Investigative & Security Professionals for Legislative Action

Third Circuit Decision of Note: AR-15, Authorized Deadly Force, ADA & NRC

21 Aug 2017 6:06 PM | Anonymous member (Administrator)

Security professionals may wish to review a "precedential" August 15, 2017 opinion of the U.S. Court of Appeals for the Third Circuit, No. 16-3883 involving an armed security officer (often armed with AR-15 and authorized to use deadly force) in the matter cited below. The case involved the Americans with Disabilities Act (ADA) and regulations of the U.S. Nuclear Regulatory Commission (NRC).

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

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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

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

Before: HARDIMAN, ROTH, and FISHER, Circuit Judges. (Opinion Filed: August 15, 2017 by Circuit Judge Hardiman)

Daryle McNelis appealed the District Court’s summary judgment in favor of his former employer, PPL Susquehanna, LLC.  After this case was filed, McNelis’s former employer, misidentified in the caption as Pennsylvania Power & Light Company, was renamed Susquehanna Nuclear, LLC. He 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. They affirmed the judgment of the District Court.

This appeal required the Third Circuit to analyze the relationship between the Americans with Disabilities Act (ADA) and the regulations promulgated by the Nuclear Regulatory Commission (NRC). They reviewed the governing regulations and then turn to the facts of the case. As the operator of a nuclear power reactor, PPL was required to comply with regulations issued by the NRC, two of which were 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. § 73.56(f)(3). If during the reassessment an official believes the employee’s “trustworthiness or reliability is questionable,” the official must terminate the employee’s unrestricted access during the review period.

PPL hired Daryle McNelis as a Nuclear Security Officer in 2009. In that role, McNelis had unrestricted access to PPL’s plant and was responsible for, among other things, protecting its vital areas and preventing radiological sabotage. McNelis carried a firearm (often an AR-15) and was authorized to use deadly force. In April 2012, McNelis experienced personal and mental health problems. McNelis was paranoid about surveillance. He believed that various items in his home (such as his children’s toy cars) were covert listening devices and he told his wife he would kill whoever was following him.

McNelis also had problems with alcohol and his “use of alcohol [was] an issue of contention with his wife.” Finally, a close friend and co-worker of McNelis named Kris Keefer believed McNelis had become obsessed with bath salts—a synthetic drug that affects the central nervous system. McNelis had admitted to using bath salts in the past and coworkers suspected he was doing so again. In the midst of these troubles, McNelis’s wife moved herself and the children out of the family home. That same day, local police received an anonymous 911 call warning that McNelis may “come to the schools to get his children” and “may be under the influence and possibly armed.” The school district was locked down for two hours—but the police eventually determined that McNelis never intended to go to the schools.

Two days later, McNelis agreed to meet his wife at a psychiatric facility for treatment. The treating physician’s initial evaluation noted that McNelis suffered from “paranoid thoughts, . . . sleeplessness, [and] questionable auditory hallucinations.”  After a three day stay in the inpatient unit, McNelis was discharged with instructions to “[d]iscontinue or reduce the use of alcohol.”

During the events of April 2012, McNelis’s friend and co-worker Keefer became concerned by McNelis’s behavior. As required by NRC regulations and PPL policy, Keefer reported his concerns to a supervisor, explaining that McNelis was “emotionally erratic[,] . . . not sleeping well and having illusions” about surveillance.  Keefer also opined that McNelis’s behavior warranted “immediate attention.”

Pursuant to NRC regulations, McNelis’s unrestricted access was “placed on hold” pending medical clearance.  McNelis then met with Dr. David Thompson—a third-party psychologist who performs fitness for duty examinations at approximately 20 nuclear facilities nationwide, including PPL’s plant. Dr. Thompson interviewed McNelis and performed testing required by PPL policy and NRC regulations. See 10 C.F.R. §§ 26.187, 73.56(e)(6). He then issued two reports, the second of which—a Substance Abuse Expert Determination of Fitness report—stated that “McNelis is considered not fit for duty pending receipt and review of a report from the facility where he receives an alcohol assessment and possibly treatment.”

Upon learning that McNelis had been deemed not fit for duty by Dr. Thompson, PPL revoked McNelis’s unescorted access authorization and terminated his employment. After his internal appeal was denied, McNelis filed this suit. The District Court granted PPL summary judgment and McNelis timely appealed.

The full decision is at: http://www2.ca3.uscourts.gov/opinarch/163883p.pdf

Bruce H. Hulme, CFE, BAI - ISPLA Director of Government Affairs

 

                                                         ISPLA

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