Submitted Under Third Circuit L.A.R. 34.1(a) May 26, 2017
Appeal from the United States District Court for the Middle
District of Pennsylvania (M.D. Pa. No. 4-13-cv-02612)
District Judge: Honorable Matthew W. Brann
E. Lamar, IV, Marc E. Weinstein Counsel for Appellant
M. Creasy A. James Johnston Post & Schell Counsel for
Before: HARDIMAN, ROTH, and FISHER, Circuit Judges.
HARDIMAN, Circuit Judge.
McNelis appeals the District Court's summary judgment in
favor of his former employer, PPL Susquehanna,
McNelis worked at PPL's nuclear power plant as an armed
security officer from 2009 until he was fired in 2012 after
failing a fitness for duty examination. McNelis sued,
claiming his termination violated the Americans with
Disabilities Act. The District Court disagreed, holding that
McNelis was fired because he lacked a legally mandated job
requirement, namely, the unrestricted security access
authorization that the United States Nuclear Regulatory
Commission requires of all armed security guards. For the
reasons that follow, we will affirm the judgment of the
appeal requires us to analyze the relationship between the
Americans with Disabilities Act (ADA) and the regulations
promulgated by the Nuclear Regulatory Commission (NRC). We
begin with the governing regulations and then turn to the
facts of the case.
operator of a nuclear power reactor, PPL was required to
comply with regulations issued by the NRC, two of which are
seminal to this appeal.
PPL was required to implement a "fitness for duty
program" to ensure that "individuals are not under
the influence of any substance, legal or illegal, or mentally
or physically impaired from any cause, which in any way
adversely affects their ability to safely and competently
perform their duties." 10 C.F.R. § 26.23(b). If an
employee's fitness is "questionable, " the
employer "shall take immediate action to prevent the
individual from" continuing to perform his duties. 10
C.F.R. § 26.77(b).
also was required to maintain an "access authorization
program" to monitor employees who had access to
sensitive areas of the plant. 10 C.F.R. § 73.56(a)-(b).
Under this program, nuclear power plants must "provide
high assurance" that employees "are trustworthy and
reliable, such that they do not constitute an unreasonable
risk to public health and safety or the common defense and
security." 10 C.F.R. § 73.56(c). Before an employee
is granted unrestricted access, he must undergo a
psychological assessment that evaluates "the possible
adverse impact of any noted psychological characteristics on
the individual's trustworthiness and reliability."
10 C.F.R. § 73.56(e). Once granted, unrestricted access
is subject to constant monitoring. Nuclear power plants must
institute a "behavioral observation program" to
identify aberrant behaviors. 10 C.F.R. § 73.56(f). All
employees are required to report suspicious behaviors, and
any report triggers a reassessment of that employee's
access. 10 C.F.R. § ...