episode, and similar dangerous situations. Plaintiff contends that the likelihood of a thoroughly trained, experienced and well-motivated insulin-dependent diabetic having a severe hypoglycemic episode while on assignment in a situation that would thereby pose a danger to any co-workers, the diabetic, or any other person is almost negligible. Although defendants may be unduly alarmed as to the likelihood and frequency of such situations, the evidence is convincingly clear that special agents and investigative specialists have frequently been placed in situations where, if they were insulin-dependent diabetics, they would have been in real and substantial danger of a severe hypoglycemic occurrence because they would have been unable to timely test and/or correct a low blood sugar level.
It is abundantly clear that except during a severe hypoglycemic episode, an insulin-dependent diabetic is as physically and mentally capable of performing all of the functions of a special agent and an investigative specialist as any other similar person who does not have diabetes. The government does not contend to the contrary. During a severe hypoglycemic occurrence, however, such a person is incapacitated and cannot function either physically or mentally without assistance.
Plaintiff's counsel argues that the FBI must make reasonable accommodation for those insulin-dependent diabetics who would otherwise qualify for employment as special agents and investigative specialists. If medical science could predict reliably and accurately when and under what job circumstances an insulin-dependent diabetic would have a severe hypoglycemic occurrence (or more precisely when and under what job circumstances such person will not have a severe hypoglycemic occurrence), some accommodation might be reasonable and required. Testing and investigation of a person's medical history may lower the odds or risks of a severe hypoglycemic occurrence while on assignment in a situation that would pose a threat to the safety of co-workers, the diabetic or others, but no expert or other witness testified that the risk would be nonexistent, minimal or remote. All insulin-dependent diabetics are at risk of a disabling hypoglycemic occurrence and, because of the job requirements, those risks are substantially greater than in most job categories.
Plaintiff's counsel suggests that a reasonable accommodation would be to place insulin-dependent diabetics on permanent limited duty that would restrict them from assignments of the type that the government contends imposes unreasonable risks of harm. Plaintiff points out that there are special agents who are placed on temporary limited duty from time to time and that the number of potential insulin-dependent diabetics who would otherwise qualify for the job would be so few as to not disrupt the mission of the FBI or place an undue burden upon the agency.
The essential functions of a special agent and an investigative specialist require that certain assignments be hazardous, and they would be especially hazardous to a person who is insulin-dependent. There are no permanent limited duty assignments available to newly selected special agents, and there never have been. To force the FBI to create such a category, in consideration of congressional financial constraints, would seriously impede the basic function of the FBI. There are no limited duty positions available as an investigative specialist. Plaintiff's proposed accommodation would "impose an undue hardship on the operation of the program" and mission of the FBI. Where the accommodation imposes an undue hardship, such accommodation is not required under the Rehabilitation Act. Prewitt v. United States Postal Service, 662 F.2d 292, 310 (5th Cir. 1981); 29 C.F.R. § 1613.702(f).
An essential function of the job of special agent requires that such person be able to perform all functions and assignments. Special agents are, in a sense, "general practitioners" in the field of federal criminal investigations. They are subject to transfer and assignment throughout the United States at any time. They must be able to serve on any and all types of squads. Accommodation of the type proposed by plaintiff would require a "fundamental alteration" in the nature and description of the position of special agent and also of investigative specialist. Such is not a "reasonable accommodation" and is not required under the Rehabilitation Act. Southeastern Community College, 442 U.S. 397, 60 L. Ed. 2d 980, 99 S. Ct. 2361.
In School Board of Nassau County, the Supreme Court advised that in making findings "courts normally should defer to the reasonable medical judgments of public health officials." 480 U.S. at 288, 107 S. Ct. 1123, 55 U.S.L.W. at 4249. In a footnote to that passage, the Court left open the question of whether the Court should also defer to the reasonable medical judgments of private physicians on which an employer relies. Id. at n.18. Significantly, in this case neither party challenged the qualifications of the other party's expert witnesses. Because of the divergence of medical opinion expressed by the experts, obviously complete deference cannot logically be given to each expert. Only by assessing the relative merit and strength of the opinions can a proper determination be made in this case. Defendants' experts contend the risk of an individual having a severe hypoglycemic episode while on a duty assignment is unacceptably high. Plaintiff's expert, while acknowledging the ever-present risk, finds this risk acceptable if applications are accepted only from those insulin-dependent diabetics who, by history and testing, demonstrate a substantially lower risk than other insulin-dependent diabetics.
In my view, Congress' intent in enacting the Rehabilitation Act was not that employers must accept applicants for jobs where eminently qualified medical specialists are of the opinion that the job requirements pose a reasonably probable risk of harm to the applicant and others by reason of the applicant's "handicap," in this case being that of an insulin-dependent diabetic. Where, as here, qualified medical opinion is divided as to what is an acceptable degree of risk, a decision must be made. To some extent that depends upon how one must weigh safety concerns against the laudable Congressional purpose of providing all handicapped persons an equal opportunity to compete in the job market. The evidence establishes that although the likelihood of a special agent or investigative specialist having a severe hypoglycemic occurrence while on a duty assignment may be small, such an occurrence presents the very real danger of serious harm to the special agent or investigative specialist, co-workers, and uninvolved third parties, as well as potential serious harm and disruption to the operation of the FBI in carrying out its proper governmental functions; based on this evidence, I conclude that the preclusion of insulin-dependent diabetics from employment as special agents and investigative specialist does not violate the Rehabilitation Act.
At some future time, medical science may be able to predict accurately on a case-by-case basis those insulin-dependent diabetics who present only a very slight or de minimis risk of having a severe hypoglycemic occurrence while on an assignment as a special agent or investigative specialist. Great strides have been made in recent years in the control of diabetes. In recognition of medical advances in controlling diabetes, the FBI recently modified its policy of excluding all persons who had been diagnosed as diabetic, and limited the exclusion to only those who were insulin-dependent. This was based on sound medical advice. It may be that in the future, as testing and treating techniques improve, exclusions on a case-by-case basis will be the only permissible procedure; or, hopefully, methods of control may become so exact that insulin-dependent diabetics will present no risk of ever having a severe hypoglycemic episode, in which case such persons would be clearly qualified to apply. Given the present state of medical knowledge, I conclude that excluding all insulin-dependent diabetics from applying for positions as special agents and investigative specialists does not violate either the letter or the spirit of the Rehabilitation Act.
Plaintiff also makes a due process claim that the disqualification of all insulin-dependent diabetics creates an invalid irrebuttable presumption that all insulin-dependent diabetics are incapable of performing the essential functions of the jobs at issue. Although the evidence suggests that some unidentifiable insulin-dependent diabetics may be able to perform the essential functions required, the undisputed medical testimony is that all insulin-dependent diabetics present a risk of not being able to perform all of the essential functions. There is no known reliable way to segregate those who can and those who cannot perform all of the essential functions. Because all of the excluded persons, i.e., all insulin-dependent diabetics, present an unacceptable risk of being incapable of performing all of the essential functions based on the totality of the evidence, the "irrebuttable presumption" rule of Cleveland Board of Education of LaFleur, 414 U.S. 632, 647-48, 39 L. Ed. 2d 52, 94 S. Ct. 791 (1974), and Gurmankin v. Costanzo, 556 F.2d 184 (3d Cir. 1977), is inapplicable. There is no due process or other fifth amendment violation.
To the extent that the foregoing "Discussion" portion of this opinion contains additional findings of fact and/or conclusions of law not otherwise included under the "Findings of Fact" and "Conclusions of Law" portions of this opinion, the same shall be deemed as being so included.