Action for Employment Discrimination Based on Obesity and Diabetes - Employment Law - U.S. Tenth Circuit
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Action for Employment Discrimination Based on Obesity and Diabetes

Wilkerson v. Shinseki, No. 09-8027, involved an action claiming that plaintiff's reassignment discriminated against him based on his obesity and diabetes, and that age discrimination played a role in his reassignment in violation of the Age Discrimination in Employment Act.  The court of appeals affirmed summary judgment for defendant, on the grounds that 1) plaintiff was not otherwise qualified to hold the position as required by the Rehabilitation Act; 2) defendant had a non-discriminatory reason for removing plaintiff that was not pretextual; and 3) plaintiff did not allege that the accessing of his health records was intentional misconduct, as required by the Privacy Act.

As the court wrote:  "Floyd Wilkerson worked on a temporary basis at the Cheyenne Veteran Affairs Medical Center as a boiler plant operator. Following a failed physical examination, the human resources manager notified him that he was reassigned to a lower paid position.  Mr. Wilkerson brought suit against the Secretary of the U.S. Department of Veterans Affairs (the "VA"), claiming that this reassignment discriminated against him based on his obesity and diabetes, in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq., and that age discrimination played a role in his reassignment in violation of the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. §§ 626 and 633a(a). Mr. Wilkerson later tried to amend his complaint to allege that his health records were illegally accessed in violation of the Privacy Act, 5 U.S.C. § 552a. The district court granted summary judgment for the VA on all counts and denied Mr. Wilkerson's motion for leave to amend the complaint to allege the Privacy Act claim."

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