March 2014 FBA Labor and Employment Law Third Circuit Update
Stephen E. Trimboli, Esq.
Trimboli & Prusinowski, L.L.C.
A State Police “Seizure Protocol,” which bars state troopers from performing full duty until they remain seizure free for a period of five years, is a valid and enforceable qualification standard under federal disability discrimination laws.
In Coleman v. Pennsylvania State Police, decided March 20, 2014, www2.ca3.uscourts.gov/opinarch/133255np.pdf, the Third Circuit Court of Appeals held that a Pennsylvania State Police policy, known as the “Seizure Protocol,” which bars state troopers from performing full duty until they remain seizure free for a period of five years, is a valid and enforceable qualification standard under federal disability discrimination laws.
The plaintiff in Coleman was a state police officer who was terminated prior to the completion of his probationary period. He had suffered three seizures within six months during his probationary period due to posttraumatic epilepsy he incurred as a result of a traumatic brain injury he received in an off-duty automobile accident. He was not permitted to return to full duty due to the application of the Seizure Protocol, which required him to remain seizure-free for a period of five years from the date of his last seizure. When it was determined that the State Police would not be able to retain the plaintiff on limited duty for five or more years (any intervening seizure episode would re-start the five-year clock), the plaintiff was terminated.
The Seizure Protocol had been established by the State Police Medical Officer, who drew on his own research into epilepsy recurrence and on consultations with the chief epileptologist at Hershey Medical Center to develop the Protocol. With limited exceptions arising from specific types of disorders, a person suffering from multiple seizures has 75 to 90 percent risk of another seizure within the next five years. But if that person remains seizure free for five years, the risk of another seizure drops to less than two percent. A state police officer who suffers a seizure while on duty would be unable to perform many of the functions required of officers.
The State Police Medical Officer determined that the Seizure Protocol should be applied to the plaintiff based on his review of the plaintiff’s medical history. However, the Medical Officer did not perform his own medical examination of the plaintiff. In contrast, the plaintiff presented a medical report from his personal physician opining that the plaintiff had a three percent or lower chance of a repeat seizure. The plaintiff was terminated nonetheless.
The plaintiff brought suit against the State Police in federal district court under the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794(a), which prohibits discrimination against an “otherwise qualified individual with a disability” in “any program or activity receiving federal financial assistance.” The standards used to determine whether the Rehabilitation Act has been violated are the same that are applied under Title I of the Americans with Disabilities Act: the plaintiff must show that he or she disabled, that he or she is otherwise qualified to perform the essential functions of the job with or without reasonable accommodation, and that he or she was nonetheless terminated or prevented from performing the job. If the employee makes this showing, the burden shifts to the employer to show that the accommodations requested by the plaintiff are unreasonable or would impose an undue burden on the employer.
Applying these standards, the district court granted summary judgment to the State Police, and the plaintiff appealed. He argued that he was qualified to work as a state police officer, that he did not pose a “direct threat” to public safety, and that the State Police failed to reasonably accommodate him.
The Third Circuit agreed that the plaintiff had not demonstrated that he was otherwise qualified to perform the essential functions of a state police officer. He had not completed the mandatory probationary period and was therefore not qualified to serve as an officer. Further, the qualification standard that prevented him from completing the probationary period – the Seizure Protocol – was a valid standard that prevented individuals from posing a “direct threat” to the health and safety of others. “In the context of regulations governing law enforcement officers, courts have found that ‘employers do not violate the ADA by ensuring that officers are … fit for duty.’” A “direct threat” is a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” The Seizure Protocol “appropriately addresses the issue of whether a Trooper candidate’s employment would pose a ‘direct threat’” based on the significant probability of the Trooper “having another incapacitating seizure … at a critical time.” The “time period of five years is a reasonable requirement and {is} suited to the end for which it is designed.” The record thus “adequately explained that the threat of a seizure is significant enough to constitute a ‘direct threat’ and that the Seizure Protocol is a justified response to that threat.”
The Third Circuit also rejected the plaintiff’s argument that an independent medical examination was required, or that the State Police Medical Officer was required to examine the plaintiff personally. The Medical Officer “was well aware of {the plaintiff’s} seizure history and applied the Seizure Protocol only after reviewing {the plaintiff’s} file and learning that {the plaintiff} had suffered a ‘generalized clonic/tonic seizure’… {he} did not necessarily need to re-examine troopers or trooper-candidates whose fitness for duty was in question.” He also had the “authority to override a treating physician’s recommendation.”
With respect to reasonable accommodation, the Third Circuit relied on existing Circuit precedent to hold that the State Police were not required to modify the essential functions of a job in order to accommodate the plaintiff, to create a new position in order to accommodate the plaintiff, or to transform a temporary light duty position into a permanent position for the plaintiff’s benefit. The plaintiff failed to establish that the State Police had an available vacant and funded position whose essential duties he was capable of performing that was at an equivalent level or duplication of the position he had previously held. Accordingly, the State Police had not violated any reasonable accommodation obligation owed to the plaintiff.
