APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING (D.C. No. 2:08-CV-00115-CAB)
The opinion of the court was delivered by: Henry, Circuit Judge.
Before TACHA, HENRY, and HARTZ, Circuit Judges.
Floyd Wilkerson worked on a temporary basis at the Cheyenne Veteran Affairs Medical Center as a boiler plant operator. Following a failed physical examination, the human resources manager notified him that he was reassigned to a lower paid position. Mr. Wilkerson brought suit against the Secretary of the U.S. Department of Veterans Affairs (the "VA"), claiming that this reassignment discriminated against him based on his obesity and diabetes, in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq., and that age discrimination played a role in his reassignment in violation of the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. §§ 626 and 633a(a). Mr. Wilkerson later tried to amend his complaint to allege that his health records were illegally accessed in violation of the Privacy Act, 5 U.S.C. § 552a. The district court granted summary judgment for the VA on all counts and denied Mr. Wilkerson's motion for leave to amend the complaint to allege the Privacy Act claim.
Because we find that Mr. Wilkerson was not otherwise qualified to hold the position as required by the Rehabilitation Act, we affirm the grant of summary judgment as to this claim. We also affirm the district court's grant of summary judgment as to his age discrimination claim because the VA had a non-discriminatory reason for removing Mr. Wilkerson that was not pretextual. Finally, because Mr. Wilkerson has not alleged that the accessing of the records was intentional misconduct, as required by the Privacy Act, we affirm the district court's denial of leave to amend the complaint.
Mr. Wilkerson is employed by the Department of Veterans Affairs in Cheyenne, Wyoming. In February 2003, he began work at the VA as a boiler plant operator under a temporary appointment. When that appointment ended in July 2003, the VA hired Mr. Wilkerson as a full-time permanent employee in housekeeping. In February 2005, Mr. Wilkerson was temporarily reassigned once again to work as a boiler plant operator due to a shortage of employees.
VA directives require that all boiler plant operators complete an annual fitness exam. In early 2007, because of an apparent oversight, the VA discovered that Mr. Wilkerson had not completed an annual fitness exam up to this point. Nurse Practitioner Ann Enlow conducted Mr. Wilkerson's physical examination on February 1, 2007. The exam results noted that Mr. Wilkerson was obese (at 6'3", Mr. Wilkerson weighed 338 pounds) and had diabetes. Ms. Enlow forwarded her report to Dr. James Johnson, an employee health physician at the VA. After reviewing Ms. Enlow's report, Dr. Johnson accessed Mr. Wilkerson's electronic patient records (Mr. Wilkerson had sought medical treatment at the VA for numerous years). From these records and Ms. Enlow's report, Dr. Johnson concluded that Mr. Wilkerson's diabetes was largely uncontrolled and uncontrollable.
Dr. Johnson spoke to the boiler room supervisors about the physical requirements of the job, as well as with members of the engineering department and human resources.
Ultimately, Dr. Johnson concluded that Mr. Wilkerson was unable to meet the minimum requirements of the boiler plant operator position.
The VA Center for Engineering & Occupational Safety and Health (CEOSH) has established guidelines for work as a boiler plant operator at a VA facility. The guidelines state that "Applicants for all boiler plant operators and heating and boiler plant equipment mechanic positions must demonstrate to the Occupational Health Provider's satisfaction that they are capable of arduous physical exertion." Aple's App. at 00092. Such employees, the guidelines report: frequently work in confined areas in and around boilers and support equipment. The work requires moderate to strenuous effort and long periods of walking, standing, climbing, bending and crouching. Workers frequently lift and carry boiler parts and chemical supplies weighing up to 40 pounds unassisted and occasionally items weighing over 40 pounds with assistance of other workers or weight-handling equipment.
Id. The guidelines then state that any "structural or functional limitation or defect that interferes materially with a high degree of physical activity will disqualify the individual" and sets a number of criteria that are "exclusionary," among these are "[u]ncontrolled or poorly controlled insulin-dependent diabetes." Id. at 00092, 00093. Finally, "boiler plant operators must have annual physical examinations to ensure physical fitness to perform assigned duties." Id.
Accordingly, Dr. Johnson called Sandra Willoughby, the Human Resources Officer for the VA at the time, and told her that Mr. Wilkerson had failed his physical, noting Mr. Wilkerson's uncontrolled diabetes and his concern about Mr. Wilkerson's ability to perform challenging physical tasks. Ms. Willoughby told Mr. Wilkerson that he failed his physical, and that he no longer met the environmental requirements for a boiler plant operator because he weighed over 300 pounds and the ladders in the boiler plant only supported up to 300 pounds. After he received the letter, Mr. Wilkerson requested that special accommodations be made for his weight; specifically he asked that the VA purchase ladders that would support his weight. According to the deposition testimony of Ms. Willoughby, the VA considered this option but dismissed it because the other issues raised by the physical would still preclude his safe employment. Id. at 00066 (Deposition of Ms. Willoughby). Ms. Willoughby informed Mr. Wilkerson that the VA was reassigning him back to housekeeping, effective the next day. Id. at 00032.
After Mr. Wilkerson's reassignment to housekeeping, his pay grade fell eight levels, from WG-10 to WG-2, and his hourly pay decreased from $21.98 an hour to $12.51 an hour.
Mr. Wilkerson brought suit against the Department of Veterans Affairs Secretary, James B. Peake, alleging that the VA had discriminated against him in violation of the Rehabilitation Act, 29 U.S.C. §§ 791, 794, that the VA failed to accommodate his disability, 42 U.S.C. § 12112 et seq., and that he was unlawfully discriminated against based on his age in violation of the ADEA, 29 U.S.C. § 626 and 633a(a). While the VA's summary judgment motions were pending, Mr. Wilkerson asked for leave to amend his complaint to include a violation of the Privacy Act, 5 U.S.C. § 552a, alleging that Dr. Johnson wrongfully accessed Mr. Wilkerson's private medical records.
The district court granted summary judgment for the VA as to all of Mr. Wilkerson's claims. The district court also denied Mr. Wilkerson's motion for leave to file his amended complaint, ruling that any ...