                       United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 98-1148
                                 ________________

Ray W. Burroughs,                          *
                                           *
      Appellant,                           *
                                           *      Appeal from the United States
      v.                                   *      District Court for the
                                           *      Western District of Missouri.
City of Springfield,                       *
                                           *
      Appellee.                            *

                                 ________________

                                 Submitted: September 21, 1998
                                     Filed: December 28, 1998
                                 ________________

Before LOKEN, LAY, and HANSEN, Circuit Judges.
                         ________________

HANSEN, Circuit Judge.

       Ray Burroughs, a former police recruit, brought this disability discrimination
suit against his former employer, the City of Springfield. He now appeals the district
court's1 grant of summary judgment to the City, arguing that material questions of fact
exist concerning whether the City discriminated against him "because of" his disability




      1
      The Honorable Russell G. Clark, United States District Judge for the
Western District of Missouri.
within the meaning of the Americans with Disabilities Act (ADA). See 42 U.S.C. §
12112(a). We affirm.

                                           I.

       The material facts of this case are uncontested, and the district court stated them
largely as follows. Ray Burroughs was diagnosed with diabetes in 1990. He was hired
as a police recruit for the City of Springfield in 1995, after notifying the City of his
diabetic condition and assuring the City that his condition was under control.
Burroughs underwent a preemployment physical examination, and the doctor reported
that Burroughs was able to work with no limitations. While serving as a police recruit,
Burroughs suffered two diabetic hypoglycemic episodes,2 causing him to become
disoriented and dysfunctional while on duty, and necessitating emergency medical
care. Following these episodes, the City placed Burroughs on internal duty and
required another medical evaluation. On January 11, 1996, the evaluating physician,
Dr. Larry E. Koppers, reviewed Burroughs' condition and the records of his recent
diabetic episodes. Dr. Koppers concluded it was inappropriate for Burroughs to
maintain a position requiring him to carry a gun, because he "could conceivably be
dangerous to the public" during an on-duty diabetic episode. (Appellant's App. at
120.) Noting that it is possible for Burroughs to learn to control the episodes by the
careful timing of meals and activities, Dr. Koppers suggested that the case be reviewed
again after a period of time.




      2
        "Hypoglycemia is an abnormally low concentration of glucose in the blood
which may lead to tremulousness, cold sweat, headache, hypothermia, irritability,
confusion, hallucinations, bizarre behavior, and ultimately convulsions and coma."
Wood v. Omaha Sch. Dist., 25 F.3d 667, 668 n.3 (8th Cir. 1994) (citing Dorland's
Illustrated Medical Dictionary 804 (27th ed. 1988)).
                                            2
      The City then removed Burroughs from active duty and sent him a letter on
February 2, 1996, effectively asking him to take a voluntary demotion or to resign.
The reason for this action was outlined as follows:

      Because of the situations that happened on October 18, 1995, and
      December 4, 1995, the City has a responsibility to assess your physical
      condition for the position of Police Officer. To assist the City in making
      a determination, with your consent, we enlisted the aid of Dr. Larry E.
      Koppers, MD. . . . Dr. Koppers' medical evaluation determined that it
      would be inappropriate to have you maintain a position of carrying a
      weapon and that you could conceivably be dangerous to the Public, until
      such time that you are able to function without significant hypoglycemic
      episodes.

(Id. at 86.) The City proposed a plan for his possible continued employment in a
demoted capacity, but Burroughs chose to resign.

       Burroughs brought this ADA suit, claiming that the City discriminated against
him on the basis of his disability. The district court granted summary judgment in
favor of the City, concluding that Burroughs failed to state a claim of disability
discrimination under the ADA because he was not terminated "because of" his
disability, but rather because he failed to control his controllable disease. Burroughs
appeals.

                                         II.

       We review the district court's grant of summary judgment de novo, using the
same standards as the district court. Young v. Warner-Jenkinson Co., 152 F.3d 1018,
1021 (8th Cir. 1998). "Summary judgment is proper if the evidence, viewed in the
light most favorable to the nonmoving party, demonstrates that no genuine issue of
material fact exists and that the moving party is entitled to judgment as a matter of
law." Id.; Fed. R. Civ. P. 56(c).

                                          3
       The ADA prohibits an employer who is a "covered entity" from discriminating
"against a qualified individual with a disability because of the disability of such an
individual." 42 U.S.C. § 12112(a). In essence, to state a claim under the statute, the
plaintiff must demonstrate that he has a disability as defined in the ADA; that he is
qualified to perform the essential functions of the job at issue, either with or without
reasonable accommodation; and that "because of" his disability, he suffered an adverse
employment action. Gutridge v. Clure, 153 F.3d 898, 900 (8th Cir. 1998); see also
Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir.1995); Wooten v.
Farmland Foods, 58 F.3d 382, 385 (8th Cir.1995). In this case, the parties do not
dispute that the City is a "covered entity," that Burroughs has a "disability" as defined
in the ADA, or that Burroughs was "a qualified individual" under the ADA. 42 U.S.C.
§ 12112(a). But see Wood, 25 F.3d at 669 (affirming district court's finding that
insulin-using diabetics were not qualified to drive school buses). Because these issues
are not disputed, we will not discuss them. Instead, the dispute here centers on whether
the City took the adverse employment action "because of" Burroughs' disability. See
id.

       The district court concluded that Burroughs failed to demonstrate that the City's
adverse employment action was taken because of Burroughs' disability, and therefore,
he failed to state a claim under the ADA. For the reasons that follow, we agree.

       Our circuit has not yet addressed the precise question raised in this case. We take
guidance, however, from the Seventh Circuit, which has addressed a similar factual
scenario. See Siefken v. Village of Arlington Heights, 65 F.3d 664, 665-66 (7th Cir.
1995). The Village of Arlington Heights had hired Siefken as a probationary police
officer, knowing he was a diabetic but believing he "could monitor his medical
condition sufficiently to allow him to perform the duties of a patrol officer." Id. at 666.
Siefken failed to monitor his condition properly on one occasion, and he suffered a
diabetic reaction while on duty and driving a patrol car. Id. at 665. The Village
terminated Siefken and did not give him a second chance to prove he could successfully

                                            4
control his disease. Id. at 665, 666-67. Siefken brought a disability discrimination suit
under the ADA, but the district court dismissed the case for failure to state a claim. Id.
at 666. The Seventh Circuit affirmed, observing that the Village fired Siefken not
"because of" his disability, but because he failed to control a controllable disease. Id.
at 667. Although Siefken was capable of performing the job without accommodation,
his failure to control his disease resulted in a failure to fulfill his employer's legitimate
job expectations; accordingly, he failed to state an ADA claim.

        In the present case, the district court followed the reasoning of Siefken, and we
find it persuasive as well. Burroughs does not dispute that he has a controllable
disability. At the time he was hired as a police recruit, Burroughs himself assured the
City that his diabetes was under control. A preemployment medical evaluation
indicated that Burroughs was capable of performing the job with no limitations. Yet,
the undisputed evidence indicates that on two on-duty occasions, he suffered a severe
diabetic episode which rendered him unable to function on the job. Additionally, the
undisputed evidence indicates that the episodes were caused by nothing more than poor
timing of his meals and activities. Before removing Burroughs from his position as a
police recruit, the City sought another medical evaluation, which indicated that
Burroughs should not carry a weapon until he could successfully control his disease.
It is legitimate for the City to expect and require that patrol officers keep themselves
functional and alert at all times while on duty. See id. at 666. Burroughs failed to meet
this legitimate expectation on two occasions, and the ADA does not require the City
to provide him another chance to try to improve his diabetes monitoring technique
while on duty as a patrol officer. See id. at 666-67.

        Burroughs argues that the district court erred in relying on Siefken, because a
question of fact remains in the present case concerning whether Burroughs was at fault
for his on-duty hypoglycemic episodes. Burroughs attempts to raise a question of fact
from Dr. Koppers' statements that he was "extremely compliant in diet" and that there
was "good compliance" with the multiple insulin regimen. (Appellant's App. at 121.)

                                             5
At one point, Dr. Koppers stated his belief that Burroughs "can perform [the] duties
listed as a police officer." (Id.) These isolated comments do not create a question of
material fact, because Burroughs has taken them out of context. These statements are
taken from Dr. Koppers' initial report dated January 2, 1996, before he had reviewed
the medical records of Burroughs' latest on-duty episodes. This initial report outlined
the history of Burroughs' illness and the reason for the referral, and closes with the
statement, "will review records and send a letter." (Id.) In contrast, Dr. Koppers' letter,
written on January 11, 1996, after reviewing the latest reports and reevaluating
Burroughs, quite plainly states Dr. Koppers' opinion that while Burroughs can learn to
control his disease, he should not be in a position to carry a weapon until he has his
disease under control and is able to avoid hypoglycemic episodes. Dr. Koppers' earlier
statements do not contradict this conclusion because they were written before the latest
evaluation. Furthermore, in Burroughs' own statement and affidavit, he admits that the
episodes resulted from changes in his eating schedule. His own eating schedule is a
matter within his control. Burroughs has not identified a material question of fact that
precludes summary judgment.

       Burroughs also argues that the City removed him from active duty on nothing
more than a "knee-jerk" reaction based on an "ignoran[t] and baseless fear" (Appellant's
Br. at 13) that he might be a danger to the public. He asserts that neither the City nor
the district court considered the requisite factors to determine whether he was a "direct
threat" to the public as provided in the regulations. See 29 C.F.R. § 1630.2(r) (1998)
(defining "direct threat" as a "significant risk of substantial harm" and requiring
consideration of factors such as the duration of the risk, the nature and severity of the
potential harm, and the likelihood and imminence of the potential harm). We disagree.
While an individual may not be qualified for a position if that individual poses a "direct
threat" to the health or safety of others, see 42 U.S.C. § 12113(b), the parties in this
case agreed that Burroughs was a qualified individual so the "direct threat" inquiry is
not exactly on point. Nevertheless, a "direct threat" assessment may "be based on a
reasonable medical judgment that relies on the most current medical knowledge and/or

                                            6
the best available objective evidence." 29 C.F.R. § 1630.2(r); see also, Bragdon v.
Abbott, 118 S. Ct. 2196, 2210 (1998) (noting in a case under the public
accommodations chapter of the ADA that "the risk assessment must be based on
medical or other objective evidence"). A risk must be significant to constitute a direct
threat. See Bragdon, 118 S. Ct. at 2210.

       The City's decision to remove Burroughs from active patrol duty was made only
after Burroughs suffered two hypoglycemic episodes during which Burroughs failed
to remain alert and functional while on duty, and the City based the decision on a recent
medical evaluation by Dr. Koppers, a diabetes specialist. The City's letter to
Burroughs--outlining his option of resigning or choosing possible continued
employment in a demoted capacity--both referred to and relied on Dr. Koppers'
reasonable medical judgment assessing Burroughs' recent on-duty episodes. Dr.
Koppers concluded that Burroughs "could conceivably" be a danger to himself or others
and should not carry a weapon until he is able to function without significant diabetic
episodes. (See Appellant's App. at 86, 120.) Burroughs takes issue with the alleged
speculative nature of this opinion, but neither the City nor the doctor relied on
speculation. The uncontroverted facts demonstrate that Burroughs had recently
suffered two significant hypoglycemic episodes while on duty, proving he was not
consistently controlling his disease as he had represented at the outset. Fortunately, no
harm occurred to Burroughs or any others during the episodes, but the risk of an armed
patrol officer being unable to function in an emergency situation is not a risk we are
prepared to force a police department to accept. The inherent and substantial risk of
serious harm arising from such episodes, given the nature of police work, is self-
evident. The City's decision to remove Burroughs from duty was appropriately based
on objective evidence and reasonable medical judgment.

      We conclude that Burroughs failed to state a claim under the ADA because he
was capable of performing the job without accommodation, yet he failed on two
occasions to keep himself functional and alert on the job. Because Burroughs failed to

                                           7
state a claim, we need not reach his arguments that he was entitled to a reasonable
accommodation. We adopt the reasoning of the Seventh Circuit in Siefken and "only
hold that when an employee knows that he is afflicted with a disability, needs no
accommodation from his employer, and fails to meet the employer's legitimate job
expectations, due to his failure to control a controllable disability, he cannot state a
cause of action under the ADA." 65 F.3d at 667 (internal quotations and citation
omitted).

                                          III.

      Accordingly, we affirm the judgment of the district court.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT




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