Eileen Felix sued her former employer, the Wisconsin Department of Transportation, under the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701
et seq.,
contending that she was discharged solely because of an anxiety disorder and related disabilities. The district court entered summary judgment against Felix, reasoning that the undisputed facts demonstrated that she was discharged not solely because of her disabilities but rather based on workplace behavior that indicated to her employer that she posed a safety risk to herself and others.
Felix v. Wis. Dep’t of Transp.,
I.
Eileen Felix suffers from a variety of mental health disabilities, including post-traumatic stress disorder (“PTSD”), major depressive disorder, anxiety, obsessive compulsive disorder, and a medical phobia. For ease of reference, and because her PTSD and anxiety disability appear to be the conditions most relevant to the facts of this case, we will refer to her disabilities collectively as an anxiety disorder. She manages the symptoms of her disorder by taking prescribed medication and attending counseling and therapy sessions.
Felix was employed by the Wisconsin Department of Transportation (‘WisDOT”) from 1998 to 2013 in the Division of Motor Vehicles (“DMV”) customer service facility in Appleton, Wisconsin. At the time of her discharge in 2013, she held the position of DMV Field Agent Examiner — Advanced. Her duties included administering road tests to new drivers applying for licenses (approximately 20 per week) and performing a variety of duties behind the counter at the DMV office, including processing paperwork for vehicle and driver’s licenses and other DMV documentation and collecting the fees associated with these transactions. .She was regarded as a good employee overall: “she was punctual, reliable, friendly with customers, and patient with new drivers.” R. 26 at 4. She excelled in administering road tests.
The one area in which Felix tended not to meet expectations was in financial accountability. She would occasionally collect the wrong fee amount from a customer or key in the wrong amount in recording a transaction, accept an unsigned or undated check, or make an error in tallying customer payments that would result in discrepancies between her record-keeping and the amount actually present in her cash register at the close of business. Prior to 2011, her performance in this area was rated unsatisfactory in seven annual reviews, but her performance overall was nonetheless deemed satisfactory. In 2011, however, a rule change precluded an overall rating of satisfactory if the employee did not meet expectations in certain specified areas, including financial accountability. Because WisDOT determined that Felix did not meet financial accountability performance standards in 2011, she was given an overall evaluation of unsatisfactory. Felix was placed on probation from April through September 2012 on this basis, and she' received an unsatisfactory evaluation at the end of that period when her difficulties
Prior to April 18, Felix had experienced a number of panic attacks at work, but typically not in front of others and not in the public areas of the office. One exception was an attack that occurred on June 19, 2012, after a supervisor informed her that her cash drawer was missing ten dollars and a check. She was noticeably upset, and reported to a supervisor that she was having difficulty breathing and holding back tears and needed to leave work. She was then absent from work for the remainder of the week. It was at that time that she first apprised her employer that she suffered from an anxiety-related disorder. But in general, if Felix felt an attack coming on, she would inform her supervisor that she needed to retreat to the restroom for 15 minutes and do some breathing exercises, after which she could return to her station and continue working.
Felix had also explored the possibility of a transfer to another WisDOT facility. She requested a transfer to the Eau Claire DMV facility in or around June 2012. But because she was subject to a performance improvement plan due to her unsatisfactory performance, she was deemed ineligible for a transfer at that time. She later inquired about the possibility of a medical transfer as an accommodation to her disability, but according to WisDOT, she never followed through on the inquiry by completing and submitting the appropriate paperwork.
On the morning of April 18, 2013, a coworker known by the nickname “Ace” came into Felix’s work area at the DMV to look through some reference materials that were stored on a shelf. (Felix and Ace were at one time on friendly terms, but they had fallen out several years earlier. Felix had filed an incident report early in 2012 contending that Ace had intentionally rammed her with her shoulder. WisDOT investigated the report but had been unable to substantiate Felix’s allegations.) Ace bent over while looking through the reference materials, and when she straightened up at the conclusion of her search, static electricity caused strands of her long hair to cling to Felix’s person. As Ace left the area, Felix felt a panic attack coming on. She went to her supervisor, Cliff Ehlert, and told him that she needed to visit the restroom in order to calm down. Ehlert told her to take all the time she needed.
About 30 minutes later, Ehlert heard muffled screaming coming from the public lobby of the office. As he was rising from his desk to investigate, an employee told him that Felix had fallen down. When Eh-lert arrived in the lobby area, he saw Felix on the floor behind one of the work counters. She was lying on her side, clutching her cell phone, and crying out. Ehlert noticed that she had marks, scratches, and cuts on her right wrist, some of which were bleeding slightly. As Felix struggled to speak through her cries, Ehlert could only make out some of what she was saying. He would later recall her saying that “[y]ou all hate me ... they all hate you ... everybody hates you” and “[t]hey think you’re crazy ... you all think I’m
Emergency personnel were summoned to the DMV by an employee’s 9-1-1 call. A paramedic and a co-worker eventually succeeded in calming Felix down and moving her to a break room. She was ultimately transported to the hospital. Felix’s coworkers were shaken and concerned by the incident. Ehlert subsequently brought in a counselor to meet with staff members.
On the following day, in response to an email inquiry from regional manager Don Genin, Sarver indicated that Felix would have to undergo an independent medical examination (“IME”) in order to determine whether she could return to work. Sarver wanted the IME to consider both her own safety and the safety of others in the workplace. Ehlert, as Felix’s supervisor, was concerned about the fact that Felix’s road-test responsibilities regularly placed her alone in automobiles with 16-year-old drivers seeking their first licenses. He wanted to be sure that Felix would not have another panic attack during one of these tests. Sarver thus notified Felix by letter on April 25, 2013, that she would be required to participate in a fitness-for-duty evaluation as a result of the events of April 18, and that she would not be able to return to work until this evaluation had been conducted and the results reviewed by management personnel. 1 At no time between the April 18th episode and Felix’s subsequent discharge did WisDOT permit Felix to return to work.
Meanwhile, on April 19, Ehlert and Ge-nin signed an evaluation officially deeming Felix’s performance during the preceding three-month performance improvement period to be unsatisfactory. They were aware, obviously, that Felix was out of the office, but their evaluation was due to human resources and they did not know when Felix would return. In view of the negative rating, Felix thereafter would be subject to a final performance improvement plan if and when she returned to work.
Ehlert, in the meantime, filled out a Family & Medical Leave Act (“FMLA”) leave request on Felix’s behalf several days after the incident. After speaking with Felix about the request, he submitted the form on April 24. Felix’s daughter subsequently delivered a notice from Dr. Michael Panzer, a physician who had seen Felix in the emergency room following the April 18th episode, indicating that Felix would be “unable to work for medical reasons” until she saw her doctor on May 22. R. 25 Ex. A.
WisDOT designated Dr. Daniel Bur-bach, an independent medical examiner, to
On June 2, WisDOT received Burbach’s IME. Burbach concluded that “Ms. Felix remains at increased risk for potentially violent behavior toward self and others within the workplace.” Ex. 1001 DOJ 493. (emphasis in original). He added that on the basis of his evaluation,
I would predict future episodes of crying, complaining, excuse making, blaming others, isolation/estrangement, resistance to supervisory efforts, retaliatory verbal threats, purposeful provocation/antagonism of others, angry and irrational outbursts (e.g. shouting, screaming, slamming door/drawers, breaking items), physical altercations with coworkers (e.g., shoving, elbowing, shouldering, slapping), self-inflicted injuries, suicidal threats and gestures (e.g., vague suicidal comments, non-lethal self-cutting or pill ingestion), and true suicidal efforts.
Ex. 1001 DOJ 494. Burbach opined that “Ms. Felix is unable to safely and effectively resume her position at the Appleton DMV Service Center.” Ex. 1001 DOJ 496. “Less clear,” he added, “is whether she would be able to do so at another DMV Service Center subsequent to additional psychiatric treatment.” Ex. 1001 DOJ 496. In the exercise of his professional judgment, Burbach “would not recommend that Ms. Felix be permitted by the Wisconsin DOT to continue in her current position at the Appleton DMV Service Center.” Ex. 1001 DOJ 497 (emphasis in original). Bur-bach noted that his opinions were' not based on Felix’s current course of treatment.
On June 19, Sarver provided Felix with a copy of Burbach’s report along with a letter inviting her to submit any other information that Felix believed would be relevant to assessing her status with Wis-DOT. Sarver noted in the letter that Wis-DOT was considering the possibility of discharging her. Separately, English had been working with Felix since May to gather additional documentation required as support for her ongoing FMLA leave. Felix’s psychiatrist, Dr. Beld, had submitted an incomplete form to WisDOT on May 28. English followed up with Felix on June 6 to advise her that WisDOT required complete documentation by June 17. Despite a number of reminders, Felix did not submit the requested documents by that deadline. English received a completed form from Dr. Beld on June 19
English, believing that she needed additional information from Beld, followed up with him directly. At that time, English learned that Beld lives in Utah and sees his patients, including Felix, by video conference. Beld spoke with English on June 25. He informed English that he was aware of the April 18th episode and that Felix had undergone a fitness-for-duty evaluation, but he told English he had not spoken with Burbaeh and declined to see a copy of Burbach’s report. In an apparent reference to the possibility of a transfer, English advised Beld that Felix was subject to a “final improvement plan” and would not be changing work locations. Beld stated that Felix could safely return to work and was capable of resuming her duties at the Appleton DMV facility. According to Beld, English voiced disagreement with his assessment that Felix posed no “risk” to herself or others. Beld inferred from her tone and attitude that English was simply assuming that because Felix had posed a risk at one time she must still be a risk now, and he told her that, in his view, she was wrong to make this assumption. Beld would later aver that English’s remarks and attitude betrayed “a shocking level of stigmatization against [Felix] based on her mental illness.” R. 33 at 5 ¶ 22 & Ex. Felix. 35.
WisDOT determined that Felix was unfit for continued employment and terminated her on that basis. It considered the information supplied by Felix’s medical providers, including Beld, but concluded in light of Burbach’s independent medical assessment that she could not safely perform her duties at the Appleton DMV office. It considered her ineligible for transfer to another office because, in view of her persistent failure to meet expectations as to financial accountability, she was subject to a final performance improvement plan. Felix had been on FMLA leave since the April 18th incident and would exhaust all of her available state and federal leave time by July 12. On June 26, WisDOT
Felix filed suit against WisDOT pursuant to the Rehabilitation Act and the FMLA, 29 U.S.C. § 2601 et seq. She subsequently stipulated to a dismissal of one of her two FMLA claims and she does not challenge the resolution. of the other FMLA claim on appeal.
The district court granted summary judgment to WisDOT on Felix’s claim that she was discharged in violation of the Rehabilitation Act.
4
It found that the undisputed facts demonstrated that Felix’s termination was based not solely on her disability but rather on her behavior, the disruption it caused in the workplace, and the danger it posed to herself and others.
Felix,
Hysterical screaming and suicidal behavior by an employee in front of coworkers and members of the public is simply not something an employer generally has to tolerate or accommodate .... Absent a disability, an employer would be entirely justified in terminating an employee who engaged in such behavior immediately. Here, because of the perceived mental health component, the DOT required Felix to undergo a fitness for duty evaluation before she would be allowed to return. Upon reading the resulting report and considering the submissions by Felix’s doctors, the DOT decided to terminate her employment.
Id.
at 954. In the wake of the April 18th episode, the district court reasoned, Wis-DOT had ample cause to be concerned not only for Felix’s own safety, but for the safety of her co-workers and members of the general public, including the new drivers to whom she administered road tests. Dr. Burbach’s report concluded that Felix remained at risk for potentially violent behavior toward herself and others, and the Department was entitled to rely on Dr. Burbach in discharging Felix, notwithstanding the contrary opinion of Felix’s own therapists.
Id.
at 955. Ultimately, “Felix has offered no evidence suggesting that
II.
Felix argues there are disputes of material fact that preclude summary judgment, including disputes as to whether she was discharged solely because of her disabilities and whether, after the April 18th episode, she remained a qualified individual with a disability who was able to perform the essential functions of her job and did not present a direct threat to the safety of herself and others in the workplace. She contends that the court improperly weighed the evidence in entering summary judgment against her, and additionally that it did not employ the correct legal analysis in assessing the record.
Section 504 of the Rehabilitation Act, as amended, protects a “qualified individual with a disability” from discrimination “solely by reason of’ her disability in any program receiving federal assistance. 29 U.S.C. § 794(a). To succeed on a claim of employment discrimination under this statute, a plaintiff must prove that: (1) she is disabled within the meaning of the statute; (2) that she was otherwise qualified for the job in question; (3) that she was discharged or the subject of other adverse action solely because of her disability; and (4) the employment program of which her job was a part received federal financial assistance.
See Novak v. Bd. of Trustees of S. Ill. Univ.,
As they were below, the parties are at odds .as to the particular legal criteria and burdens that govern their dispute. We have just noted that Felix bears the burden under the Rehabilitation Act to show that, notwithstanding her disabilities, she was otherwise qualified to perform the essential functions of her job. WisDOT contends that in view of our decision in
Palmer,
Felix cannot make that showing.
Palmer
held that when an employee engages in behavior that is unacceptable in the workplace (there, making phone calls to her office threatening her supervisor with bodily harm), the fact that the behavior is precipitated by her mental illness “does not present an issue under the Americans with Disabilities Act”; the behavior itself disqualifies her from continued employment and justifies her discharge.
The Act does not require an employer to retain a potentially violent employee. Such a requirement would place the employer on a razor’s edge — in jeopardy of violating the Act if it fired such an employee, yet in jeopardy of being deemed negligent if it retained him and he hurt someone. The Act protects only “qualified” employees, that is, employees qualified to do the job for which they were hired; and threatening other employees disqualifies one.
Id.
(collecting cases);
see also Pemice v. City of Chicago,
Rather than moving immediately to fire Felix after April 18, however, WisDOT required that she undergo a professional assessment to determine whether she continued to pose a risk to herself and/or others in her workplace; and in Felix’s view, that takes this case out of the
Palmer
qualified-to-work framework and into the direct-threat framework. The direct-threat defense is set forth in the ADA and is among the legal principles that are incorporated into the Rehabilitation Act.
See Branham,
(1) The duration of the risk posed by the employee’s condition;
(2) The nature and severity of the potential harm that might result;
(3) The likelihood that the potential harm will occur; and
(4) The imminence of the potential harm.
Id.
Because the direct-threat defense is an affirmative defense, it is the employer that bears the burden of proving the defense.
The district court, however, did not evaluate WisDOT’s summary judgment motion through the lens of the direct-threat framework, and Felix contends that this amounted to legal error. She reasons that whenever an employer has decided to have an employee professionally evaluated to assess what risk, if any, she poses to herself or to her coworkers, the employer is necessarily focusing on the future rather than on anything the employee may have done in the past. In Felix’s view, any forward-looking assessment of the risk posed by continued employment of the plaintiff necessarily invokes the direct-threat framework. She points out that WisDOT’s own memorandum in support of its request for summary judgment spoke of the risk that WisDOT believed she posed to herself and others, and her counsel surmised from those references that WisDOT necessarily was presenting a direct-threat defense. Not until its reply brief, after Felix had emphasized the substantial burden that the direct-threat defense imposes on the employer, did WisDOT disavow that defense and insist that it was relying on PalmePs qualified-to-work framework instead. This was too late in the day for a switch in legal theory, Felix argues, and effectively deprived her of the opportunity to respond to WisDOT’s belated invocation of Palmer.
We will give Felix this: There necessarily is some logical overlap between the direct-threat framework and Palmer, and by deciding to assess what, if any, danger Felix posed in the wake of the April 18th incident, WisDOT was, in part, making the sort of forward-looking assessment that underlies a direct-threat affirmative defense. Even so, we do not agree with Felix that WisDOT was pursuing such a defense or that the district court erred in not applying the direct-threat framework to WisDOT’s motion for summary judgment.
WisDOT’s motion itself did not invoke the direct-threat framework. Its opening memorandum did not cite the defense by name or by reference to its statutory and regulatory provisions. By contrast, the memorandum did reference Palmer in support of an argument that after the April 18th incident, Felix was no longer a qualified person with a disability for purposes of her Rehabilitation Act claim. R. 26 at 16-19. Felix nonetheless infers that WisDOT was making a direct-threat type of argument because the memorandum repeatedly referred to Burbach’s IME and, in light of the results of that IME, argued that Felix’s superiors could legitimately conclude that “Felix was a safety risk to herself and others in the workplace.” R. 26 at 17.
The fact that WisDOT chose to have Felix evaluated for ongoing risk rather than making its discharge decision solely on the basis of the April 18th incident did not inevitably place this case within the direct-threat framework. It should go without saying that when a disruptive incident like the April 18th episode has occurred, an employer may seek a professional assessment of the likelihood of an employee’s unacceptable behavior recurring before it decides, within the
Palmer
framework, whether the employee is qualified for continued employment. It may be possible, for
As a number of courts have recognized, when an employee’s disability has actually resulted in conduct that is intolerable in the workplace, the direct-threat defense does not apply: the case is no longer about potential but rather actual dangers that an employee’s disability poses to herself and others.
See Mayo,
Under these circumstances, no “individualized assessment,” see 29 C.F.R. § 1630.2(r) is necessary, because the employee is not being terminated for posing a “direct threat” as defined by the ADA, but rather for making a threat — a legitimate, non-discriminatory reason for termination — in accordance with the standard McDonnell Douglasanalysis. Moreover, rules established by the EEOC make clear that the “poses a direct threat defense” is meant to be applied in cases alleging discriminatory application of qualification standards as opposed to cases in which a plaintiff alleges “disparate treatment,” which may be “justified by a legitimate, nondiscriminatory reason.” 29 C.F.R. § 1630.15(a), (b). Here, Sista does not claim that [the employer’s] policies against employee misconduct , and threats in the workplace constitute “qualification standards, tests, or criteria” that “screen out or tend to screen out” individuals with disabilities; rather, the gravamen of Sista’s claim is that he suffered disparate treatment at the hands of [his employer] when he was fired for being disabled. Accordingly, the “poses a direct threat” defense has no applicability in this case.
Our decision in
Bodenstab v. Cnty. of Cook,
The same rationale arguably might apply here, given that WisDOT specifically cited the events of April 18 as one of its reasons for discharging Felix, but we need not go that far. We may regard Felix’s behavior on April 18 and the IME’s conclusion that she continued to pose a risk to herself and others as inextricably intertwined rather than as wholly independent reasons for WisDOT’s decision to discharge Felix. For the reasons we have already discussed, WisDOT may still argue that its decision to discharge Felix was warranted under Palmer. And for the reasons that follow, there is no dispute of material fact that WisDOT, consistent with Palmer, regarded Felix as unfit for continued employment after April 18.
WisDOT’s actions following the April 18th incident are consistent with a genuine concern about the danger that Felix’s con
The discharge letter itself cites the April 18th incident along with the IME as grounds for the termination decision. In essence, the letter reflects WisDOT’s conclusion that, in view of the IME, WisDOT could not be sure that behavior akin to what had occurred on April 18 would not repeat in the future.
Although Felix does not concede that the reasons articulated by WisDOT on their face constitute a legitimate basis for her discharge under Palmer, we are satisfied that they do. Felix’s behavior on April 18 suggested that she was a danger to herself: she had attempted to cut her wrists, although the cuts were shallow; she vocally bemoaned the dullness of the knife she had used; and she repeatedly said that she wanted to die. She made these and other remarks in a hysterical state, literally kicking her legs and crying out, and she did so in a public area of the office. Emergency personnel were summoned.
Felix submitted a statement from her psychiatrist indicating that she was fit to return to work as of the date she was discharged; but we do not regard this as sufficient to establish a dispute of fact as to the legitimacy or sincerity of WisDOT’s stated reasons for terminating her. Dr. Beld had given conflicting statements as to when Felix could return to work, and beyond asking that Felix be allowed to return to work on July 15, 2013, on a full-time schedule, Beld offered no more than an abbreviated summary of Felix’s condition and course of treatment and no real explanation for his conclusion that she was able to return to work, especially given his acknowledgment that her work environment tended to worsen her anxiety-and depression-related conditions. His comments on the form submitted in support of Felix’s FMLA leave acknowledged that Felix’s current work environment aggravated her condition. Likewise, the other medical records Felix submitted to her employer offered no assessment of her current status and no analysis of why, notwithstanding what had occurred on April 18, Felix could resume her duties. Finally, whatever shortcomings there may have been in Burbach’s IME, Felix has cited no evidence suggesting that WisDOT could not and did not credit his opinion and conclude that Felix remained in danger of repeating the type of behavior that she had exhibited on April 18.
6
The question, after all, is not whether Dr. Burbach’s opinion was correct or whether WisDOT was right or wrong to accept his assessment, but whether it did, in fact, rely on his assessment and honestly conclude that
Felix argues that several facts betray a bias against persons with anxiety disorders, and that a factfinder could thus conclude that WisDOT’s decision to fire her was based solely on her disabilities. She argues, for example, that notes
from
a June 25 meeting between English and Maya Rudd, WisDOT’s affirmative action/equal employment opportunity and diversity program officer, reflecting a decision to proceed with a “medical separation ... [bjased on IME comments and recommendations,” necessarily indicate that Wis-DOT was discharging her based on her disability rather than her conduct. In Felix’s view, “Characterizing an employee’s termination as a ‘medical separation’ is the definition of terminating an employee because of her disabilities.” Felix Reply Br. 3. But “medical” is not a term inherently suggestive of bias or disapproval. And given that
Palmer
and similar cases recognize that an employer may, consistent with the ADA and the Rehabilitation Act, terminate an employee for inappropriate behavior even when that behavior is precipitated by the employee’s disability,
see Brumfield,
III.
For all of the reasons we have discussed, we AFFIRM the district court’s decision to enter summary judgment against Felix and in favor of WisDOT.
Notes
. The letter cited Wis. Stat. § 230.37(2) as authority for the IME. That statute in relevant part provides that a state employer may demote, reassign, reschedule, or (as a last resort) discharge an employee who becomes physically or mentally incapable of efficiently and effectively performing the duties of his position by reason of a disability; the statute also authorizes the employer to require an employee to submit to a medical or physical examination in order to determine his fitness to continue in service.
. Burbach was not employed by or affiliated with WisDOT. He was selected by or recommended to WisDOT by PsyBar, a private third-party vendor.
. Beld would later note in his declaration that the form reflected his findings that Felix was suffering from depression and anxiety; that her depression was negatively affecting her mood, energy, motivation, and functioning; that her anxiety was negatively affecting her stress tolerance; and that Felix would continue with follow-up visits with Beld and with medical management as part of her treatment plan.
. Felix also argued below, unsuccessfully, that WisDOT had failed to accommodate her disabilities by not transferring her to a different office. Felix has not challenged the district court’s disposition of that claim.
. The direct-threat defense derives from the Supreme Court's decision in
Sch. Bd. of Nassau Cnty., Fla. v. Arline,
. Burbach’s observation that WisDOT might choose to have Felix undergo a second fitness-for-duty evaluation at a later date does not alter the calculus. Burbach simply noted that as an option, without qualifying his opinion that Felix was not fit for duty as of the date of his evaluation.
. The same may be said of WisDOT s reliance upon Wis. Stat. § 230.37(2) in ordering Felix to participate in a fitness-for-duty evaluation and in concluding that, in light of that evaluation, she could not safely, efficiently, and effectively resume her duties. See n. 2, supra.