PER CURIAM:
Plaintiff-Appellant David Atkins, a law enforcement park ranger, was transferred to a staff ranger position based on the conclusion of a medical review board constituted by the National Park Service (an agency of the Department of the Interior) that his uncontrolled diabetes could prevent him from safely performing his duties. Atkins filed suit under the Rehabilitation Act, claiming that his transfer amounted to discrimination on the basis of his alleged disability. The litigation focused on Atkins's challenge to the Department of the Interior's affirmative defense that Atkins's transfer was job-related and
In 1984, Plaintiff-Appellant David Atkins ("Atkins") began employment at the National Park Service ("NPS"), an agency of the Department of the Interior ("Interior"), as a law enforcement park ranger ("park ranger"). Atkins was diagnosed with Type 1 diabetes in 1986.
In March 1999, Interior promulgated new medical qualification standards (the "Standards") for park rangers. The Standards were created pursuant to 5 C.F.R. pt. 339, entitled "Medical Qualification Determinations," which was promulgated, after a notice-and-comment process, in 1989.
Id.
Agencies are, therefore, "authorize[d] to establish physical requirements for individual positions . . . when such requirements are considered essential for successful job performance. The requirements must be clearly supported by the actual duties of the position." 5 C.F.R. § 339.203. Similarly, "[a]gencies may establish periodic [medical] examination . . . programs by written policies or directives to safeguard the health of employees whose work may subject them or others to significant health or safety risks due to occupational or environmental exposure or demands." 5 C.F.R. § 339.205.
Following the directives of 5 C.F.R. pt. 339, NPS issued Director's Order #57: Occupational Medical Standards, Health and Fitness (the "Order") on March 1, 1999. The Order observed that a 1996 study conducted by Interior had proposed the adoption of new medical standards for park rangers. Consequently, NPS decided to "adopt appropriate medical standards. . . . [with] a specific goal [of] ensur[ing] that all employees assigned law enforcement, fire fighting, and other physically rigorous duties are able to safely perform those duties." The Order made clear that "[a]n employee who does not meet the medical standards established for such work may not perform law enforcement or fire fighting work . . . unless the Medical Standards Board approves a request for reasonable accommodation." Following the issuance of the Order, NPS issued the Standards.
The Standards themselves cover a range of physiological requirements and include a nonexhaustive list of "medical conditions and/or physical impairments that may be disqualifying." The Standards specifically provide that "[i]ndividual assessments will be made on a case-by-case basis to determine an individual's ability to meet the performance related requirements covered by these standards." The relevant Standard for the instant case is the "Endocrine and Metabolic Systems Standard," which deals with "excess[es] or deficienc[ies] in hormonal production [that] can produce metabolic disturbances affecting weight, stress adaptation, energy production, and a variety of symptoms or pathology such as elevated blood pressure, weakness, fatigue[,] and collapse." Under this Standard, "[a]ny condition affecting normal hormonal/metabolic functioning and response that is likely to adversely affect safe and efficient job performance is generally disqualifying." Among the listed "conditions which may result in disqualification" is "insulin dependent diabetes mellitus," which Atkins has.
Pursuant to this Standard, a medical review of Atkins was conducted on June 27, 2000. Following the review, on July 29, 2000, Atkins was found not to be medically qualified to serve as a park ranger due to his poor vision, his history of asthma, and his diabetic condition.
In placing Atkins on light duty, the MRB explained to Atkins that he was not in compliance with the requirements of his previous waiver. In particular, the MRB observed, the examining physician had reported that Atkins's most recent HA1C test showed an elevated level of 9.4%, meaning that Atkins's diabetes did "not appear to be well controlled." The MRB further observed that Atkins was also at risk for hypoglycemia, which is a state of lowered glucose levels that is capable of "affect[ing] attention, concentration, thinking, judgment, decision-making, reaction time[,] and hand-eye coordination, along with causing irritability, confusion[,] and rapid changes in [an individual's] level of consciousness." In particular, the MRB noted that "the risk of hypoglycemia is higher for individuals who use insulin, especially. . . an insulin pump." For park rangers, with their "arduous and hazardous" duties, often "performed under variable and unpredictable working conditions. . . includ[ing] unplanned mealtimes [and the] possibility of missed meals," there is "potential for hypoglycemia."
Atkins appeared before the MRB to appeal the denial of his waiver. While the MRB recognized that Atkins had performed his duties without incident, one MRB member summarized NPS's concerns as follows:
Atkins admitted, in response, that the nature of his work prevented him from eating regularly or healthily: "[U]nfortunately doing what a lot of law-enforcement people do . . . our diet's not exactly the greatest thing in the world, because if you're on patrol and you're the only one working, you can't exactly go someplace and have a decent meal. So you run through a fast-food place."
The MRB's physician remarked that Atkins's blood sugar fluctuated wildly: "[B]etween
Of particular concern to the MRB was that Atkins might be unable to feel when his blood-glucose levels were perilously low:
The MRB's concern was clear: Atkins might not sense the onset of an incapacitating hypoglycemic event and, therefore, fail to take appropriate action. As the MRB explained, in such an event, the risks to the public, other NPS employees, and Atkins himself could be serious:
Following this hearing, on August 12, 2005, the MRB informed Atkins that he would not be granted a third waiver.
Following the MRB's determination, NPS revoked Atkins's law enforcement commission on September 6, 2005, and on March 20, 2006, offered him a staff ranger position (a non-law enforcement position) at the same pay grade and duty location. Atkins accepted that offer and continues to hold this position today.
Atkins filed a discrimination complaint challenging his transfer to staff ranger with Interior's Equal Employment Office on October 18, 2005, alleging that the NPS wrongly removed him from his position because he was an insulin dependant diabetic. Following a hearing, the Administrative Law Judge decided that Atkins had not been discriminated against, and on July 2, 2007, Interior issued a Final Agency Decision affirming the Administrative Law Judge's findings. Atkins v. Kempthorne, 353 Fed.Appx. 934, 935-36 (5th Cir. 2009). Atkins appealed Interior's decision to the Equal Employment Opportunity Commission on August 6, 2007. After initially failing to properly exhaust his administrative remedies, see id. at 936, Atkins later properly filed a discrimination suit against Interior, in the District Court for the Northern District of Mississippi on
Atkins sued Interior under the Rehabilitation Act, 29 U.S.C. § 791. The Rehabilitation Act itself incorporates the standards of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12111 et seq., ("ADA") for determining whether there has been impermissible "nonaffirmative action employment discrimination." See 29 U.S.C. § 791(g). The ADA prohibits discrimination against "a qualified individual on the basis of a disability 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).
42 U.S.C. § 12112(b)(6).
Atkins contended that his diabetes is a disability that "substantially limits his major life activities of eating, caring for himself[,] and metabolizing food." However, despite his disability, Atkins alleged that he is a "qualified person with a disability and has met all of the requirements of a law enforcement ranger." "NPS disqualified [him] because of a medical qualification standard that it used to declare Atkins's diabetes `uncontrolled' and inconsistent with his law enforcement duties," and therefore his demotion was prohibited discrimination.
Atkins made two related claims in this regard. First, Atkins alleged that Interior's revocation of his law enforcement commission because of his diabetes was improper because it was "done without substantial evidence or any evidence whatsoever that would show that [Atkins] could not [meet] his essential duties [as a park ranger]." In other words, Atkins argued that Interior demoted him because "[Atkins] has diabetes and [Interior] acted on stereotype and speculation instead of [Atkins]'s abilities," an impermissible form of
In response to Atkins's complaint, Interior filed a pre-answer motion to dismiss or for summary judgment, in the alternative, with several attached documents. Interior made several counter-arguments. First, Interior argued that Atkins was not disabled because he "does not have an impairment that affects a major life activity such as performing manual tasks, walking, seeing, hearing, [etc.] . . . ." Second, Interior contended that Atkins was not perceived as disabled by NPS since "none of his supervisors regard[ed] him as disabled." Third, Interior asserted that Interior "provided legitimate[,] nondiscriminatory reasons for its actions . . . [that Atkins] cannot show . . . are pretext." Namely, NPS had a "legitimate, nondiscriminatory" interest in "the safety of the public and its workers."
In his response to Interior's motion, Atkins argued that he did have a "physical impairment, diabetes, that `substantially limits several [major] life activities, including eating for himself and metabolizing food.'" Atkins also contended that Interior had misunderstood his claim: "[T]his is not a burden case; Atkins's claims arise under [the Rehabilitation Act]." Accordingly, Atkins argued, NPS's "adoption of a diabetes qualification was not . . . subject to . . . McDonnell Douglas proof that the standards were a pretext for discrimination." Rather, "when a qualification standard screens out people who are . . . disab[led], the plain language of the ADA require[s] the defendant . . . to plead and prove as an affirmative defense that its qualification was job-related and consistent with business necessity." See 42 U.S.C. § 12113(a). Thus, Atkins asserted that Interior, by failing to understand his argument, "ha[d] not presented and argued any evidence relevant to the . . . issues of job relatedness and business necessity," a proper affirmative defense to a Rehabilitation Act claim. Atkins also noted that Interior's reference to Atkins's purported inability to do his job safely indirectly invoked a second affirmative defense under the ADA, that "`a[] [disabled] individual shall not pose a direct threat to the health or safety of individuals in the workplace.'" See 42 U.S.C. § 12113(b). Atkins concluded that because Interior had the "burden of proceeding with evidence" under these affirmative defenses and had not done so, neither dismissal of his claim nor summary judgment was proper.
Interior responded to Atkins's arguments by directly stating that Atkins was a "direct threat to himself, fellow officers, and the public." After Interior submitted this brief, Atkins requested leave to file a sur-reply since "[Interior] ha[d] improperly raised in [its] reply brief a significant new basis for summary judgment against [Atkins]: the affirmative defense that the
After both sides submitted these various briefs, the district court went on to consider Interior's original motion to dismiss and its attached exhibits. Following Federal Rule of Civil Procedure 12(d), the district court treated the motion to dismiss as a motion for summary judgment. See Atkins v. Salazar, No. 1:10CV40-SA-JAD, 2010 WL 3937960, at *3 (N.D.Miss., Oct. 5, 2010); see also Fed.R.Civ.P. 12(d), 56(c). The district court found that "there [wa]s a genuine issue of material fact as to whether [Atkins] is substantially limited in the major life activity of eating such that he may be disabled under the Rehabilitation Act." Id. at *4.
The district court then turned to the question of whether the NPS guidelines were "a qualification standard that screens out or tends to screen out disabled persons," noting that the ADA, and therefore the Rehabilitation Act, affords "employer[s] an affirmative business-necessity defense to claims challenging the application of an otherwise problematic standard." Id. at *5. Reviewing the evidence, the district court found that "[the NPS medical] standard [under which Atkins was demoted] was not created arbitrarily, but rather was based upon evidence of a safety risk posed by hypoglycemia in insulin dependent diabetics, a risk which prevents the effective functioning of a law enforcement Park Ranger." Id. at *7. The district court then granted summary judgment for Interior on the business necessity defense, concluding that NPS's "Medical Standards medically disqualifying those with uncontrolled insulin-dependent diabetes are job-related and consistent with [the] business necessity [defense]." Id. Atkins appeals the district court's grant of summary judgment.
Atkins appeals the district court's grant of summary judgment to Interior on two bases. First, Atkins argues that the district court's grant of summary judgment for Interior sua sponte was improper because it was based on the business necessity defense that, Atkins claims, Interior failed to present evidence on or arguments for in its motion for summary judgment. Atkins argues that the district court failed to notify the parties of its decision to rely on that defense. Second, Atkins contends that Interior's evidence in support of its motion does not support granting summary judgment on the business necessity defense.
We review grants of summary judgment de novo. Kemp v. Holder, 610 F.3d 231, 234 (5th Cir.2010) (citing LeMaire v. La. Dep't of Transp. & Dev., 480 F.3d 383, 386 (5th Cir.2007)). Summary
"[D]istrict courts are widely acknowledged to possess the power to enter summary judgments sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence." Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). We review for harmless error a district court's improper entry of summary judgment sua sponte without notice. O'Hara v. Gen. Motors Corp., 508 F.3d 753, 764 (5th Cir. 2007); see also Washington v. Resolution Trust Co., 68 F.3d 935 (5th Cir.1995). A district court's grant of summary judgment sua sponte is "considered harmless if the nonmovant has no additional evidence or if all of the nonmovant's additional evidence is reviewed by the appellate court and none of the evidence presents a genuine issue of material fact." Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 28 F.3d 1388, 1398 (5th Cir.1994) (emphasis omitted). Consequently, even if the district court wrongly granted summary judgment to Interior— that is, without notice on a basis not argued by Interior—such error may be harmless if the record is adequately developed to support a summary judgment decision.
We first address Atkins's contention that the district court wrongly granted summary judgment sua sponte to Interior on the basis of the business necessity defense.
Atkins's basic argument against the district court's grant of summary judgment sua sponte is that Interior never argued the business necessity defense in its initial briefing in support of summary judgment. Rather, Atkins contends, Interior argued that Atkins's inability to meet the NPS's medical standards was a legitimate, nondiscriminatory reason for his dismissal under the burden-shifting standard of McDonnell Douglas. As Atkins argued in his response to Interior's motion for summary judgment, when "the evidence establishes that an employer openly discriminates against an individual it is not necessary to apply the mechanical formula of McDonnell Douglas to establish an inference of discrimination." Rizzo, 84 F.3d at 762 (quoting Moore v. U.S.D.A., 55 F.3d 991, 995 (5th Cir.1995)); see also Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985) ("[T]he McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination.").
Atkins's argument is unavailing. First, while Interior recognizes on appeal that it failed to raise the affirmative defense of business necessity in its opening brief, Atkins himself raised the business necessity defense in his summary judgment response brief:
In that brief, Atkins further explained that "Interior ha[d] not presented and argued any evidence relevant to the . . . issues of job relatedness and business necessity." Atkins went on to discuss the business necessity defense for several pages. He concluded that if "NPS chooses to defend this case on the basis of business necessity it has the burden of proceeding with evidence,
Moreover, Interior made repeated reference to facts relevant to the business necessity defense in its opening brief. For example, Interior explained that NPS's "legitimate, nondiscriminatory reason" for requiring medical standards and demoting Atkins "is the safety of the public and its workers. By its very nature, law enforcement work is unpredictable and sometimes dangerous. Any condition that can quickly render a law enforcement officer confused or unconscious puts that officer, fellow officers, and the public in danger." Interior further argued that because "[Atkins]'s uncontrolled diabetes [could] affect attention, concentration, thinking, judgment, decision making, reaction time, hand-eye coordination, cause confusion, irritability, and rapid changes in level of consciousness, he clearly posed a safety threat in a potentially arduous and dangerous law enforcement assignment." Thus, Interior asserted, NPS's demotion of Atkins was a "good faith effort[] to follow their medical standards that applied to all Park Rangers in law enforcement positions with arduous duties," and these standards were "implemented to protect employees, [Atkins]'s co-workers, the general public and [Atkins] himself." Such facts, as well as any other evidence in the record, could be considered by the district court when making its summary judgment determination. See United States v. Houston Pipeline Co., 37 F.3d 224, 227 (5th Cir.1994) ("[T]he district judge is not compelled to limit the basis for summary judgment to those facts listed in the motion for summary judgment.") (quoting Daniels v. Morris, 746 F.2d 271, 276 (5th Cir.1984)); see also Cripe, 261 F.3d at 886 n. 9 ("Although the [defendant in this ADA suit] has mislabeled its argument and identified the wrong standard, such error does not cause us to hold that it waived the `business necessity' defense. The [defendant] argued the relevant facts before the district court; that sufficiently put the plaintiffs and the court on notice of the actual issue the defendant should have specified.").
Given that Interior raised the business necessity defense in its reply brief to Atkins's summary judgment response brief, there may be concerns that Atkins did not have the opportunity to present either evidence or arguments in response to Interior's argument—that Interior would effectively have the final word on the business necessity defense. See Loughman, 1997 WL 759294, at *3-4 (reversing sua sponte grant of summary judgment on grounds that plaintiff failed to show an adverse employment action under the ADA when defendant argued in its summary judgment brief that plaintiff was not a "qualified individual with a disability" and raised the failure-of-proof argument only its reply brief).
In sum, Atkins raised the business necessity himself in his reply brief and later elaborated upon it in his sur-reply. Whether or not he had formal notice from the district court, Atkins was aware that the defense was at play and had a full opportunity to argue against it and present whatever relevant evidence he had. Notice from the district court that it intended to rely on the affirmative defenses would have made no difference to Atkins's briefing and so the lack of notice caused Atkins no harm. Moreover, a sua sponte grant of summary judgment without notice is proper "if all of the nonmovant's additional evidence is reviewed by the appellate court and none of the evidence presents a genuine issue of material fact," Leatherman, 28 F.3d at 1398. As we discuss in the next section, we also hold that Interior was able to establish the business necessity defense. We, therefore, hold that the district court did not err in considering the business necessity defense in spite of its lack of notice to the parties when granting summary judgment and any error it may have made was harmless.
We now arrive at the second issue, whether the district court's decision to grant summary judgment on the business necessity defense was correct. We hold that the district court's grant of summary judgment in favor of Interior on the basis of the business necessity defense was correct.
Section 12112(b)(6) of the ADA creates an affirmative defense for qualification standards shown to be "job-related for the position in question and [] consistent with business necessity." The ADA further explains this defense as follows:
42 U.S.C. § 12113(a); cf. Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 78, 122 S.Ct. 2045, 153 L.Ed.2d 82 (2002) (explaining that sections 12112(b)(6) and 12113 create an affirmative defense for standards shown to be job-related for the position in question and consistent with business necessity). "Once an employee shows that a qualification standard tends to screen out an individual with a disability, the employer shoulders the burden of proving that the challenged standard is job-related and consistent with business necessity." Rohr v. Salt River Project Agric. Imp. and Power Dist., 555 F.3d 850, 862 (9th Cir.2009); cf. Rizzo v. Children's World Learning Centers, Inc., 213 F.3d 209, 218 (5th Cir. 2000) ("[Under the ADA,] it is the employee's burden to prove that he is a qualified individual with a disability . . ., and it is the employer's burden to establish [an affirmative defense].").
To show a business necessity defense, a defendant must prove by a preponderance
E.E.O.C. v. Exxon Corp., 203 F.3d 871, 875 (5th Cir.2000).
The record before us strongly supports a finding of business necessity on the part of Interior. The NPS Standards are clearly job-related for a park ranger. Detterline v. Salazar, 320 Fed.Appx. 853, 858 (10th Cir.2009) (noting that "the NPS requirements are reasonable and appropriate because Law Enforcement Park Rangers are subject to physical demands that might not be applicable to other NPS employment positions"). The Standards "are designed to ensure that employees performing law enforcement are physically able to perform that duty and that their performance does not constitute a threat to the health and well being of themselves, their fellow employees, and park visitors." (emphasis added). Atkins himself acknowledged that he was responsible for a range of physically challenging and often isolated activities: "Patrolling the park by foot or vehicle[,] . . . ma[king] arrests, issu[ing] tickets, . . . handl[ing] all incidents given to [him,] . . . handl[ing] Emergency Medical Services [as a] First Responder on numerous incidents including numerous motor vehicle accidents[, and]. . . [working] as a wild land firefighter. . . ."
The specific Standard under which Atkins was transferred is congruent with NPS's legitimate concern with ensuring the safety of the public and its employees, focusing on diabetes's propensity to "produce metabolic disturbances affecting weight, stress adaptation, energy production, and a variety of symptoms or pathology such as elevated blood pressure, weakness, fatigue and collapse," all impediments to safely performing the work of a park ranger. It is clear, then, that the Standard's focus on the physical consequences of uncontrolled diabetes was "related to the specific skills and requirements" of being a park ranger and, therefore, job-related. Cripe, 261 F.3d at 890 (internal quotation marks and citation omitted).
The Standards also "substantially promote[d]" NPS's needs, "consistent with
NPS is not required to wait until after there is an emergency to take action protective of the public and its employees.
That Atkins did not experience an on-the-job incident is fortunate, but does not affect our conclusion. Other circuits, in the context of uncontrolled diabetes, have "recognized that where the [diabetic]'s medical condition is uncontrolled, of an unlimited duration, and capable of causing serious harm, injury may be considered likely to occur," even without evidence of prior incidents on the job. Cf. Darnell v. Thermafiber, Inc., 417 F.3d 657, 662 (7th Cir.2005) ("[Diabetic plaintiff] argues that the fact that he worked at the plant for 10 months without experiencing an episode makes it doubtful that an injury is likely to occur. However, an employee with a health condition who has experienced no on-the-job episodes can still pose a direct threat to workplace safety."). As we noted above, "the probability of the occurrence is discounted by the magnitude of its consequences." See Exxon Corp., 203 F.3d at 875. The consequences of Atkins experiencing hypoglycemia while carrying out a dangerous arrest, responding to a medical emergency, or fighting a fire are sufficiently large to justify NPS's revocation of his law enforcement condition on the basis of even a small risk of hypoglycemia.
NPS did not reach the conclusion that demoting Atkins was a business necessity haphazardly; it followed a uniform pattern application. The Standards rely on "[i]ndividualized assessments [to] be made on a case-by-case basis." This is the kind of analysis we have required in other cases: "`An individualized assessment of the effect of an impairment is particularly necessary when the impairment is one whose symptoms vary widely from person to person,'" Rodriguez v. ConAgra Grocery Pros. Co., 436 F.3d 468, 482 (5th Cir.2006) (quoting Toyota Motor Mfg. Ky. Inc. v. Williams, 534 U.S. 184, 199, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002)), and this assessment must be linked to the employee's "ability to perform the essential functions of [the job]." Kapche v. City of San Antonio, 304 F.3d 493, 499 (5th Cir.2002).
Notably, NPS has not sought simply to exclude diabetics from serving as park
In determining, after two prior assessments, that "Atkins failed to meet the medical requirements imposed by 5 C.F.R. Part 339 on Park Rangers" in his third review, NPS relied on a wide range of medical and other data, collected over the course of a year. The MRB specifically found that Atkins had been routinely experiencing hypoglycemic events during his work as a park ranger, including seven events in one month-long period and eleven events during another. Indeed, the physician on the MRB specifically remarked that Atkins's blood-glucose levels fluctuated wildly even during shorter periods of time. The record indicates that there was a legitimate concern that Atkins might be unable to even sense the approach of a hypoglycemic episode and therefore unable to prevent it. Moreover, the actual work of a park ranger in rural Mississippi, with its long hours, unpredictable schedule, and absence of suitable dietary options, left Atkins especially vulnerable to a hypoglycemic episode.
Atkins's personal efforts to control his diabetes offered little solace, either. "[Atkins's personal physician had] hoped to stabilize [his HA1C levels at] `the American Diabetes Association recommended goal for this value [of] less than or equal to 7.0[%] and th[at this] w[ould] be [her] personal goal for [Atkins's] level of control.'" But "most of [Atkins's HA1C] levels ha[d] consistently remained above 8.0[%] and as high as 10.2[%], demonstrat[ing] [that Atkins] ha[d] not controlled [his] diabetes."
Atkins's argument that a "uniform application" demands that "[Interior] needed to come forward with . . . evidence of symptoms marking the point at which it would ordinarily determine that metabolic dysfunction was likely to have adverse effects on safety and efficiency, and evidence that [Interior] applied that cut-off point" is unpersuasive. Atkins cites no statutory, regulatory, or case authority for this proposition. Interior was allowed to make a holistic determination, based on medical evidence substantial in amount and significance, that Atkins's fluctuating blood-glucose levels posed a significant risk to the public, other NPS employees, and Atkins himself. Indeed, Atkins received, and failed, three individualized assessments consistent with Interior's regulatory requirements.
Finally, no reasonable accommodation would cure the problems posed by a park ranger with "uncontrolled" diabetes like Atkins, at least not without inflicting "undue hardship" on NPS. See Bates, 511
In conclusion, then, the record supports the district court's conclusion that there was no genuine issue of material fact regarding the business necessity defense and its grant of summary judgment in favor of Interior was proper.
For the foregoing reasons, we AFFIRM the district court's grant of summary judgment in favor of the Department of the Interior. All pending motions are DENIED.
5 C.F.R. § 339.104(e)-(g).
5 C.F.R. § 339.104(g).
42 U.S.C. § 12111(9).
