Case Resources
Search this Case
in Google Scholar
on the Web
Google Web Search
MSN Web Search
Yahoo! Web Search
in the News
Google News Search
Google News Archive Search
Yahoo! News Search
in the Blogs
BlawgSearch.com Search
Google Blog Search
Technorati Blog Search
in other Databases
Google Book Search
Justia Research Resources
Justia.com
Supreme Court Center
US Regulation Tracker
US District Court Opinions
Federal District Court Civil Case Filings
Legal Blog Search
Legal Podcast Search
USA Constitution Annotated
Online Research Resources
Cornell LII
Cornell Wex Dictionary & Encyclopedia
LLRX.com - Legal Research
Expert Witness Directory
Nolo Consumer & Business
US Court Forms
WashLaw Directory
World LII
Cases Provided By
Creative Commons
public.resource.org
Victoria Rizzo, Plaintiff-appellee, v. Children's World Learning Centers, Inc., Defendant-appellant
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT - 213 F.3d 209 (5th Cir. 2000)
May 26, 2000
Appeal from the United States District Court for the Western District of Texas
Before KING, Chief Judge, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges.
DAVIS, Circuit Judge.
We took this case en banc primarily to determine whether, in this fully-tried case, the district court erred in the instructions it gave to the jury in Ms. Rizzo's action under the Americans for Disabilities Act and, secondarily, whether the record supports the verdict. The jury, in response to special interrogatories, rendered a verdict in favor of Ms. Rizzo. After carefully reviewing the record, we conclude that the district court committed no plain error in submitting this case to the jury and that the evidence amply supports the verdict. We therefore affirm the judgment of the district court.
Appellee, Ms. Victoria Rizzo, was employed by appellant, Children's World Learning Centers, Inc. (CWLC), as a teacher's aid. One of her duties was driving a van transporting children to and from school. Ms. Rizzo had a hearing impairment which she disclosed to CWLC before she was hired. After observing Ms. Rizzo in the classroom, a parent expressed concern about whether Ms. Rizzo's hearing impairment placed the children at risk while they were riding as passengers in Ms. Rizzo's van. Shortly thereafter, CWLC relieved Ms. Rizzo of her driving duties because of their concern that her hearing impairment prevented her from safely driving the van and supervising the children in the van.
The district court initially granted summary judgment in favor of CWLC on grounds that the employer took the personnel action for a legitimate non-discriminatory reason and Rizzo failed to show that this reason was pretextual. Ms. Rizzo appealed to this court and we concluded that issues of fact were presented which required resolution at trial. Rizzo v. Children's World Learning Centers, Inc., 84 F.3d 758 (5th Cir. 1996)(Rizzo I). We stated that "[w]hether one is a direct threat [to the safety of herself or others] is a complicated, fact intensive determination, not a question of law. To determine whether a particular individual performing a particular act poses a direct risk to others is a matter for the trier of fact to determine after weighing all of the evidence about the nature of the risk and the potential harm." Id. at 764. On the burden of proof, we stated that "[a]n employee who is a direct threat is not a qualified individual with a disability. As with all affirmative defenses, the employer bears the burden of proving that the employee is a direct threat." Id.
On remand, the case was tried to a jury which rendered a verdict in favor of Ms. Rizzo. The district court entered a judgment on the verdict and a divided panel affirmed. Rizzo v. Children's World Learning Centers, Inc., 173 F.3d 254 (5th Cir. 1999)(Rizzo II). The dissent took the position that the district court erred in two respects: first, in placing the burden of proof on the defendant to establish that Ms. Rizzo was a direct threat to the children she was transporting in the van, and; second, in failing to grant defendant's motion for judgment as a matter of law on grounds that the plaintiff failed to produce sufficient evidence to support the implicit jury finding that she engaged in the interactive process to provide information to the employer about the extent of her disability. We took this case en banc to consider these two issues.
CWLC first challenges the district court's charge to the jury, explaining which party had the burden of establishing that Ms. Rizzo was a direct threat to her student passengers.
In charging the jury, the district court first instructed the jury that the plaintiff, Rizzo, had the burden of proving the essential elements of her claim. The court explained that this required the plaintiff to prove that she was a qualified person with a disability or a person who "can perform the essential functions of the employment position . . . and who does not pose a 'direct threat' to the health and safety of herself or others." Neither party objected to this charge and no argument is advanced suggesting that it is erroneous.
The court's next instruction explained the employer's defense that Ms. Rizzo was removed as the school van driver because CWLC thought she posed a direct threat to the health and safety of herself and others. The district court -- faithful to our remand order in Rizzo I -- charged that the "defendant has the burden to prove by a preponderance of the evidence that a direct threat exists." No objection was made to this charge.1
The question of who bears the burden of establishing that an individual's disability poses a direct health or safety threat to the disabled employee or others is not a simple one. A number of cases either hold or suggest that direct threat isan affirmative defense on which the defendant ordinarily has the burden of proof.2 Other cases hold to the contrary.3 Because neither side objected to either of the district court's instructions described above, we review this challenge for plain error.
As we stated in Highlands Ins. Co. v. National Union Fire Ins. Co. of Pittsburgh, 27 F.3d 1027, 1031-1032 (1994):
In the context of Federal Rule of Civil Procedure 51 is even more restrictive than Criminal Rule 52(b); indeed, one circuit holds that it allows no new attacks on instructions on appeal. We thus agree with the Sixth Circuit that "[t]he principles and decision enunciated in Olano apply a fortiori in the civil context where courts pay less strict attention to procedural protocol." Olano augments this court's longstanding rule that reversal for plain error is "not a run-of-the-mill remedy" and will occur "only in exceptional circumstances to avoid a miscarriage of justice."
In allocating the burden of proof to the defendant to establish its defense, the district judge carefully followed the marching orders we gave him in Rizzo I. In this circumstance we are therefore unable to say the district court committed error at all. But, if we assume that the district court somehow committed error, it certainly was not plain or "obvious" error and we need not resolve the burden of proof issue raised for the first time on appeal.4
Turning to the sufficiency question, our review of the record persuades us that the evidence amply supports the jury's finding that Rizzo was able to drive the van safely and did not pose a direct threat to her passengers. Ms. Rizzo produced evidence of her safe driving history and unblemished history of supervising the children without incident. Rizzo also produced evidence that CWLC evaluated her skills and gave her a driving score in excess of the minimum needed to be able to drive the van. She was experienced in life saving procedures and possessed all licenses required by the State of Texas.
Rizzo's own testimony supported the conclusion that she had no difficulty supervising children on the bus. She testified about how she used the van's internal mirrors and how she kept order on the bus. The evidence was clearly sufficient to support this jury finding.
CWLC argues next that Ms. Rizzo failed to communicate with it to provide sufficient information about her disability to allow the employer to evaluate whether she could perform the job safely.
The district court--as part of its charge on reasonable accommodation--explained the obligations of the employer and employee to communicate with each other about the employee's disability and how that disability relates to job performance.5
In rendering a verdict for the plaintiff, the jury implicitly found no inadequate responsiveness by Ms. Rizzo in providing necessary information about her condition. No objection was made to this charge so the question narrows to whether the evidence is sufficient to support this implicit finding. Viewing the evidence in a light favorable to the verdict, our review of the record persuades us that the evidence is sufficient.
It is undisputed that before the parent expressed concern that Ms. Rizzo could not safely drive the van and supervise the children, CWLC knew a number of important facts: Ms. Rizzo possessed a commercial driver's license; she had taken and passed all of the written and performance criteria established by CWLC relating to van driving; and finally, no one had ever reported to appellant that Ms. Rizzo had failed to safely drive the van and supervise the children. In fact, the parent who expressed concern about Ms. Rizzo did not observe her engaging in any unsafe practices.
In response to the statement made by the concerned parent, appellant's director, Ms. Ryan, told Ms. Rizzo that she was concerned about whether Ms. Rizzo could hear a siren and whether she could hear a child choking in the van. Ms. Ryan told Ms. Rizzo that she could no longer drive the van until CWLC satisfied itself that she could do it safely. Following this meeting, Ms. Ryan indicated to Ms. Rizzo that CWLC would have an audiologist test Ms. Rizzo at the school. Despite inquiry by Ms. Rizzo, CWLC never arranged for such a test. Approximately three weeks later Ms. Rizzo went to her own audiologist. After testing her hearing, the audiologist reported that Ms. Rizzo should have no difficulty hearing a siren. Ms. Rizzo delivered the audiologist's report to Ms. Ryan and told her to call the audiologist if she had any questions. When Ms. Rizzo asked Ms. Ryan whether CWLC planned to have an audiologist test her at the school, Ms. Rizzo received no definitive answer. Ms. Ryan finally told Ms. Rizzo that the matter was in the hands of Ms. Ryan's superior, Claudia Adame. When it became apparent to Ms. Rizzo that CWLC planned to take no further steps to resolve the question of whether her hearing impairment affected her ability to drive the van and supervise the children in the van, she resigned.
We are satisfied that the jury was entitled to conclude that Ms. Rizzo adequately communicated with CWLC about her hearing impairment and the effect of this impairment on her ability to safely drive the school van.
For the above reasons, the judgment of the district court is affirmed.6---------------
It is unclear from the statutory scheme who has the burden on this issue. It may depend on the facts of the particular case. The EEOC suggested at argument that where the essential job duties necessarily implicate the safety of others, the burden may be on the plaintiff to show that she can perform those functions without endangering others; but, where the alleged threat is not so closely tied to the employee's core job duties, the employer may bear the burden. See also EEOC v. Amego, 110 F.3d 135, 144 (1st Cir. 1997). None of these issues were raised in the district court and all we decide today is that the district court did not commit plain error in its charge.
The court charged as follows:
For example, the individual needing the accommodation may not know enough about the equipment used by the employer or the exact nature of the work site to suggest an appropriate accommodation. Likewise, the employer may not know enough about the individual's disability or the limitations that disability would impose on the performance of the job to suggest an appropriate accommodation.
Where the missing information is of the type that can only be provided by one of the parties, failure to provide the information may be the cause of the breakdown and the party withholding the information may be found to have obstructed the process. This determination must be made in light of the circumstances surrounding a given case. If the employer does not obstruct the process, but instead makes reasonable efforts both to communicate with the employee and provide accommodations based on the information it possesses, the employer has made a good faith effort of accommodation.
An employer does not have the responsibility to go in search of information, such as medical advice, that is uniquely in the hands of the employee, particularly when the employee appears not to have been particularly responsive to requests for further information.
The dissent takes the position that Rizzo's proof failed as a matter of law to establish that Rizzo suffered an adverse employment action. We agree with the panel opinion (Rizzo II) that a reasonable jury could have concluded that when Rizzo was prohibited from driving the van, her hours were reduced by about 25% causing a similar reduction in her pay. This is sufficient evidence to establish an adverse employment action.
JONES and SMITH, Circuit Judges, with whom WIENER, Circuit Judge, joins, dissenting:
The result in this case is facially absurd: An employee whose numerous duties as assistant teacher and administrative aid include driving small children in the school van is asked temporarily not to drive until she can show that her poor hearing does not endanger her young passengers. For this purportedly reprehensible deed, done in the interest of child safety, the school must pay the impaired employee $100,000 plus attorney's fees.
Congress surely could not have intended such an outcome. We respectfully dissent.
I.
We agree with the majority to the extent that it resolves thorny substantive legal issues arising under the ADA. That is, the en banc majority, like the panel dissent, correctly concludes that the ADA requires employers and employees to engage in a good faith, interactive process of information exchange with regard to an employee's disability and the availability of reasonable accommodations. An employee who unreasonably fails to provide the employer with such information is thus precluded from pursuing an ADA action against his employer.
We disagree, however, with the majority's ultimate decision to affirm the judgment based on the verdict. The majority does so not only in the face of serious doubts about whether Rizzo provided adequate information concerning the scope of her disability to CWLC, but also despite a fatal flaw in her prima facie case.
Specifically, Rizzo failed, as a matter of law, to prove that CWLC took any adverse employment action because of her disability, a necessary element of an action under the ADA. The majority, agreeing with the panel in Rizzo II,1 dispenses with this issue in a single, perfunctory footnote. We would reverse and render on the ground that Rizzo did not present sufficient evidence of an adverse employment action to support the verdict.
We additionally are troubled by the majority's avoidance of substantive discussion of Rizzo I,2 in which the panel assigned the burden of proof to the employer to show that an employee cannot safely perform an essential job function because of his disability and thereby poses a direct threat to the health or safety of others. Rizzo I was incorrectly decided. The majority, however, altogether avoids this sticky question--admittedly made more difficult by facially inconsistent provisions of the ADA--by asserting that CWLC failed to raise the proper objection in district court. As we will explain, that position is untenable, because CWLC did adequately object.
II.
The ADA does not prohibit all discrimination on the basis of disability, but only discrimination that produces an adverse employment action. The Act expressly prohibits employers from "discriminat[ing] against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment."3 Therefore, "[t]o establish a prima facie case under the ADA one must show: (1) that he has a disability; (2) that he was qualified for the job; and (3) that he wassubject to an adverse employment decision because of his disability."4
Rizzo not only voluntarily resigned her position, but did so over CWLC's pleas for her to stay and inquiries as to what it might do to keep her.5 Rizzo alleges, however, that before her voluntary resignation, she was demoted; she presents two theories to establish her demotion.
First, she maintains that she lost wages from having to work a reduced, split schedule, and felt stigmatized by her new duties.6 These actions may constitute a demotion, but an employee additionally must show that he was demoted because of his disability.7 Rizzo made no such showing. To the contrary, she admitted that her new duties "were duties shared by all CWLC employees to varying degrees" and that "others also worked split shifts."8
The sole employment action for which there was evidence of impermissible discriminatory motive was CWLC's temporary suspension of Rizzo's driving duties.9 That temporary employment action was taken, as CWLC readily concedes, as the direct result of parents' complaints regarding Rizzo's hearing disability in the context of express concerns for child safety. But suspension--or even permanent removal--of driving duties alone does not constitute a demotion, for that employment action, alone, did not cause a change in pay or benefits.10 The weeks immediately following Rizzo's suspension of driving duties happened to coincide with CWLC's lowest period of staffing need. Rizzo fails to rebut CWLC's explanation with sufficient evidence that her reduced work hours were attributable to her loss of driving duties, rather than ordinary business fluctuations. Beyond her own bare allegation, she cites only the testimony of Myra Ryan, CWLC's director. But Ryan agreed merely with the fact that Rizzo's hours had decreased, and in fact expressly disagreed with counsel for Rizzo as to why that had occurred. And although there need not be a "decrease in pay, title, or grade" to constitute a demotion, an employee at least must show that his reassignment of duties "proves objectively worse--such as being less prestigious or less interesting or providing less room for advancement."11 "[A] 'bruised ego' is not enough."12
A reasonable juror could not conclude that the elimination of van-driving responsibilities from the duties assigned to an assistant teacher and administrative aide constitutes a demotion. There is nothing inherently prestigious or interesting or career-advancing about driving a van full of children.13 Rizzo therefore cannot makethe necessary objective showing of discriminatory demotion through her reduction in duties.
Because neither temporary suspension nor even permanent removal of driving duties alone qualifies as a demotion, and because she did not show any other disability-motivated adverse employment action, Rizzo failed to present a prima facie case of liability under the ADA. This court should therefore reverse and render judgment as a matter of law in favor of CWLC.
III.
Not only, however, does the majority look past the absence of an adverse employment action, but it also circumvents the significantly more challenging burden-of-proof issue by concluding that CWLC failed to object as required under FED. R. CIV. P. 51. The majority errs in saying that CWLC did not object and in refusing to address the validity of Rizzo I on that ground.
More importantly, as we have said, Rizzo I was incorrectly decided. Under the proper rule, the employee, not the employer, has the burden to prove that he can perform essential job functions safely notwithstanding his disability and does not thereby pose a direct threat to the health or safety of others in the workplace.
Unfortunately, we cannot rely on the text of the ADA to tell us how to assign the burden of proof, because different provisions conflict, and analogies to other federal employment discrimination laws are of limited utility. Nevertheless, under this circuit's pre-Rizzo I precedent, we have held that the rule crafted to adjudicate claims under the Rehabilitation Act applies to ADA cases as well.14 Most persuasive, however, is the fact that the rule urged by the dissent in Rizzo II offers the most practical solution to this vexing problem.
A.
To sustain an action under the ADA, an employee first must prove, as part of his prima facie case, that he is a "qualified individual with a disability." 42 U.S.C. 12112(a). In other words, he has the burden to prove that he is "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 12111(8).15 In the context of the ADA, ability to perform an essential function means, inter alia, doing so without constituting a direct threat.
Plainly, then, when discharging his burden of establishing the second element of a prima facie ADA case--qualification for the job--the plaintiff must show that, in performing each essential function, he does not pose such a threat. Where, as here, the function is (1) driving (2) a van (3) full of pre-school-age children (4) on public streets in a high-traffic urban area, an employee with a disability that has an obvious nexus to performing that job function in a safe manner must negate the threat.
True, the ADA also provides employers with the affirmative defense of showing a direct threat:
It may be a defense to a charge of discrimination . . . that an alleged application of qualification standards, tests, or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation.
12113(a). "The term 'qualification standards' may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace." 12113(b).
In other words, it is the employee's burden to prove that he is a qualified individual with a disability (which includes, in some cases, negating direct threat), and it is the employer's burden to establish that an employee poses a direct threat to the health or safety of other individuals in the workplace. These provisions, however, leave a troubling gap, one that is exposed by the facts of this case: Whose burden is it if, according to the employer, an employee is not a qualified individual because, as a result of his disability, his unsafe performance of an essential job function renders him a direct threat to others in the workplace?
On the one hand, imposing the burden on the employee requires him to prove that he is not a direct threat--a rule that appears to conflict with 12113(b), which assigns the burden, completely and without exception, to the employer to prove direct threat, and not to the employee to disprove such a threat. On the other hand, placing the burden on the employer requires it to show that the employee cannot perform an essential job function safely--a rule that conflicts with provisions of the ADA that expressly assign the burden to the employee to prove that, as a qualified individual, he can perform all essential job functions.
To place the burden on the employer is to hold--absurdly, in our view--that unsafe execution of job duties nevertheless constitutes adequate performance. This approach effectively rewrites the ADA to require an employee merely to prove his ability to "perform the essential functions of the employment position," 12111(8), without regard "to the health or safety of other individuals in the workplace," 12113(b). As a matter of statutory construction if nothing else, such a rule is untenable.
B.
Because the answer cannot be found in the statutory text, we are licensed to look to other sources for guidance. No obvious solutions appear from simply looking to other federal employment discrimination statutes. Nevertheless, this court has held that the rule governing burden of proof under the Rehabilitation Act applies also to the ADA. See Daugherty, 56 F.3d at 697-98. Rizzo I therefore is flawed as a matter of stare decisis, violating our maxim that one panel cannot overrule another.
See Ivy, 192 F.3d at 516.
Id. at 271 (Wiener, J., dissenting). See also id. at 260.
See id. at 261; id. at 271 (Wiener, J., dissenting).
The majority incorrectly attributes a reduction in Rizzo's hours -- and thus, her wages--to the suspension of her driving duties. In fact, Rizzo's wages were not reduced because of her hearing difficulties. When CWLC suspended her driving duties, CWLC simply reassigned her to perform other tasks to make up for those hours. Indeed, Rizzo never lost her status as a full-time employee, but continued to enjoy all the benefits of full-time employment.
Rizzo responds by asserting that her work hours nevertheless diminished. The dispositive issue, however, is not whether she worked less hours, but why. The record shows that it was ordinary business fluctuations resulting from the seasonal nature of daycare work--and not her loss of driving duties--that caused Rizzo to receive reduced hours.
Sharp v. City of Houston, 164 F.3d 923, 933 (5th Cir. 1999).
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998) (quoting Flaherty v. Gas Research Inst., 31 F.3d 451, 456 (7th Cir. 1994)).
Of course, our conclusion here--that the removal of driving duties does not alone constitute a constructive demotion under Sharp--does not affect our view expressed in part III hereof that, for purposes of assigning burden of proof, driving is an essential function of Rizzo's job. The former determination turns on such factors as the level of pay, prestige and challenge of work, and opportunity for career advancement. The latter, by contrast, is simply an employer's good-faith determination of what job functions are essential to a particular position. Thus, a function could be essential to the employer while not commanding extra pay and being devoid of prestige, challenge, or other objective value, the loss of which could constitute a constructive demotion.
See Rizzo II, 173 F.3d at 272-73 (Wiener, J., dissenting) (citing Daugherty v. City of El Paso, 56 F.3d 695, 697-98 (5th Cir. 1995)).
The ADA defers to an employer's determinations of the essential functions of a job. See 12111(8) ("For the purposes of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.").
See 42 U.S.C. 2000e-2(e) (title VII); 29 U.S.C. 623(f) (ADEA).
See Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228, 232 (5th Cir. 1969) (title VII); EEOC v. Univ. of Tex. Health Science Ctr., 710 F.2d 1091, 1093 (5th Cir. 1983) (ADEA).
Weeks, 408 F.2d at 235.
See 42 U.S.C. 12112(a) (prohibiting discrimination "against a qualified individual with a disability because of the disability of such individual") (emphasis added).
See 29 U.S.C. 623(a)(1) (prohibiting discrimination "against any individual . . . because of such individual's age"); 42 U.S.C. 2000e-2(a)(1) (prohibiting discrimination "against any individual . . . because of such individual's race, color, religion, sex, or national origin").
See, e.g., Sreeram v. Louisiana State Univ. Med. Ctr.--Shreveport, 188 F.3d 314, 318 (5th Cir. 1999) (holding that plaintiff "failed to establish a prima facie case of sex and/or national origin discrimination because she failed to establish that she was qualified for the position in question at all relevant times").
Chandler v. City of Dallas, 2 F.3d 1385, 1393-94 (5th Cir. 1993) (quoting Chiari v. City of League City, 920 F.3d 311, 317 (5th Cir. 1991) (quoting 29 C.F.R. 1613.702(f) (1990))).
2 F.3d at 1393 (quoting Southeastern Community College v. Davis, 442 U.S. 397, 406, 407 n.7 (1979)).
See 42 U.S.C. 12113(a)-(b).
See Daugherty, 56 F.3d at 697-98.
See 173 F.3d at 273 & n.64 (Wiener, J., dissenting).
See EEOC v. Amego, 110 F.3d 135, 144 (1st Cir. 1997) (stating that "in a Title I ADA case, it is the plaintiff's burden to show that he or she can perform the essential functions of the job, and is therefore 'qualified.' Where those essential job functions necessarily implicate the safety of others, plaintiff must demonstrate that she can perform those functions in a way that does not endanger others. There may be other cases under Title I where the issue of direct threat is not tied to the issue of essential job functions but is purely a matter of defense, on which the defendant would bear the burden."); Moses v. Am. Nonwovens, Inc., 97 F.3d 446, 447 (11th Cir. 1996) (holding that, where "[e]ach of Moses's assigned tasks presented grave risks to an employee with a seizure disorder," "[t]he employee retains at all times the burden of persuading the jury either that he was not a direct threat or that reasonable accommodations were available").
Rizzo must contend that driving a bus is an essential function of her position. If it were not, CWLC could have made an offer "she couldn't refuse" to accommodate her by replacing that non-essential function with other duties.
School Bd. v. Arline, 480 U.S. 273, 284 (1987).
See Jeffrey A. Van Detta, "Typhoid Mary" Meets the ADA: A Case Study of the "Direct Threat" Standard Under the Americans with Disabilities Act, 22 HARV. J.L. & PUB. POL'Y 849, 857-58, 860 (1999) ("The 'direct threat' standard had its genesis in litigation involving employees with contagious diseases under the Rehabilitation Act of 1973 [citing Arline]. . . . When Congress considered the legislation that became the ADA, it used Arline as a starting point for grappling with disqualification of employees due to safety risks.").
See Rizzo I, 84 F.3d at 764 ("An employee who is a direct threat is not a qualified individual with a disability. As with all affirmative defenses, the employer bears the burden of proving that the employee is a direct threat."). This statement is itself contradictory: An employee has the burden of proving that he is a "qualified individual," which he cannot be if there exists a direct threat in his performance of an essential function; therefore, at least at that stage, proof of direct threat should not be the employer's burden. Only if the employee establishes a prima facie case that includes performing each essential function safely (i.e., no direct threat in the physical performance per se) is the employer put in the position of having to advance and prove any affirmative defense, including generalized threats to health and safety from the employee's presence in the workplace.
See Rizzo I, 84 F.3d at 764 ("As with all affirmative defenses, the employer bears the burden of proving that the employee is a direct threat.").
Lang v. Texas & Pac. Ry., 624 F.2d 1275, 1279 (5th Cir. 1980).