jobs

were classified as Primary Driver jobs, the City did not fire or

demote them to non-Primary Driver positions.35   Instead, it

retained them in those positions and ensured that another

employee would be available to drive for them.    Neither did the

City bar them from promotional opportunities; they were only

disqualified from applying for Primary Driver positions.    And,

promotional pathways that did not involve such positions remained


     34
       863 F.2d 881, slip op. at 2; see also de la Torres v.
Bolger, 610 F. Supp. 593, 596-97 (N.D. Tex. 1985), aff'd, 781
F.2d 1134 (5th Cir. 1986) ("An impairment that interferes with an
individual's ability to do a particular job, but does not
significantly decrease that individual's ability to obtain
satisfactory employment otherwise is not `substantially limiting'
for purposes of the Rehabilitation Act.")
     35
       Cf. Forrisi v. Bowen, 794 F.2d 931 (employee terminated);
Jasany, 755 F.2d 1244 (employee demoted).

                                13
available to both Chandler and Maddox.

     An employer's belief that an employee is unable to perform

one task with an adequate safety margin does not establish per se

that the employer regards the employee as having a substantial

limitation on his ability to work in general.       The only relevant

limitation perceived by the City regarding the plaintiffs'

ability to work concerned their abilities to drive City vehicles

on the job without risk to themselves or others.       Chandler and

Maddox failed to adduce sufficient evidence to support a finding

that the City regarded them as handicapped.

     2.     "Otherwise Qualified"

     Taken literally, "otherwise qualified" could be defined to

include those persons who would be able to meet the particular

requirements of a particular program "but for" the limitations

imposed by their handicaps.    The Supreme Court, however,

expressly disapproved of such an interpretation because of the

absurd results that would be produced.36      "Under such a literal

reading, a blind person possessing all the qualifications for

driving a bus except sight could be said to be `otherwise

qualified' for the job of driving.       Clearly, such a result was

not intended by Congress."37   The Supreme Court instead defined

an otherwise qualified person as "one who is able to meet all of




     36
       Southeastern Community College v. Davis, 442 U.S. 397,
406 (1979).
     37
          Id. at 407 n.7.

                                    14
a program's requirements in spite of his handicap."38

     The definition of a qualified handicapped individual also

includes a personal safety requirement))an otherwise qualified

handicapped individual is defined as one who "can perform the

essential functions of the position in question without

endangering the health and safety of the individual or others."39

"[U]nder section 504, an individual is not qualified for a job if

there is a genuine substantial risk that he or she could be

injured or could injure others, and the employer cannot modify

the job to eliminate that risk."40

     Therefore, to determine whether an individual is otherwise

qualified for a given job, we must conduct a two part inquiry.

First, we must determine whether the individual could perform the

essential functions of the job, i.e., functions that bear more

than a marginal relationship to the job at issue.41      Second, if

(but only if) we conclude that the individual is not able to

perform the essential functions of the job, we must determine

whether any reasonable accommodation by the employer would enable

him to perform those functions.42      As with establishing the

existence of a handicap, the burden lies with the plaintiff to


     38
          Id. at 406 (emphasis added).
     39
       Chiari, 920 F.2d at 317 (internal quotation, emphasis,
and footnote omitted).
     40
          Id.
     41
          Id. at 315.
     42
          Id.

                                  15
show that he is otherwise qualified.43

     Under the Program, the City established three distinct

categories of drivers.     Primary Drivers are those City employees

who are certified to operate a motor vehicle on public

thoroughfares for the City as an intrinsic part of their job

duties.    Secondary Drivers are those City employees who are

certified to operate a motor vehicle on public thoroughfares for

the City as an adjunct duty to their job.      Tertiary Drivers are

those City drivers who operate motor vehicles and automotive

equipment on City property where public access is limited.      Only

Primary Drivers are subject to the strict physical standards of

the Program.

     The plaintiffs do not seriously contest the City's assertion

that driving is an essential function of every Primary Driver

positions.      Instead, they argue that they can safely perform all

of the functions of their respective jobs, including driving,

without accommodation.     In taking that approach, the plaintiffs

failed to adduce sufficient evidence that would support a finding

that they were otherwise qualified for Primary Driver positions.

     The Program is based on regulations promulgated by the

Federal Highway Administration, Department of Transportation, to

promote, inter alia, safe operation of motor vehicles.44     These

regulations provide in pertinent part that:


     43
          Id.
     44
       See 53 Fed. Reg. 18042 (1988); 35 Fed. Reg. 6458 (1970);
34 Fed. Reg. 9080, 9081 (1969).

                                   16
     A person is physically qualified to drive a motor
     vehicle if that person))
          . . . .
     (3) Has no established medical history or clinical
     diagnosis of diabetes mellitus currently requiring
     insulin for control; [and]
          . . . .
     (10) Has distant visual acuity of at least 20/40
     (Snellen) in each eye without corrective lenses or
     visual acuity separately corrected to 20/40 (Snellen)
     or better with corrective lenses, distant binocular
     acuity of at least 20/40 (Snellen) in both eyes with or
     without corrective lenses, field of vision of at least
     70° in the horizontal meridian in each eye, and the
     ability to recognize the colors of traffic signals and
     devices showing standard red, green and amber;
          . . . .45

These regulations, including the provisions relating to insulin

dependent diabetes and impaired vision, have been in effect since

1970.46   Since that time, the Federal Highway Administration has

had numerous opportunities to revisit these regulations, and to

update and amend them if need be.47       Yet, the physical

requirements regarding insulin dependent diabetes and impaired

vision have remained unchanged.    The statement of the

Administrator of the Federal Highway Administration in the

preamble to the proposed regulations remains valid to this day:

"Accident experience in recent years has demonstrated that

reduction of the effects of organic and physical disorders,

emotional impairments, and other limitations of the good health

     45
          49 C.F.R. § 391.41(b) (1992).
     46
       See 34 Fed. Reg. 9080 (1969) (notice of proposed rule
making); 35 Fed. Reg. 6458 (1970) (notice of final rule).
     47
       See 55 Fed. Reg. 3546 (1990); 53 Fed. Reg. 47134 (1988);
53 Fed. Reg. 18042 (1988); 51 Fed. Reg. 17568 (1986); 43 Fed.
Reg. 56900 (1978); 36 Fed. Reg. 12857 (1971); 36 Fed. Reg. 222
(1971); 35 Fed. Reg. 17419 (1970).

                                  17
of drivers are increasingly important factors in accident

prevention."48

     After implementing these regulations, the Federal Highway

Administration received several petitions for reconsideration.

The Director of the Bureau of Motor Carrier Safety (acting under

authority delegated to him by the Administrator) responded to

objections that the medical qualifications of § 391.41 were

unduly stringent by stating: "In this area, however, the Director

believes that the risks are so well known and so serious as to

dictate the utmost caution.       Hence, except as noted below, the

physical qualifications are unchanged."49      The standards for

diabetes and vision are not among those that were altered in

response to these petitions for reconsideration.

     The issue whether an insulin dependent diabetic is otherwise

qualified for positions involving driving or other high risk

activities has been addressed by several federal courts.       Those

courts have uniformly held that insulin dependent diabetics

present an unacceptable risk, and are thus not otherwise

qualified, to be employed as, inter alia, sanitation truck

drivers50 or special agents with the Federal Bureau of




     48
       34 Fed. Reg. at 9081; see also 35 Fed. Reg. at 6458
(stating that the Administrator remains convinced that this
statement "still holds true.").
     49
          35 Fed. Reg. at 1749.
     50
       Serrapica v. City of New York, 708 F. Supp. 64, 73
(S.D.N.Y. 1989).

                                    18
Investigation.51   We are aware of no cases holding that insulin

dependent diabetes does not present an significant risk in

connection with the operation of motor vehicles on public

highways.

     We hold that, as a matter of law, a driver with insulin

dependent diabetes or with vision that is impaired to the extent

discussed in 49 C.F.R. § 391.41 presents a genuine substantial

risk that he or she could be injured or could injure others.52

We echo the sentiment expressed by another panel of this court in

Collier: "Woe unto the employer who put such an employee behind

the wheel of a vehicle owned by the employer which was involved

in a vehicular accident."53

     As neither Chandler nor Maddox was otherwise qualified for

Primary Driver positions in the absence of any employer

accommodation, we must answer the second question of the

analysis))whether any reasonable accommodation by the City would

have enabled them to perform the essential functions of those




     51
       Davis v. Meese, 692 F. Supp. 505, 521 (E.D. Pa. 1988),
aff'd, 865 F.2d 592 (3d Cir. 1989).
     52
       We nonetheless share the hope of the court in Davis that
medical science will soon progress to the point that "exclusions
on a case by case basis will be the only permissible procedure;
or, hopefully, methods of control may become so exact that
insulin-dependent diabetics will present no risk of ever having a
severe hypoglycemic episode." 692 F. Supp. at 520. But, as
Chandler's two severe hypoglycemic reactions while employed by
the City amply demonstrate, it has not yet reached that point.
     53
       Collier v. City of Dallas, No. 86-1010, slip op. at 3
(5th Cir. August 19, 1986) (unpublished).

                                 19
positions.54    For if reasonable accommodation will not eliminate

a significant safety risk, a handicapped person is not otherwise

qualified.55

     The record is conspicuously devoid of any evidence from

Chandler or Maddox that reasonable accommodation was possible,

much less that it would eliminate any safety risk inherent in

their driving.56    This evidentiary void is fatal to Plaintiffs'

claims, given their burden of establishing that reasonable

accommodation is possible so that they would be otherwise

qualified for their respective positions if they were so

accommodated.57    As we find that neither plaintiff was otherwise

qualified, in the absence of accommodation, because the posed a

substantial risk of injury, the absence of evidence that

reasonable accommodation could be made eschews the possibility

that either plaintiff was "otherwise qualified."    Therefore, the

trial court clearly erred in holding that the plaintiffs were

otherwise qualified for Primary Driving positions.

     It follows that, as neither Chandler nor Maddox adduced


     54
          Chiari, 920 F.2d at 315.
     55
          Arline, 480 U.S. at 287 n.16.
     56
       Cf. Wood v. Omaha School Dist., 985 F.2d 437, 438-39 (8th
Cir. 1993) (holding that Type II (non-insulin dependent) diabetic
plaintiffs raised a genuine issue of material fact by presenting
evidence regarding how they could readily monitor their blood
sugar levels and maintain them at proper levels during work so as
to reduce or eliminate the risk of a hypoglycemic reaction while
driving).
     57
       Chiari, 920 F.2d at 315; Wood v. Omaha School Dist., 985
F.2d 437, 439 (8th Cir. 1993).

                                     20
sufficient evidence to support findings that they were both

handicapped and otherwise qualified, their claims under the Act

necessarily fail.    We therefore need not address the remaining

elements of their claims under the Act, i.e., whether they worked

for a program or activity that received federal financial

assistance and whether they were adversely treated solely because

of any handicap.

C.   Class Certification

     The City argues that the district court improperly certified

the two subclasses of plaintiffs because the determinations of

whether an individual is handicapped or "otherwise qualified" are

necessarily individualized inquiries.    We agree.

     "The question of whether an impairment constitutes a

substantial limitation to a major life activity is best suited to

a case-by-case determination."58

     To answer this question [of whether a person is
     otherwise qualified] in most cases, the District Court
     will need to make an individualized inquiry and made
     appropriate findings of fact. Such an inquiry is
     essential if § 504 is to achieve its goal of protecting
     handicapped individuals from deprivations based on
     prejudices, stereotypes, or unfounded fear, while
     giving appropriate weight to such legitimate concerns
     of grantees as avoiding exposing others to significant
     health and safety risks.59

As the facts of the instant case amply demonstrate, the effect of

     58
       Elstner v. Southwestern Bell Telephone Co., 659 F. Supp.
1328, 1342 (S.D. Tex. 1987), aff'd, 863 F.2d 881 (5th Cir. 1988)
(internal quotation omitted); see also Forrisi v. Bowen, 794 F.2d
931, 933 (4th Cir. 1986) ("The inquiry is, of necessity, an
individualized one))whether the particular impairment constitutes
for the particular person a significant barrier to employment.").
     59
          Arline, 480 U.S. at 287 (emphasis added).

                                   21
a given type of impairment, both on major life activities in

general and on a person's ability to perform specific tasks, can

vary widely from individual to individual.   One person with

impaired vision may simply need to wear glasses, while another

may need a guide dog.   The prospect of continuing medical

advances in the treatment of diabetes (at an inherently

unpredictable rate), further supports the need for individualized

inquiries in this area.   We conclude that class certification and

class relief are inappropriate in the instant case.

D.   Constitutional Rights

     The district court awarded the plaintiffs equitable relief

and compensatory damages under 42 U.S.C. § 1983 for violations of

their Constitutional rights.   The plaintiffs argue that their

First Amendment rights were violated by the City's taking

retaliatory action against them for opposing the application of

the Program.   They also argue that they were denied equal

protection and due process because the City did not have a

rational basis for discriminating against them and because

Chandler was not given adequate opportunity to be heard in

relation to his demotion.

     The City responds by insisting that the plaintiffs' failure

properly to plead a First Amendment cause of action precluded the

district court from rendering judgment for them on such a cause

of action.   Rule 8 of the Federal Rules of Civil Procedure does

require "a short and plain statement of the claim showing that




                                22
the pleader is entitled to relief."60        Although the plaintiffs

failed to comply with this rule, their First Amendment claim was

included in the Joint Pre-Trial Order.         Once entered, the pre-

trial order generally controls the scope and course of the

trial.61   Further, the City has failed to demonstrate any

prejudice resulting from the failure of the plaintiffs properly

to amend their pleadings.    Nonetheless, assuming without so

deciding that the plaintiffs were not precluded from bringing

this claim, they failed to adduce sufficient evidence to support

a judgment in their favor.    Even if we make the additional

assumption that the plaintiffs engaged in protected speech (a

proposition on which we have serious doubts), they failed to

establish any causal nexus between such speech and any injury

they may have incurred.

     The plaintiffs' equal protection and due process claims are

equally meritless.    As discussed at length above, and contrary to

the district court's conclusion, the City did have a rational

basis for adopting and maintaining the Program and its

classification of the plaintiffs.         And, even though the City

apparently did not afford Chandler all the latitude he desired at

the administrative hearing concerning his demotion, the hearing

it did provide was constitutionally adequate.62


     60
          Fed. R. Civ. P. 8(a)(2).
     61
          Flannery v. Carroll, 676 F.2d 126, 129 (5th Cir. 1982).
     62
       See Davis v. Scherer, 468 U.S. 183, 192 & n.10 (1984);
Arnett v. Kennedy, 416 U.S. 134 (1974).

                                     23
     As the plaintiffs have failed to establish any actionable

violation of their constitutional rights, they are not entitle to

relief under 42 U.S.C. § 1983.



E.   Texas Commission on Human Rights

     The Texas Supreme Court has adopted a very restrictive

definition of "handicap" for purposes of the Texas Commission on

Human Rights Act.63     In Chevron Corp. v. Redmon,64 that court

expressly rejected the definition of an "individual with

handicaps" from the federal Rehabilitation Act.65      The court

instead defined handicap as a disability "which is generally

perceived as severely limiting in performing work-related

functions in general."66     Further, "a person may not sue [under

art. 5221k] if his handicap impairs his ability to do that

particular job."67      The court also decided, as a matter of law,

that vision which could not be corrected to 20/60 or better did

not constitute "those severe impairments which article 5221k was

intended to protect."68      The failure of the plaintiffs' claims

under the Rehabilitation Act clearly precludes them from

recovering under the stricter Texas statute.

     63
          Tex. Rev. Civ. Stat. Ann. art 5221k.
     64
          745 S.W.2d 314 (Tex. 1987).
     65
          Id. at 318.
     66
          Id.
     67
          Id.
     68
          Id.

                                    24
                                  III

                              CONCLUSION

     The plaintiffs failed to establish that they were both

handicapped and otherwise qualified, either with or without

reasonable accommodation by the City, for Primary Driver

positions.   Consequently, their claims under the Rehabilitation

Act must fail.   Further, class certification and relief are

inappropriate in the instant case, given the strong preference

for individualized determinations under the Act.   As the

plaintiffs' claims fail to meet the standards of the Act, so to

do they fail to meet the more stringent standards of the Texas

Commission on Human Rights Act.    Finally, the plaintiffs failed

to establish any Constitutional violations that would permit

recovery under 42 U.S.C. § 1983.

     For the foregoing reasons, we REVERSE the decision of the

district court and RENDER judgment for the City of Dallas on all

counts and in all respects.




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