*4
WISDOM,
Aрpellee Rizzo now asserts
Before
WIENER and
appeal
is frivolous and seeks
DENNIS,
Judges.
Circuit
Further,
against
appellant.
sanctions
WISDOM,
Judge:
Circuit
attorneys’
appeal,
Rizzo seeks
fees on
prevailing
to be the
should she be found
Learning
Children’s World
Center
party.
(CWLC)
daycare-provider
is a school and
a
young
for
children. Victoria Rizzo is
jury
affirm the
verdict and award.
We
who,
frivolous,
until
hearing-impaired
appeal
woman
the cir-
this
is not
We also find
arose,
subject
cumstances of this lawsuit
was an
and therefore not
to sanctions.
attorneys’
We further award
fees to the
In
Rizzo
of CWLC.
Ms.
$20,625.
appellee in the amount of
change
after a
left CWLC
substantial
duties,
shortly
there-
Facts
claim against
after filed
discrimination
hotly disputed.
CWLC under the Americans with Disabili-
of this case are
The facts
(ADA)
dispute
§
Act
This
to our reversal of sum-
seq.
ties
U.S.C.
12101 et
led
(5th Cir.1996).
1.
mary judgment appeal. issues of fact that needed genuine material at trial.
to be determined Jurisdiction Rizzo was an administrative aid Victoria jurisdiction The district court had of this Learning at the World Center. Children’s question litigation federal under Title I of im- hearing from a substantial She suffers the Americans with Act. Disabilities duties, pairment. Among other seq. 12101 et This court has U.S.C. regularly drove students to and from jurisdiction appeal arising a direct .over provided by in a van school CWLC. litigation. from such 1993, parent of one of CWLC’s students complained her child had unable been judgment Burden of get attention because of her as a matter of law disability. parent hearing This also voiced disability might pre- a concern that Rizzo’s appellant’s shall We address hearing choking vent her from child assignments together. first two of error of small while van full children. first contends district Shortly complaint, after appellant’s in denying court erred motion van driving removed from her duties. She law, judgment asserting as a matter *5 additionally a in suffered reduction work that failed Rizzo to meet her burden of hours, “split-shift” to work a was forced to proof. CWLC next contends that the dis up lost (working make those hours two trict court erred in denying the motion for shifts, early in morning, short one judgment a of in that as matter law CWLC afternoon), assigned other in the late was conclusively proved .posed that Rizzo a “di kitchen, to cook meals in the Center’s care, and rect threat” to the in children on several occasions worked fewer than affirmative defense to an allegation of dis necessary keep hours to her benefits crimination. never, fact, (though her were benefits assignments As these two of error inter- revoked). changes After these in her twine around the issue the burden of job work assignments, quit Rizzo at proof, together. we shall them address CWLC, ADA, and filed suit under the first, question is twofold: did Rizzo alleging discrimination due to her hearing pose a direct threat to the children in her disability. care; second, is it CWLC’s burden to threat, prove she was a or is it Rizzo’s that changes Rizzo contends in her prove burden to she was not? At first employment duties constituted a demotion glance both the caselaw from the different solely based on her disability. CWLC de- federal regulations circuits and the federal charge, nied this contending that appear themselves to be conflict. change in a part duties was natural of a daycare work environment. fur- CWLC Rizzo, plain- CWLC maintains that aas ther that necessary tiff, contends was prove must that she is “a qualified remove Rizzo from her van driving duties disability,” pursuant individual with a 12112(a). posed because she a § direct threat to her- U.S.C. also CWLC maintains self and the children in her All part parcel care. as proving she is a these fully litigated issues were before a disability, individual a Rizzo jury. jury That found had pose CWLC violated that must she does not a direct by the ADA discriminating against Rizzo safety threat to the health or of herself or disability; contention, based on her that such discrimi- In support others. of this malice; nation was done with and that points holding CWLC to a of the Eleventh ' Circuit, Rizzo was entitled to damages stating that “the retains $100,000 amount of past and future at all persuading times the burden of “safety concerning requirements a direct threat.”2 cases ... that he was not jury tend to screen an individ- the Eleventh Circuit relied screen out or out holding, In so Interpretive of the Guid- ual or a class of upon provision individu- 1630.2(r). This states: ance to 29 CFR als with disabilities.” qualifica- as a employer may require, “An In the instant the record reflects standard, pose an individual not tion Rizzo on what that CWLC demoted based health or a direct threat they perceived inability to be her to hear a (emphasis or оthers” add- himself/herself a van full of choking driving child while ed). “qualification As this standard” obvi- Upon this observation children. Court’s plaintiff of whether ously goes to the issue choking there is no evidence that a disability,” with a “qualified is a individual sound, child even makes a amend- CWLC apparently fall the burden of would position, contending ed its now that Rizzo’s plaintiff. on the true “direct threat” to the responds Rizzo Appellee lay inability distinguish children in her as the defendant bears spoken specific words and sounds. The proving “direct threat” as affirmative replete record is with evidence that Rizzo support position, In of this “luck,” defense. heard the word “death” as I, our own statement cites “chain,” “pain” In word as and so forth.5 defenses, affirmative the em “as with all words, insti- safety requirement other proving ployer bears the burden any tuted was that teacher is a direct threat”. Just responsibilities whose included van holding in the Eleventh Circuit’s Moses spoken able to discriminate words. Interpretive was on the Guidance to based obviously safety requirement This is Regulations, of Federal so too Code which tends to screen out a class of indi- I. holding Specifically, our in Rizzo hearing viduals with disabilities. such *6 safety requirements “with to regard that case, the defendant now bears the burden that screen out or tend to screen out an poses a proof of that the direct a individual with a or class of threat the health or of herself or to disabilities, with individuals others.6 requirement, that the as must demonstrate individual, satisfies the ‘di applied to the the Elev agree We therefore Interpretive rect threat’ standard.” Guid proof that the burden of is on enth Circuit 1630.15(b) (c).3 Rizzo ance to 29 CFR & that, plaintiff prove qualified to as a that this is law of the contends individual, a to she is not direct threat dispositive proof. of the issue of burden of disagree with the herself or others. We Further, a agree. upon we find that We opinion only opinion insofar as that Moses reading of the caselaw and the thorough exceptions for no to this rule. allows fact, is, there in no conflict at regulations, (“The all employee retains the burden at all. added). 447)(emphasis Moses at times...” that, I, hold in accord with the federal putting the burden We The law Rizzo defendant, that only regulations, in when a court finds prоof applies on the Nonwovens, Inc., driving also be a state- sibilities included van 2. Moses v. American 1996). Cir. of a bache- certified teacher with a minimum education, degree in such the burden lor's 3. See I at 764. Rizzo plaintiff prove case would on the to remain a direct threat. It is the nature that she is not Id. itself, safety requirement and whether it 51, p. 55 5. See Defendant’s Exhibit disabled, that deter- tends to screen out proof shift to mines if the burden of should example, "safety had CWLC instituted a For the defendant. requirement” any respon- whose that teacher These mirrors were there to modate Rizzo. imposed tend requirements driver, with or without a any van disabled, so then the burden out screen visu- disability, could check on the children prove employer, proof shifts to necessary step since ally. This was fact, is, in a direct threat. anyone for enormously difficult would be understand now with an Working up in a van filled with distinguish words bar, at defendant- in the case ing children. to two dozen proof, burden of has the appellant CWLC duties, there is regard to her other With assignments their may fully address we As qualified. Rizzo was not no evidence deny court err in the district error. Did аppears an administrative assistant as a matter of judgment ing the motion her other completed successfully all have light in the the evidence law? We view duties, answering telephone, including ask, non-movant, favorable to most only loss. despite hearing for the juror have found could a reasonable appears with Rizzo to have been problem plaintiff?7 potential threat they perceived what ADA, the prevail under To driving. van in the area of (1) she prove things: three plaintiff must Finally, Rizzo must that she an otherwise disability; she is has a an adverse decision suffered (3) she suffered qualified employee; and disability. solely of her because solely be employment decision an adverse no adverse contends that Rizzo suffered disability. cause of They the re employment decision. blame parties stipulated have Both in Rizzo’s work hours on the sea duction disability. suffers daycare They point sonal nature of work. teachers shared the cook out that other Was Rizzo otherwise They Rizzo. contend along that Rizzo employee? CWLC contends change duties was based on van, the school sаfely could not drive be alone in the request her own qualified. We that she therefore children for an extended classroom with that the burden already have established short, contends that period. a direct constituted Rizzo was never demoted. appellant. Again, threat falls on the Viewing light the evidence most is intertwined with CWLC’s asser issue appellee, must favorable to the we dis- law, proved, tion that it as a matter *7 reduced, hours were result- agree. Rizzo’s Rizzo was a direct threat others. We compensate in To for the ing wages. lost in There no evidence the disagree. is reduction, a Rizzo was forced work any problems that record Rizzo ever had mornings late after- split-shift early the van. There no evidence of a driving split-shift noons. Even with the she was accident, previous near- previous or even a enough keep full working hours There no that her dis miss. evidence package (though recognize we benefits ability being resulted in her distracted benefits). actually that lost her she never points driving from her duties. CWLC was from her as the She removed that, to hear out as Rizzo would be unable driver, van and sеnt to in the kitch- work van, in would have to the children the replaced en. cook her as the van The placed the mirrors in the rely on additional light driver. In the most favorable to the van for visual clues as to children’s Rizzo, juror clearly could find a reasonable safety. that this would CWLC contends she was demoted. Rizzo, in to distract and could result tend demotion, conceding an accident. There is no evidence that the a While alternative, in argues in to accom- the placed mirrors were the van CWLC Cir.1969)(en banc). Boeing Shipman, Co. v. clearly show such a demotion for elimination of discrimination record will solely disability. on her against was not based individuals with disabilities.”10 re-urges previous arguments: its CWLC Had Congress apply intended this Court to seasonal; everyone that the work was balancing a test in a evaluating discrimina- cooked; that Rizzo asked not to claim, tion Regula- the Code of Federal Mainly, certain duties. CWLC asserts plain. tions would have made that Yet van not an essential driving was provides statutory us with no au- duties, part suspending Rizzo’s so thority they propose. for the test As such driving from van was not a demotion based a test has no basis in either the regulations disability. disagree. on her We caselaw, or the and is not mandated every day. the van duties included justice, adopt interests of we decline to CWLC, appellants, all We remind such a test. judgment a matter of law motion as Having reviewed the in light record require does not this Court to decide Rizzo, most favorable to we conclude that which side has the better of the ease. “It jury a reasonable could have found for the jury of the is the function traditional plaintiff, and affirm the trial court’s denial facts, Court, of the and not the finder judgment of the amended motion for aas weigh conflicting Clearly, evidence.”8 matter of law. juror that driv- could conclude part the van an essential of Rizzo’s was for a Motion new trial job, for her grounds and CWLC offers no Appellant alternatively argues suspension duty than her from that other liability against the verdict of disability. evidence, great weight of the and that the argument final is that CWLC’s judge district abused in his discretion de- recognize “unique this Court should nying the motion for a new trial. adopt circumstances” of this arguments parties concerning The equаlly unique to fit “balancing test” assignment this of error are identical with facts of the case. CWLC contends that a regarding judgment those made as a mat- daycare facility school and must make the law, ter of and need not be rehashed in protection primary of the children their detail in viewing here. After the evidence mind, they propose that in concern. With Rizzo, light most favorable to we can- that this Court determine whether CWLC judge not conclude the district abused “properly protect balanced the need to in denying his discretion the motion for children its care and Rizzo’s interest new trial. Learning continued at adopt decline to
Center”.9 We such jury charge balancing recognize test. in We protecting terest the children their throughout opin- As we have noted recognize care. must also We ion, regarding the burden of the law *8 only at trial produced evidence shows appears on the issue of “direct threat” speculation as the threat that could be in until have been conflict now. CWLC posed by with a that the court now asserts as error district safely doing job who been for two had of оf mistakenly assigned burden years. parties. “direct threat” to both CWLC so, Congressional regard doing intent with to the further contends clearly spelled provide prejudice ADA out: “To a district court caused substantial is comprehensive parties. clear and national mandate 8. Id. 12101(b)(1). 10. 28U.S.C. Appellant’s page
9. Brief at 23. fact, library— quiet in the of the in their brief after the concedes
CWLC
It
enterprise
this issue before
if
is to be allowed.
to raise
such
they
failed
court,
now raise it for the
failure to raise this
Appellant’s
the district
not.”15
the error
Because
appeal.11
time on
court
leaves
first
issue before
district
appeal,
time on
we
the first
is raised for
of an
demanding
with the
standard
CWLC
affecting substantial
plain error
review for
“seriously
would
affect
error which
if
reversing only
parties,
of the
rights
fairness,
judicial
reputation
or
integrity,
fairness,
affect the
“seriously
would
error
conflicting
find the
proceedings”.16 We
judicial
public reputation of
integrity, or
meet this standard.
“Re-
charges do not
proceedings”.12
a run
plain
for
error is ‘not
versal
remedy’
‘only
excep-
mill
and will occur
if there was er
First we examine
miscarriage
tional circumstances to avoid a
charge. The
in the district court’s
ror
” 17
exception-
justice.’ We find no such
properly assigned to Rizzo
court
district
al circumstances here.
proving
“qualified
was a
disability”.
defining
In
with a
individual
Damages
“the
phrase, the court instructed that
who,
person
with or
phrase ... describes
final con
Appellant CWLC’s
accommodation, can
without
$100,000
damage
tention is that a
award
functions of the em
perform the essential
past
anguish
for
and future mental
is ex
plaintiff holds
position that the
ployment
of the record. We over
cessive
view
pose a ‘direct
and who does not
or desires
upon
finding
only
turn such an award
health
of herself or
threat’ to the
or
“clearly
that the amount awarded is
erron
others”.13
eous”.18
the court fur-
very
charge,
In the
next
that the district court’s
suggests
jury
ther
that “the defen-
instructed
finding that Rizzo suffered
lost
$182
plaintiff
dant has asserted
$100,000
wages is an indication that
school van be-
removed from
past
anguish
mental
is exces-
and future
a school van
cause her
$100,000
may
gener-
sive. The
award
posed a ‘direct threat’ to the health
driver
wages, yet
оus in relation to the lost
men-
(The court
or
of herself or others.
anguish
compensatory
tal
is an actual
concluding
then defined ‘direct threat’
jury,
damage.
having
We note that the
The
has the bur-
following:)
defendant
malice,
found
acted with
could
by a
preponderance
den to
punitive damages
have
further inflicted
evidence that a direct
threat exists.”14
appellant, and
do so.
chose
instructions,
and the
like the caselaw
short,
say
cannot
that an award of
we
regulations, appear to conflict.
$100,000
anguish resulting
for mental
from
before,
malicious discrimination
violation of the
As we have noted
howev
er,
ADA
jury charges
complexi
enough
“few
in cases of
“shock
conscience”
over,
ty
pored
will
if
yield
long
error
Court.19
Appellant's
page
Highland's
v.
Fire
Brief at
35.
17.
Ins. National Union
Ins.
1027,
Cir.1994)
(5th
quoting
27 F.3d
Olano,
725, 736,
12. United States v.
507 U.S.
Sears, Roebuck,
486,
v.
& Co. 807 F.2d
Peveto
1770,
(1993).
L.Ed.2d 508
113 S.Cl.
1987).
Cir.
at 601.
Record
Rajaan
18. Hernandez M/V
14. Record at 602.
587, rehearing denied
banc
fees are opin- awarded accord As the majority opinion with this forth sets ion. background factual only I will terrain, briefly revisit that placing particu-
WIENER, Circuit Judge, dissenting:
emphasis
lar
on the CWLC and Rizzo’s
Because I
regarding
believe that
fail
interaction
report
Ms. Rizzo’s
the need
provide
ure to
the Children’s World
audiologist
from Rizzo’s
certifying that she
§
20. 42
U.S.C. 12117 and 42 U.S.C. 2000e-
we
4.As
noted in
v.
World
Children's
5(k).
Centers, Inc.,
(5th
Learning
could that she confirmation would need at working CWLC began Rizzo the van. driving again permitting safely before do so in March could teacher assistant as an CWLC gave then Ryan children. year olds. her to drive the and five 1991, instructing four list for Function” re- Job impairment Rizzo an “Essential hearing has a She assistant) (not aids, an administrative which she hearing of a teacher the use quires evalu- audiologist applied her to have she first and asked when informed CWLC the func- included could at CWLC Her duties ate whether she position. mention classroom, specifically adminis- doing list did not in tions'. The assisting in em- that the driving it did state driving, and children paperwork, van but trative supervise to assist and must be able ployee CWLC van. Moreover, “in all activities.” children 1993, parent of one February In course, ability her was, aware that Rizzo in an incident observed students safely was at issue. to drive van room, unable in her was which son a class repeatedly au- despite attention to her Rizzo’s the list get presented Rizzo not complained Cuthirds, parent an em- yelling her name.5 Patricia but to diologist, Riz- Myra about Ryan director Com- Texas Rehabilitation ployee CWLC and children audiology. left alone with in being mission, training no zo’s who has ability to Rizzo’s concern over to observe expressed that she needed Cuthirds stated Ryan advised safely.. she When whether drive van to determine Rizzo at work listed, and discussed complaint Rizzo perform the functions could her, had ex- admitted that she Rizzo Cuthirds Ryan. Neither Rizzo so informed over the hearing loss Rizzo at perienced further audiologist ever observed nor an employment with CWLC course of her on Rizzo’s report further and no work audiоlogist. to see her otherwise choking was scheduled or to hear a child ability hearing her Rizzo whether Ryan driving asked children while supervise the hearing emer- CWLC, her from prevent although loss would was ever sent van in the back choking aor child gency why sirens as to not. disagreement there is some that she responded Rizzo the van. purposefully that Rizzo contends CWLC sirens, she did but that could hear on- audiologist’s delayed obtaining in choking child. if could hear a know she that she testified evaluation. Cuthirds site Ryan temporarily Following meeting, not want that she did told Rizzo was responsi- driving her Rizzo from removed did she to observe her because Cuthirds provide confirma- until Rizzo could bilities Further- the boat.” want to “rock (1) could audiologist tion from an they more, employees testified sirens, and emergency hear vehicle bring could Rizzo that she emphasized to driving a children safely supervise while observe her. audiologist to work to in her van.6 contrast, that she testified both coming worry “not to about” told Cuthirds 1993, re- gave Ryan a
In March check that she would but to observe her Riz- stating that port audiologist from the so, Ryan told to do into the need vehicles; howev- emergency zo could hear no testing “was the additional her that Rizzo’s er, to address report failed further testified necessary.” Rizzo longer while driv- ability to the children supervise incident, parent de- fact, documenting was, complaint by the second This inability occurring rather May parent stemming from it as scribed admits, get attempting to who was howev- February hear a 1993. Rizzo child than er, attention. February conversation that in her Ryan removed her Ryan, which after argument that that CWLC’s Rizzo contends duties, Ryan informed from van prompted her removal parent’s complaint complaint. assertion on She bases this fabricated. writing a letter to the fact
265 (1) why that she did not know would rule is Ryan an employer that shall not “[1] have told her that she no longer needed to discriminate against [2] a qualified individ- (2) get testing, additional ual with a disability she never [3] because Ryan why disability....”9 asked such would be the case or Addressing re- these up quirements order, in any way. followed this conversation in reverse “disability” a includes a or physical impairment mental Rizzo resigned position from her that substantially limits one or more of an May 1993. inter- exit mаjor individual’s life activities.10 CWLC view, Adame, Claudia Ryan’s immediate grants that hearing impairment Rizzo’s supervisor, asked Rizzo what CWLC could disability. constitutes a It important keep do to respond- her with them. Rizzo note, however, that the ADA requires em- that “nothing ed could be done” ployers limitations, to accommodate up.” “mind had been made She testi- disabilities.11 “The determination fied at trial that she had determined whether an individual has a if all “even came tests back to not necessarily based on the name diag- or qualified,” [she] was she did not be- nosis of impairment has, person lieve CWLC would her driv- reinstate but rather on the impairment effect brought duties. Rizzo present suit 12 on the life of the individual.” later that month. regard
With requirement, second qualified a individual per- is one who can II. form the job essential functions of the held Merits with or without reasonable accommoda- ADA, however, tion.13 The permits an A. Standard Review impose qualification standards We de novo review the denial of a mo- tend to screen out the disabled so tion judgment as matter of law long as standards are those shown to be (“JML”), viewing all evidence in the light “job related” and “consistent with business most favorable to non-moving party.7 necessity.”14 qualifications Such stan- to grant decision JML “is not mat- “may dards a requirement include that an discretion, ter of but a conclusion of law pose individual shall direct threat to based upon finding that there is insuffi- the health or of other individuals in cient evidence to create a fact question for 15 workplace.” The Act defines “direct jury.”8 meaning threat” as “a significant risk to the health safety of or others cannot B. ADA’s Interactive Process eliminated reasonable accommoda- 16 1. Statutory Structure tion.” To why understand I Finally, believe ADA defines discrimination fails, claim necessary it is to review the including employer’s failure to make basic outlines of the statutory ADA’s “reasonable accommodations to the known Act, framework. Under the general physical or mental limitations of an other- Partners, L.P., Burroughs Operating (1995). v. FFP 1630.2(j), App. § 12. 29 C.F.R. 543, (5th Cir.1994). 28 546 F.3d 1630.2(m). § 13. See 29 C.F.R. Energy Litig., In re Letterman Bros. Sec. 799 967, 1986). F.2d Cir. 12112(b)(6). § 14. 42 U.S.C. 12112(a). § 9. 42 U.S.C. 12113(b) added). (emphasis § 15. 42 U.S.C. 12102(2). § 10. 42 U.S.C. 12111(3). Taylor 16. 42 Principal 11. See Group, U.S.C. Financial Inc., (1996). F.3d disability; stemming from disability limitations awith individual wise take into account employer to permits can demon- [employer] such ... unless *12 limitations; and posed by im- such would risks that the accommodation strate be- (3) process operation an interactive hardship on the envisions undue pose an employee both employer and the [employer].17 the such tween of the business employee of the the responsibility stage is the at the initial when “it general, In disability the employer of his the inform inform the must individual stemming is need- therefrom limitations any that an accommodation and employer accommodation, the makes such and at employee the an request Once and ed.” ac- the stage reasonable when appropriate request, “[t]he accommodation through a togeth- determined must work employee is best employer commodation and flexible, process involves interactive accommodate how best to er to determine indi- and the employer both the limitations. such disability.”19 with a vidual Employee Partic- Requirement 2. Thus, proper- an accommodation once ADA’s Interactive Process ipate in responsibility for fashion- the
ly requested, Faith in Good thе between one is shared a reasonable only logi- employer. This is employee and it is not liable asserts that As CWLC n have cal, typically employee an will as Rizzo failed the ADA Rizzo under because concerning his information access to better what, any, if help determine whereas an em- and abilities limitations experienced as a result she limitations have better access to typically ployer will loss, aspect third it is the hearing her possible alternative regarding information in- which we are statutory scheme in positions available disabled or duties Principal Finan- Taylor terested. into a two Fitting these halves employee. Inc.,22 we considered situa- Group, cial can whole, employee and employer present very similar to that tion best to to determine how together work There, an employee brought an ADA suit. and employee’s restructure claim, that his he em- which asserted in a accommo- place manner work reasonably to had failed accommo- ployer does employee’s limitations but dates mental bipolar disabili- date his disordеr hardship employ- pose an undue employee alerted his ty.23 Although If, process, at the end of er. bipolar that he suffered a disor- employer em- provide the disabled employer fails to der, identify any limitations that did not he accommodation, it is ployee a reasonable a result of the condi- he experienced hand, under the ADA.20On other liable employee contrary, To the told tion.24 participate if the does right” “all and that he was supervisor faith, precluded from he is process good meet, likely able to and that he would be employer.21 recovering from the exceed, had been set goals that could not Taylor pre- him.25 held that Act, therefore, an em- We requires claim,26 stating “[w]hen vail on his reasonably to accommodate known ployer 12112(b)(5)(A). at § 23. Id. 159. 42 U.S.C. 17. 1630.9, (1995). App. § 29 C.F.R.
18.
24.
Id. at 164.
Taylor,
(quoting
C.F.R.
The Seventh and Tenth Circuits have under the ADA.35 similarly held that an employee cannot
prevail on his ADA claim if his failure to
3.
Interactive Process and Employer’s
provide medical information prevented his
Legitimate Safety Concerns
employer from fаshioning a reasonable ac
present case,
In the
request-
CWLC too
commodation.
In Beck v. University of
ed that
provide
them with certifica-
Wisconsin
Regents,28
Board
the Seventh
tion that
perform
she could
a function—
Circuit confronted an ADA claim by an safely transporting the
children
the
employee
depression.29
based on her
Af van—that Rizzo admits —more accurately,
ter
employee
the
supplied
employer
her
insists —constituted an essential function
with a letter from her
stating
doctor
suit,
of her position.
however,
The
diverg-
“may
some
require
reasonable accom
es somewhat
from the above-examined
modation so that she does not have a
cases in that Rizzo complains not
recurrence of this condition
depres
[the
CWLC failed
reduce
to
or restructure her
sion],”
employer
the
requested that the
duties to accommodate limitations she suf-
employee
sign
loss,
release
fers as a
to allow it to
result of her hearing
but
obtain further information.31
rather that
employ
impermissibly
reduced
ee, however,
and restructured
signed
neither
the release nor
duties
on ster-
based
eotypes
generalizations. Thus,
attended a
meeting
to
where-
scheduled
discuss
Beck,
as in
possible
Taylor,
and Templeton, the
accommodations.32 She subse
question of
employer’s liability
quently
suit,
cen-
brought
asserting that her
tered
employer
on what the
had
to
employer
reasonably
had failed
to accom
failed
do,
question
here the
liability
modate her disabilities. The Seventh Cir
hinges on what
actually
did.
that,
cuit
by
held
refusing to sign the
medical
provide
release form or
the Uni
potentially
This is a
significant distinc-
versity with sufficient information about
tion. The ADA does not permit an em-
conditions,
her medical
Beck
responsi
was
ployer to make adverse
deci-
employment
ble for the
breakdown
the interactive
solely
sions based
on the fact
that an
process
envisioned
the ADA and thus
disability
has a
without deter-
prevail
could not
on her ADA claim.33
mining that
disability
affects the em-
1137;
27.
Id. at 165.
Co.,
33.
Id. at
see
Stepan
also
Steffes
(7th Cir.1998) (“Because
1996).
28. 75 F.3d
[employee]
Cir.
up
to hold
failed
end of the
process by clarifying
interactive
the extent of
restrictions,
her medical
[employer]
29.
Id. at 1132-33.
cannot be
failing
provide
held liable for
to
reasonable
accommodations.”).
30.
Id. at 1133.
(10th Cir.1998).
Id.
34.
43. See *16 just that employee that it is informed the duties, van removing Rizzo from by they require to reinstate information that hours, by assign- and thereby reducing her support a duty, is sufficient to the removed shift, split and duty her to kitchen employer prevented finding that employment action took an CWLC adverse information. providing the employee from agree I were Rizzo. against would Ryan her testify Rizzo did not forbade presenting no direct threat typical case audiologist to observe bringing from however, issue; permits if ADA an fact, Rizzo testified her at work. employee’s an employer to reshuffle Ryan why as to question not even she did investigation of its during a reasonable longer needed. information was no concerns, employer legitimate to take ac- Nevertheless, temporarily be allowed necessary decide must it constitute ad- that would otherwise single breakdown tions based on this issue that, The issue employment actions. is Rizzo admits in her verse of interaction. Paso, uniquely necessary are City F.3d accommodations Daugherty v. El 56 Cf. Cir.1995) (5th insulin-dependent (holding knowledge and his within the 695 individual driver was not otherwise provider, a disabled health-care ADA); City Chandler under expect employer cannot remain silent Cir.1993) (same Dallas, F.3d identifying initial to bear the of under Rehabilitation Act). for, suggesting, appropriate ac- need '’). commodation. (“When Taylor, at 165 See limitations, resulting disability, nature of the not whether took action that threat issue. CWLC asserts that Rizzo negatively employee’s affects the status— must show that pose she does not a direct e.g., reducing his hours reassigning or him threat to herself or others to less desirable duties—it is whether the she a qualified is individual with disabili employer unreasоnably and unnecessarily, ty earlier, noted an essential element —as took such action. prima of her facie Rizzo counters case.48 that, on the contrary, it is CWLC that stigmatized testified that felt she prove, must defense, as an affirmative by her new split duties and schedule. She Rizzo constitutes a threat. direct admitted, however, they were duties shared all employees CWLC to varying The statutory text is unclear. pro It degrees and that others split also worked vides that a “qualified individual” one shifts. She further admitted that she told “perform who can the essential functions CWLC that she did not want work with [his] An employee who can position.”49 school-aged children. Essentially, her not fulfill his duties without harming him claim that she suffered an adverse employ- self or others'would seem per unable to action, therefore, ment solely turns on the form the essential position. functions of his fact that required CWLC that she not to Moreover, pointed above, out the ADA drive proved the van until she she do could permits an employer to impose “qualifica That, however, so safely. is exactly what tion standards” pose individual not the ADA permits do. Thеre- a direct threat to the health or safety of fore, law, as a matter CWLC’s decision others.50 The language regarding qualifi cannot constitute an adverse standards, however, cation appears in the action. section the statute entitled “Defens
CWLC had grounds for tem- es,” muddying the waters as to which party bears the burden of proving dis porarily removing Rizzo from van-driving —or proving direct threat contention. duty while it investigated whether she —the posed a safety risk to the children or majority concludes that not only others. CWLC did not treat Rizzo unrea- does holding our I “[a]s sonably during the investigatory period by defenses, all affirmative bears the [CWLC] unnecessarily diminishing her pay work or proving burden of that [Rizzo] is a direct or assigning duties; to oppressive and threat”52 constitute the law of the CWLC, Rizzo, was not but who unneces- thus deciding the burden of issue for sarily delayed the investigation. Because present appeal, but further that provide Rizzo failed to the crucial medical holding Rizzo I correctly appli states the information to prior to quitting, cable law. The majority attempts to har responsible for the breakdown in the monize the ADA’s apparently conflicting *17 process interactive required by the ADA. requirements that the employer both and She is thus precluded recovering from un- the employee their direct threat con der that Act. and explain tentions to the Rizzo I holding with following the framework: Although a C. Direct Threat plaintiff generally bears the of burden CWLC and Rizzo disagree as which that he is proving not a direct threat to the party bears the burden on the direct health safety and of himself and others as 12112(a); § 48.See 42 U.S.C. 1630.2(m). v. Moses 49. Ameri See 29 C.F.R. §. Nomvovens, Inc., can 97 F.3d Cir.1996) ("The employee 12113(b). § retains at 50. all times 42 U.S.C. the persuading burden jury of the either that he was not a direct 12113(a). threat or that 51. See U.S.C. available."), accommodations were cert. de nied, (1997). I, 519 U.S. 1118 at Rizzo case, majority the in this example, case, For an em facie when prima his part of as re- safety standard describes that tend safety standards imposes ployer responsibilities “any teacher whose disabilities, quiring with individuals out to screen discrimi- able to driving to be included van threat the on direct proof of the burden certainly one That is words.” spoken .nate employer. to the shifts issue require- general of CWLC’s component likely I Rizzo agree I Although jobs their perform employees ment that its in this issue proof of the burden forecloses course, component is, the of it safely; and that, we my opinion, issue appeal53 implicated requirement —an general of because, forth I set not resolve need As impairment. hearing Rizzo’s stage fails at another above, claim of her the basis on claims discrimination majori- that the believe analysis of the CWLC seeks hearing impairment —I incor- both burden-shifting formula is ty’s safety to the by reference itself defend (at case law prior contrary to our rect and conception, issue, majority’s the under than othér case law prior to our If, least proof. of the burden bears my I). therefore, I, conclude however, attempt to defend did not the matter. on thoughts concerns, Rizzo safety the basis of itself on left on issue the burden would bear majority’s I have with difficulty first parties. by the entirely unaddressed applied, when framework proposed a val- Thus, majority the makes although Although the rule. exception swallows the variоus the ADA’s to harmonize iant effort the assigns burden majority’s scheme the solution, practical for all its requirements, plaintiff as to the threat issue the direct on (and language the despite purposes matter, the defen- practice, general a rule), the allocates articulated majority’s proof. of this burden always bear dant will the proof solely to defendant. burden question the whenever This is so because frame- Second, majority’s even if the poses a direct the whether the assigning always result did not work in a others arises to himself or threat defendant, will, adopted, if to the burden concomitant raise as a necessarily it will that there is result to the anomalous “lead safety stan- employer’s the the issue of on qualification proving a lesser burden rubric, the majority’s Under dards. care involves the plaintiff job where to the em- then shift will burden others, necessarily risk entails words, by arguing ployer. simply In other not.”54 others, job when the does than could that the ADA’s face of the flies Such result deemed to will be job safely, plaintiff proving initial allocation Thus, standard. imposed have and the position he is actu- question threat every time the direct employer can recognition Act’s will be play, the defendant ally comes into (and should) legitimate account take into proof, saddled with safety concerns. (circumvented) allocating rule of general burden-shifting majority’s Finally, fade into employee will that burden (at implicit) least hand, If, scheme conflicts the other on background. cases, I Chan- pre-Rizzo of our holdings based raise defense does not defendant Dallas,55 v. and Daugherty City concerns, dler threat issue the direct *18 of Paso,56 the which both of involve City putative El and the simply lie will dormant of claims of insulin- disability discrimination of the proof the burden of allocation drivers. In Chan- dependent meaningless. be employee will (5th Cir.1993). 2 1385 accompanying 55. F.3d 64 and 53. see note But infra text. Cir.1995). (5th 56. 56 695 F.3d Amego, at 144. 54. 110 F.3d dler, we held that an employee was not an in regulations the implementing the Reha- qualified” “otherwise driver under Re- bilitation Act: Act habilitation because of the risk of dan- plaintiffs [I]t burden to show that posed ger he to himself and others.57 En he or can perform she the essential func- conclusion, route to this we noted thаt the job, tions of and is therefore “quali- Rehabilitation Act’s “definition of qualified fied.” Where those job essential func- handicapped individual per- includes a [] tions implicate the safety others, of safety sonal requirement otherwise —an plaintiff must demonstrate that she can qualified handicapped individual is defined perform those functions in a way that as one perform who ‘can func- essential does not endanger others.62 position tions of the in question without endangering the health and I believe that this conclusion is both ”58 individual or others.’ Accordingly, we correct implicit in Chandler and assigned of regarding burden the Daugherty. By expressly modeling the plaintiff issue to the part as of his ADA’s qualified concept individual after prima facie case. that of the Rehabilitation Act by defin- Chandler, Building on similarly we held ing qualified individual an employee as in Daugherty that an insulin-dependent di- who can the essential functions of abetic had not met his burden under the position, his Congress provided has strong ADA to that he was an otherwise evidence that it intended the employee to qualified driver because of the risk he burden, bear the at least initially, prov- of posed to himself and others.59 In doing, so ing in prima facie case that he is not a that, we noted Act, like the Rehabilitation direct threat. “the ADA by its own recognizes terms [a] safety requirement” integral part as an It plausible is at least to advance that an its otherwise concept.60 individual employee bears the proving that, in performing his functions, essential
In neither Chandler nor Daugherty did he pose threat, does that, direct but we specific address the argument made if the employee burden, meets this that, here ADA, under the defendant can still show an as affirmative employer bears the burden on the direct defense that represents a threat issue it is an because affirmative direct performance threat Circuit, defense. of his however, The First has. non-essential duties.63 If such were Equal Employment Opportunity Com ADA’s mission v. various Amego,61 pronouncements the First Circuit con concerning the safety cluded issue would not because Rehabilitation not, however, Act’s definition tension.64 It “qualified necessary individual” specifically addresses the address whether safety issue such а reading is correct Congress because intended the here ADA’s def because Rizzo insists that van driving inition “qualified individual with a dis was an job essential function of her ability” to track closely the definition used CWLC. Chandler,
57.
at 1395.
F.3d
63. See
at
id.
143-44.
58. Id. at
(quoting
City
1991)).
League
Chiari v.
holding
64. And
I's
that CWLC has
City,
Cir.
proving
burden of
its affirmative defense
necessarily
would not
Daugherty,
59.
foreclose the conclu-
threat Doe, By Doe; Mary Doe & Lisa Janet defen- proof to the allocating the Doe, Mary friends Susan their next in which every case either dant Doe, By Doe; their Jill & Lisa Doe actually at issue question direct threat Mary Doe, &Doe friends Susan next case in which every or at least Plaintiffs-Appellants, Doe, Lisa care of others. involves the job employee’s me, that such though, to It clear seems either squared cannot
allocation INDEPENDENT BEAUMONT plaintiff requirement DISTRICT, the Act’s SCHOOL Defendant-Appellee. he is show that law. prior our case or with essential No. 97-40429. Appeals, States Court United III. Fifth Circuit. Conclusion 16, April thorough review my En upon Rehearing Granting Based Order in this and the record Banc June ADA’s structure failed because Rizzo I conclude report from provide CWLC safely that she could showing audiologist children while
supervise the request despite
van CWLC’s information, prevail cannot
for such quit Rizzo’s decision her ADA claim. requested providing job prior
information constituted break-down by the process required interactive responsible. she was
ADA for which
Moreover, temporary reassign- CWLC’s while it driving duties van
ment Rizzo’s can- valid concerns its
investigated deci- adverse
not constitute prima necessary element of
sion—a that, at I am convinced Lastly, case.
facie matter, initial
least as an does that he proving
bears the burden threat to the health pose a direct his es- performing when
safety of others therefore, I, respectfully duties.
sential
dissent; request grant I would verdict for and reverse the
for a JML
Rizzo. See notes infra text. (5th Cir.1996). F.3d 155 22.93 nature of the disability, resulting limita- Employing identical reasoning, tions, necessary Tenth accommodations are Circuit held Templeton v. Neo uniquely Services, within the data knowledge of the em- Inc.34 that an who had ployee provider, provide and his refused to health-care a dis- abled certification from her employee cannot рhysician remain silent physically able expect his employer to the es bear the initial sential duties of position following identifying for, the need automobile accident in response to the suggesting, appropriate accommoda- employer’s reasonable request in for such tion.”
Notes
notes accompanying 22-35 text. interview, what CWLC Adame asked exit seeking to investi- not unreasonable was quitting. from At keep do to her could further.46 matter gate informa- type of the point, because Rizzo, CWLC, but Second, it was not involved, on Rizzo to was tion investiga- delayed the unreasonably who that she could with provide CWLC Rizzo, Only in con- the matter. tion of the children supervise drive the van pro- audiologist, could her junction with she—not CWLC— safely. Accordingly, necessary to information the medical vide further the issue of required to raise was posed a risk to she whether determine to re- seeking quitting before testing course, Rizzo, did furnish children.47 CWLC cover for discrimination. it re- the information half of CWLC specific information reasonably requested could hear report that she quested —a Rizzo was direct whether to detеrmine Although vehicles. emergency sirens and, the children safety threat to inconsistently regarding testified minimum, then, reopened the door at a prevent- matter, that CWLC Rizzo asserts information at the exit provide her the in- them with providing ed her from Rizzo, however, chose to leave interview. specifi- had More requested. formation she be- because position testing additional cally, Rizzo claims not reinstate her lieved CWLC would chil- ability supervise regarding if all the tests duties “even came necessary.” longer no dren “was qualified.” [she] back matter, in a situation such an initial As of re- possibility Her choice forecloses tempo- employer has this in which under the ADA. covering duty from an rarily removed infor- and the concerns because specific context of Lastly, within the employer by the sought mation suspending Rizzo’s duties to temporarily employee’s within the uniquely type that concerns, investigate legitimate its control, clear that a it is far from ability to unnecessarily or unreason- did not effect that the em- single remark major- Rizzo’s duties. ably rearrange information, provide need not ployee evi- is sufficient ity concludes there admittedly has made after the conclusion support jury’s dence