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McNelis v. Pennsylvania Power & Light Co.

United States Court of Appeals, Third Circuit

August 15, 2017

DARYLE RAYMOND MCNELIS, Appellant
v.
PENNSYLVANIA POWER & LIGHT COMPANY

          Submitted Under Third Circuit L.A.R. 34.1(a) May 26, 2017

         On 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

          Ralph E. Lamar, IV, Marc E. Weinstein Counsel for Appellant

          Darren M. Creasy A. James Johnston Post & Schell Counsel for Defendant-Appellee

          Before: HARDIMAN, ROTH, and FISHER, Circuit Judges.

          OPINION

          HARDIMAN, Circuit Judge.

         Daryle McNelis appeals the District Court's summary judgment in favor of his former employer, PPL Susquehanna, LLC.[1] 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 District Court.

         I

         This 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.

         A

         As the 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.

         First, 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).

         PPL 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. § ...


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