Carl Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995). · Go Syfert
Carl Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995). Cases Citing This Book View Copy Cite
Quick Summary

An individual is not a qualified employee if their disability poses a direct threat to safety that cannot be mitigated by reasonable accommodations.

A part-time city bus driver diagnosed with insulin-dependent diabetes was relieved of his position due to federal regulations prohibiting such individuals from operating commercial vehicles. He sued under the Americans with Disabilities Act, arguing the city failed to seek a regulatory waiver or reassign him to another position. The court holds that an insulin-dependent diabetic is not a qualified individual for a driving position as a matter of law because the condition poses a direct threat to safety. Furthermore, the ADA does not require employers to provide affirmative action or priority in hiring or reassignment over non-disabled employees. Because the plaintiff did not show he was treated worse than other displaced part-time employees, the city did not discriminate.

269 citation events (68 in the last 25 years) across 46 distinct courts.
Treatment trajectory · 1995 → 2026 · click a year to view as-of
1995 2010 2026
Cited for
At page 700 Not requiring affirmative action in disability hiring75 citing casesnoting “we do not read the ADA as requiring affirmative action in favor of individuals with disabilities, in the sense of requiring that disabled persons be given priority in hiring or reassignment over those who are not disabled.8 citing courts put it this way · 67 listed here
  • Jones, No. 1:24-cv-00350 (E.D. Tex. June 24, 2026).
    ([W]e do not read the ADA as requiring affirmative action in favor of individuals with disabilities, in the sense of requiring that disabled persons be given priority in hiring or reassignment over those who are not dis…)
  • Equal Emp. Opportunity Comm'n v. Clarksville Health Sys., G.P., 617 F. Supp. 3d 844 (M.D. Tenn. 2022).published
    ([W]e do not read the ADA as 19 This particular policy provision is very significant in this case because the ADA “does not require an employer to reassign a qualified disabled employee to a vacant position when such a…)
  • Equal Emp. Opportunity Comm'n v. Sara Lee Corp., 237 F.3d 349 (4th Cir. 2001).published 2 cites
    ([W]e do not read the ADA as requiring affirmative action in favor of individuals with dis- abilities, in the sense of requiring that disabled persons be given prior- ity in hiring or reassignment over those who are not…)
  • Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999).published 5 cites
    See Daugherty v. City of El Paso, 56 F.3d 695, 699 (5th Cir.1995) (“[W]e do not read the statutory reference to employment an individual ‘desires’ as applicable only to job applicants.
  • Smith v. Midland Brake, Inc., 138 F.3d 1304 (10th Cir. 1998).published 4 cites
    ([W]e do not read the ADA as requiring affirmative action in favor of individuals with disabilities, in the sense of requiring that disabled persons be given priority in hiring or reassignment over those who are not dis…)
  • Gentile v. Touro Law Ctr., No. 2:21-cv-01345, 2024 WL 1199512 (E.D.N.Y. Mar. 20, 2024).
    Bank of N.Y., 91 F.3d 379, 385 (2d Cir. 1996) (“[W]e do not read the ADA as requiring affirmative action in favor of individuals with disabilities, in the sense of requiring that disabled persons be given priority in hiring or reassignment…
  • Morrison v. Am. Airlines, Inc, No. 4:23-cv-00813 (N.D. Tex. Feb. 13, 2024).
    Daughtery v. City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995).
  • Frost v. Developmental Servs., No. 3:19-cv-01572 (D. Conn. Feb. 14, 2022).
    Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995); see also Wernick, 91 F.3d at 385 .
  • Reed v. Nissan North Am., Inc., No. 3:20-cv-00049 (S.D. Miss. May 10, 2021).
    “priority in hiring or reassignment over those who are not disabled”
  • United States Equal Emp. Opportunity Comm'n v. St. Joseph's Hosp., Inc., 842 F.3d 1333 (11th Cir. 2016).published
    (holding that the ADA does not require disabled persons be given priority in hiring or reassignment over those who are not disabled.)
Show 57 more citing cases
At page 698 Defining qualified individuals under disability laws25 citing casesholding that an individual is not qualified for a job if there is a genuine substantial risk that he could be injured or *1091 could injure others and the employer cannot modify the job to eliminate that risk3 citing courts put it this way
  • Everett v. 357 Corp., 904 N.E.2d 733 (Mass. 2009).published
    (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)
  • Smith v. Midland Brake, Inc., 138 F.3d 1304 (10th Cir. 1998).published 4 cites
    The ADA “prohibits employment discrimination against qualified individuals with disabilities, no more and no less.” Foreman, 117 F.3d at 810 (citations and internal quotation marks omitted); see also Wernick v. Federal Reserve Bank, 91 F.3…
  • Equal Emp. Opportunity Comm'n v. Drivers Mgmt., LLC, No. 8:18-cv-00462 (D. Neb. May 23, 2024).
    Siefken v. Village of Arlington Heights, 65 F.3d 664, 667 (7th Cir. 1995); Daughterty v. City of El Paso, 56 F.3d 695, 698 (5th Cir. 1995); accord Lipp v. Cargill Meat Sol.
  • Armitage v. BNSF Ry. Co., No. 4:20-cv-00209 (N.D. Tex. July 6, 2021).
    BNSF’s qualification argument is twofold: (1) “employees who used certain medications, including opioids, [are] no longer [] qualified to work in roles involving safety-sensitive duties[,]” Mot. 19, ECF No. 31; and (2) “to be ‘qualified,’…
  • Harris v. Foxx, 257 F. Supp. 3d 67 (D.D.C. 2017).published
    (addressing the standard in an ADA case, which has identical standards to the Rehabilitation Act, see supra note 11)
  • Equal Emp. Opportunity Comm'n v. Methodist Hospitals of Dallas, 218 F. Supp. 3d 495 (N.D. Tex. 2016).published
    See Holtzclaw v. DSC Communications Corporation, 255 F.3d 254, 260 (5th Cir. 2001) (“Because, in regard to other types of discrimination claims, including other ADEA claims, we consistently have required that a plaintiff be qualified for t…
  • Molina v. DSI Renal, Inc., 840 F. Supp. 2d 984 (W.D. Tex. 2012).published
    DSI cites to Daugherty v. City of El Paso, where an insulin-dependent diabetic was found unqualified for the position of city bus driver. 56 F.3d 695, 698 (5th Cir.1995).
  • Alfred Toronka v. Cont'l Airlines, Inc., 411 F. App'x 719 (5th Cir. 2011).unpublished
    See 42 U.S.C. § 12111 (9) ("The term ‘reasonable accommodation' may include ... reassignment to a vacant position" (emphasis added)); Daugherty v. City of El Paso, 56 F.3d 695, 698-99 (5th Cir. 1995). 5 .
  • MILLAGA v. City of Sioux City, 258 F. Supp. 2d 976 (N.D. Iowa 2003).published
    For example, the Fifth Circuit Court of Appeals briefly discussed, and upheld, a “blanket exclusion” for diabetic police officers in Gonzales v. City of New Braunfels, Tex., 176 F.3d 834 (5th Cir.1999), as follows: [W]e observe that, under…
  • Newman v. Chevron U.S.A., 979 F. Supp. 1085 (S.D. Tex. 1997).published
Show 15 more citing cases
At page 696 Defining direct threat and reasonable accommodation requirements24 citing cases23 listed here
Show 13 more citing cases
At page 699 Interpreting statutory scope for disabled employees' desires12 citing cases[W]e do not read the statutory reference to employment an individual ‘desires’ as applicable only to job applicants. Instead we read this language as extending to individuals like [the plaintiff] who are already employed and then become disabled, since the broad prohibition against discrimination…1 citing court put it this way
Show 2 more citing cases
At page 697 Determining disability status under the ADA9 citing casesThe city argues that Daugherty’s medical condition is not a disability under the ADA. Finding other issues dispositive, we preter-mit the question of whether…opening of page *697 (no citing court says what it cites this page for) · 8 listed here
At page 695 “a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training and other terms, conditions, and privileges of employment.”0 citing cases4 citing courts quote it
    Other citing cases1 with no pin cite or quoted language on record
    Retrieving the full opinion text from the archive…
    Carl DAUGHERTY, Plaintiff-Appellee,
    v.
    the CITY OF EL PASO, Defendant-Appellant
    94-50212.
    Court of Appeals for the Fifth Circuit.
    Jul 3, 1995.
    Published opinion
    56 F.3d 695
    1995 U.S. App. LEXIS 16960
    1995 WL 360325
    Daniel H. Hernandez, Laura K. Norden, Asst. City Attys., El Paso, TX, for appellant., Howard A. Hickman, Smith & Gopin, El Paso, TX, for appellee.
    Reavley, Garwood, Garza.
    Cited by 165 opinions  |  Published
    Pinpoint authority: bottom 79%
    Citer courts: S.D. Mississippi (1)
    REAVLEY, Circuit Judge:

    Carl Daugherty was awarded a money judgment against the City of El Paso under the Americans with Disabilities Act (ADA or Act), 42 U.S.C. §§ 12101-12213. We reverse and render.

    BACKGROUND

    In 1991 Daugherty was hired by the city as a “coach operator,” i.e. a public bus driver. This position was a part-time permanent position under the city’s civil service regime. In June of 1992 Daugherty was diagnosed as an insulin-dependent diabetic. As a result of this diagnosis the city placed him on a leave of absence without pay and relieved him of his job as a coach operator. As discussed further below, Daugherty does not argue, nor do we see, that the city violated the ADA by relieving'Daugherty of his position as a coach operator upon his diagnosis. Instead, Daugherty argues that a violation occurred because the city faded to pursue a waiver of his disqualification from operating a commercial motor vehicle with the Department of Transportation, and failed to place him in another position on the city payroll.

    After a jury trial, the court entered a judgment for $5000 in compensatory damages as found by the jury, together with backpay, interest and attorney’s fees as determined by the court.

    DISCUSSION

    The city raises numerous arguments on appeal. Among them, it argues that Daugherty does not have a disability under the ADA, that he was not a “qualified individual with a disability,” and that the city established as a defense that it acted in good faith to make a reasonable accommodation for Daugherty. To place these arguments in legal context, we briefly set out the relevant contours of the ADA.

    The ADA expansively prohibits discrimination in employment against persons with a disability, providing that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). A “disability” includes “a physical or mental impairment that substantially limits one or more of the major life activities of such individual” and “being regarded as having such an impairment.” Id. § 12102(2).

    A “qualified individual with a disability” means “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” Id. § 12111(8). “Discrimination” includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.” Id. § 12112(b)(5)(A). “The term ‘reasonable accommodation’ may include ... ‘reassignment to a vacant position.’ ” Id. § 12111(9) (emphasis added). However, “[i]t may be a defense to a charge of discrimination under this chapter that an alleged application of qualification standards ... that screen out or tend to screen out or otherwise deny a job ... to an individual with a disability has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation-” Id. § 12113(a). “‘[Qualification standards’ may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace.” Id. § 12113(b). “The term ‘direct threat’ means a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” Id. § 12111(3).

    [*697] The city argues that Daugherty’s medical condition is not a disability under the ADA. Finding other issues dispositive, we preter-mit the question of whether insulin-dependent diabetes, either as a general matter or under the specific facts of this ease, constitutes a disability under the Act. [1]

    A. Qualified Individual with a Disability

    The city argues that Daugherty was not a qualified individual with a disability. We agree in part. Daugherty was not qualified to perform the essential functions of a city bus driver once he was diagnosed as an insulin-dependent diabetic. He does not argue otherwise. He concedes in his brief that “[t]he Department of Transportation regulations ... prohibited him from operating a truck over 26,001 pounds or a bus which seats more than 16 passengers.” The parties stipulated at trial that federal regulations prohibit individuals with insulin-dependent diabetes from operating commercial motor vehicles, i.e. those that weigh more than 26,-001 pounds or buses which seat more than 16 people. [2] Daugherty makes no argument that the ADA’s requirement that the employer reasonably accommodate the disability would extend to violating federal law.

    The city argues that our inquiry should end here. Daugherty argues, however, that as a reasonable accommodation, the city either should have requested a waiver from the Department of Transportation, or reassigned him to another position.

    B. Reasonable Accommodation

    1. Waiver of Federal Regulations

    The Department of Transportation does provide for waivers of its regulatory requirements. There were disputes here as to whether a waiver is possible given Daugherty’s medical condition, [3] and the extent to which the city pursued a waiver. Our decision, however, does not turn on these factual issues.

    Instead, we believe we are bound by Chandler v. City of Dallas, 2 F.3d 1385 (5th Cir.1993). In Chandler, the City of Dallas adopted requirements for “primary drivers” whose positions require frequent driving. As in our ease, the city followed Department of Transportation regulations which provide that an insulin-dependent diabetic is not a qualified driver. Plaintiff Chandler was deemed unqualified for his primary driver position as an electrical repairman. The district court entered relief in his favor. We reversed and rendered.

    In Chandler, the claim was brought under the Rehabilitation Act, 29 U.S.C. §§ 701-797b, which prohibits discrimination against individuals with disabilities in programs that receive federal financial assistance. The elements of a cause of action at issue in our case, however, are virtually the same under the Rehabilitation Act and the ADA. As explained above, the ADA prohibits discrimi[*698] nation against a “qualified individual with a disability,” and discrimination includes not making a reasonable accommodation for “an otherwise qualified” individual with, a disability. 42 U.SlC. §§ 12112(a), 12112(b)(5)(A). Similarly, the Rehabilitation Act prohibits discrimination against an “individual with a disability” [4] who is “otherwise qualified,” 29 U.S.C. § 794. We also noted in Chandler that the two Acts define a disability in substantially the same terms. 2 F.3d at 1391.

    In Chandler, we reasoned as follows. The definition of a qualified handicapped individual under the Rehabilitation Act includes a personal safety requirement:

    [A]n 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.” “[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.”

    Id. at 1393 (quoting Chiari v. City of League City, 920 F.2d 311, 317 (5th Cir.1991)). Again, the ADA by its terms recognizes the same safety requirement. It allows qualification standards that “include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace,” and defines a “direct threat” as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” 42 U.S.C. §§ 12113(b), 12111(3).

    Pursuing this inquiry further, we held as a matter of law that a driver with insulin-dependent diabetes is not otherwise qualified because his medical condition presents a genuine substantial risk that he could injure himself or others:

    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 drivers or special agents with the Federal Bureau of Investigation. We are aware of no cases holding that insulin dependent diabetes does not present - a 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 ... presents a genuine substantial risk that he could injure himself or others. We echo the sentiment expressed by this court in Collier [v. City of Dallas, 798 F.2d 1410 (1986) ]: “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.”

    2 F.3d at 1395 (citations, footnotes omitted).

    A waiver of Department of Transportation regulations would in no way address the concern stated in Chandler; it might avoid the legal impediment to Daugherty’s desire to continue to drive a bus, but it would not alter his medical condition. In our circuit, such a condition, as a matter of law, makes him not “otherwise qualified” to drive a bus under the Rehabilitation Act. For the reasons explained above, this holding likewise compels us to hold that under the ADA Daugherty is not “a qualified individual with a disability” for the position of bus driver. This essential element of his claim is lacking even if the city could have accommodated him by obtaining a waiver.

    2. Reassignment

    In the alternative Daugherty argues that the city should have made a reasonable accommodation by reassigning him to another position on the city payroll. To be sure, under the ADA a reasonable accommodation “may include ... reassignment to a vacant position,” 42 U.S.C. § 12111(9) (emphasis added), and the Act defines a qualified individual with a disability as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that[*699] such individual holds or desires.” Id. § 12111(8) (emphasis added). Contrary to the city’s position, we do not read the statutory reference to employment an individual “desires” as applicable only to job applicants. Instead we read this language as extending to individuals like Daugherty who are already employed and then become disabled, since the broad prohibition against discrimination found in 42 U.S.C. § 12112(a) extends not only to hiring and job application procedures, but to advancement, discharge of employees, “and other terms, conditions, and privileges of employment.” The evidence relevant to this issue, disputed where indicated, included the following.

    After his diagnosis, Daugherty was placed on leave without pay. The city did provide him with a monthly stipend for some period of time and paid his tuition for retraining. Daugherty was referred to the city’s personnel office, which posts job openings. The personnel office does not have authority to hire for other departments, but did apprise Daugherty of several openings. City employment practices generally are governed by city charter, which can only be changed through an election. The charter gives an order of priority for filling vacancies. While employees physically incapacitated from performing their jobs are given the highest priority, full-time employees are given priority over part-time employees such as Daugherty. The city has relatively few part-time positions. The city’s director of personnel explained the problems the city would have faced if it had ignored the.charter’s hiring priorities: “If we were to give Mr. Daugherty a fall time position, we might very well have a complaint from an employee who had been waiting for that vacancy for promotion, who had been a full time employee five to ten years, had been preparing for that job and Mr. Daugherty was placed in it with some eight or nine months service, priority over him. I believe we would have had a lawsuit.” A part-time employee can move to a full-time position only after taking an original exam or a promotional exam.

    The city offered evidence that it did offer a toll booth position to Daugherty, but he rejected it because the pay was too low. Daugherty claims that the position was never actually offered to him. Daugherty applied to take an examination for a fire dispatcher, a position he found posted , at the personnel office. He was later informed that he was disqualified from taking the examination, since under civil service rules an employee is not eligible to take a promotional exam unless he has received at least a “meets minimum requirements” rating on the last two performance evaluation reports for his current position. On one such report Daugherty had received a lower “marginal” rating. This report preceded his diagnosis for diabetes, and there wás no evidence that his later diagnosed condition played any role in the evaluation.

    The personnel office also apprised Daugherty óf openings that would be available for airport shuttle bus positions. These positions were not covered by the Department of Transportation regulations discussed above. These were full-time positions. None of the positions were filled by new hires or part-time employees. Daugherty would have needed to take an examination to qualify for the. shuttle bus position. While the personnel manager who was working with Daugherty in the personnel office admitted that he did not inform, Daugherty of the date of the exam, he did tell Daugherty to look at the job announcement. As for obtaining the application .to take the exam, his position was that Daugherty “is a grown man, he should have done it.”

    The extent to which Daugherty was willing to accept other positions was disputed. On August 19, 1992, he wrote a letter to the city in which he requested that (1) he be reinstated to the coach operator position, (2) the city file a waiver application, and (3) “[a]s a last resort, I wish the City Personnel Office to find a position within the City that I am qualified for with no. loss of pay, hours, or seniority.” The city’s director of personnel explained the difficulties in meeting these demands: “I think primarily what we mean is that to accommodate Mr. Daugherty in the way that he requested accommodation, same pay, same, at least same hours, would have required us to probably put him in a full time position. If we had done that, we would have violated our own rules and regulations, we would have subjected ourselves to a lot of liability, which ends up being an undue hard[*700] ship not only on the City, but for the taxpayers.” Daugherty claims that he was willing to take other positions as well. He testified that he made daily trips to the personnel office, that it would get his hopes up by telling him of positions, and then dash his hopes by'telling him later that he was not qualified for them.

    Again, we find guidance in a Rehabilitation Act case, Chiañ. We explained in that case that under that Act, “[t]he City must accommodate [plaintiffs] disease unless it ‘can demonstrate .that the accommodation would impose an undue hardship on the operation of its program.’ For example, the City is not required to fundamentally alter its program. Nor is the City required to find or create a new job for [plaintiff]_” 920 F.2d at 318 (citations omitted). Such an approach is equally applicable to the ADA, which recognizes that an employer is not required to endure undue hardship in accommodating the disability. 42 U.S.C. § 12112(b)(5)(A).

    Even viewing all the disputed evidence in favor of Daugherty, his ADA claim must fail because he did not show that he was treated differently from any other part-time employee whose job was eliminated. Perhaps the city could fundamentally alter its approach towards all its displaced employees. Perhaps it could be moré flexible in assigning part-time employees whose jobs are eliminated to full-time positions, more helpful in matching displaced employees to openings in other departments, prompter in fining -up job interviews at departments with openings, etc. What Daugherty failed to show, however, was that any such alleged failings were the result of discrimination based on his disability. There was no proof that the city treated him worse than it treated any other displaced employee.

    Stated another way, we do not read the ADA as requiring affirmative action in favor of individuals with disabilities, in the sense of requiring that disabled persons be given priority in hiring or reassignment over those who • are not disabled. It prohibits employment discrimination against qualified individuals with disabilities, no more and no less.

    JUDGMENT REVERSED; CASE DISMISSED.

    1

    . We note, however, that the Equal Employment Opportunity Commission, in its Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. Part 1630 App. (1994), believes that insulin-dependent diabetes is a disability under the Act:

    The existence of an impairment is to be determined without regard to mitigating measures such as medicines, or assistive or prosthetic devices.... For example, an individual with epilepsy would be considered to have an impairment even if the symptoms of the disorder were completely controlled by medicine. Similarly, an individual with hearing loss would be considered to have an impairment even if the condition were correctable through the use of a hearing aid.
    ^5 ‡ Sfc 5(5 Sf!
    Similarly, 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.
    2

    . See 49 C.F.R. §§ 383.5, 383.23, 383.71, 391.41 (1994). The city also produced undisputed evidence that an applicant for a Texas intrastate commercial driver's license must also meet the physical qualifications set out in § 391.41, which requires that the driver have "no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control.”

    3

    . Compare 49 U.S.C. § 31136 and 49 C.F.R. § 383.7 (1994) (general provisions for waiver of compliance with commercial motor vehicle regulations) with 49 C.F.R. § 391.49 (1994) (limiting waiver of physical requirements found in 49 C.F.R. § 391.41 to certain impairments not including diabetes).

    4

    . The Rehabilitation Act previously referred to individuals with a “disability” as "handicapped” individuals.