Revised May 3, 1999
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-50367
VICTORIA RIZZO,
Plaintiff-Appellee,
VERSUS
CHILDREN’S WORLD LEARNING CENTERS, INCORPORATED, doing
business as CWLC, Incorporated,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
April 15, 1999
Before WISDOM, WIENER, and DENNIS, Circuit Judges.
WISDOM, Circuit Judge.
Children’s World Learning Center (CWLC) is a school and daycare-provider for young
children. Victoria Rizzo is a hearing-impaired woman who, until the circumstances of this lawsuit
arose, was an employee of CWLC. In 1993, Ms. Rizzo left CWLC after a substantial change in her
employment duties, and shortly thereafter filed a discrimination claim against CWLC under the
Americans with Disabilities Act (ADA) 42 U.S.C. § 12101 et seq. Rizzo asserted that she had been
demoted solely because of her hearing impairment. CWLC filed a motion for summary judgment that
the district court granted. We reversed the district court and remanded for trial in Rizzo v. Children’s
World Learning Centers, Inc.1 (Rizzo I).
At trial, the jury found that CWLC had discriminated against Rizzo because of her disability,
in violation of the ADA. CWLC appeals, assert ing the following assignments of error. (1) The
district court erred in denying CWLC’s motion for judgment as a matter of law, in that Rizzo failed
to meet her burden of proof. (2) The district court erred in denying CWLC’s motion for judgment
as a matter of law, in that defendant CWLC conclusively proved an affirmative defense, specifically
that Rizzo posed a “direct threat” to the children in her care. (3) The district court erred in denying
CWLC’s motion for a new trial, in that the verdict was against the great weight of the evidence.
(4) The charge presented to the jury contained plain error, in that it placed the burden of proof on
both parties. (5) The award of $100,000 for past and future mental anguish is clearly erroneous,
asserting that it is excessive and not supported by competent evidence or causally linked to a violation
of the ADA. CWLC seeks either judgment as a matter of law, a new trial, or a reversal as to
damages.
Appellee Rizzo now asserts that CWLC’s appeal is frivolous and seeks sanctions against the
appellant. Further, Rizzo seeks attorneys’ fees on appeal, should she be found to be the prevailing
party.
We affirm the jury verdict and award. We also find this appeal is not frivolous, and therefore
not subject to sanctions. We further award attorneys’ fees to the appellee in the amount of $20,625.
Facts
The facts of this case are ho tly disputed. This dispute led to our reversal of summary
judgment in Rizzo I. There were genuine material issues of fact that needed to be determined at trial.
1
84 F.3d 758 (5th Cir. 1996).
2
Victoria Rizzo was an administrative aid at the Children’s World Learning Center. She
suffers from a subst antial hearing impairment. Among her other duties, Rizzo regularly drove
students to and from school in a van provided by CWLC. In 1993, a parent of one of CWLC’s
students complained that her child had been unable to get Rizzo’s attention because of her hearing
disability. This parent also voiced a concern that Rizzo’s disability might prevent her from hearing
a choking child while driving a van full of small children. Shortly after this complaint, Rizzo was
removed from her van driving duties. She additionally suffered a reduction in work hours, was forced
to work a “split-shift” to make up those lost hours (working two short shifts, one in the early
morning, the other in the late afternoon), was assigned to cook meals in the Center’s kitchen, and on
several occasions worked fewer than the necessary hours to keep her benefits (though her benefits
were never, in fact, revoked). After these changes in her work assignments, Rizzo quit her job at
CWLC, and filed suit under the ADA, alleging discrimination due to her hearing disability.
Rizzo contends that the changes in her employment duties constituted a demotion based solely
on her disability. CWLC denied this charge, contending that the change in duties was a natural part
of a daycare work environment. CWLC further contends that it was necessary to remove Rizzo from
her van driving duties because she posed a direct threat to herself and the children in her care. All
of these issues were fully litigated before a jury. That jury found CWLC had violated the ADA by
discriminating against Rizzo based on her disability; that such discrimination was done with malice;
and that Rizzo was entitled to damages in the amount of $100,000 for past and future mental anguish.
CWLC timely filed this appeal.
Jurisdiction
The dist rict court had jurisdiction of this federal question litigation under Title I of the
3
Americans with Disabilities Act. 42 U.S.C. § 12101 et seq. This court has jurisdiction over a direct
appeal arising from such litigation.
Burden of proof and judgment as a matter of law
We shall address the appellant’s first two assignments of error together. CWLC first contends
that the district court erred in denying appellant’s motion for judgment as a matter of law, asserting
that Rizzo failed to meet her burden of proof. CWLC next contends that the district court erred in
denying the motion for judgment as a matter of law in that CWLC conclusively proved that Rizzo
posed a “direct threat” to the children in her care, an affirmative defense to an allegation of
discrimination.
As these two assignments of error intertwine around the issue of the burden of proof, we shall
address them together. The question is twofold: first, did Rizzo pose a direct threat to the children
in her care; second, is it CWLC’s burden to prove she was a threat, or is it Rizzo’s burden to prove
she was not? At first glance both the caselaw from the different federal circuits and the federal
regulations themselves appear to be in conflict.
CWLC maintains that Rizzo, as a plaintiff, must prove that she is “a qualified individual with
a disability,” pursuant to 42 U.S.C. 12112(a). CWLC also maintains that, as part and parcel of
proving she is a qualified individual with a disability, Rizzo must prove that she does not pose a direct
threat to the health or safety of herself or others. In support of this contention, CWLC points to a
holding of the Eleventh Circuit, stating that “the employee retains at all times the burden of
persuading the jury... that he was not a direct threat.”2 In so holding, the Eleventh Circuit relied upon
a provision of the Interpretive Guidance to 29 CFR 1630.2(r). This states: “An employer may
2
Moses v. American Nonwovens, Inc. 97 F.3d 446, 447 (11th Cir. 1996).
4
require, as a qualification standard, that an individual not pose a direct threat to the health or safety
of himself/herself or others” (emphasis added). As this “qualification standard” obviously goes to the
isssue of whether plaintiff is a “qualified individual with a disability,” the burden of proof would
apparently fall on the plaintiff.
Appellee Rizzo responds that CWLC as the defendant bears the burden of proving “direct
threat” as an affirmative defense. In support of this position, Rizzo cites our own statement in Rizzo
I, that “as with all affirmative defenses, the employer bears the burden of proving that the employee
is a direct threat”. Just as the Eleventh Circuit’s holding in Moses was based on the Interpretive
Guidance to the Code of Federal Regulations, so too was our holding in Rizzo I. Specifically, that
“with regard to safety requirements that screen out or tend to screen out an individual with a disability
or a class of individuals with disabilities, an employer must demonstrate that the requirement, as
applied to the individual, satisfies the “direct threat” standard.” Interpretive Guidance to 29 CFR
1630.15 (b) & (c).3 Rizzo contends that this is law of the case, and dispositive of the issue of burden
of proof. We agree. Further, we find that upon a thorough reading of the caselaw and the
regulations, there is, in fact, no conflict at all.
The law of Rizzo I, putting the burden of pro of on the defendant, applies only in cases
concerning “safety requirements that screen out or tend to screen out an individual with a disability
or a class of individuals with disabilities.”4
In the instant case, the record reflects that CWLC demoted Rizzo based on what they
perceived to be her inability to hear a choking child while driving a van full of children. Upon this
3
See Rizzo I at 764.
4
Id.
5
Court’s observation that there is no evidence that a choking child even makes a sound, CWLC
amended its position, now contending that Rizzo’s true “direct threat” to the safety of the children
lay in her inability to distinguish spoken words and specific sounds. The record is replete with
evidence that Rizzo heard the word “death” as “luck,” the word “pain” as “chain,” and so forth.5 In
other words, the safety requirement instituted by CWLC was that any teacher whose responsibilities
included van driving be able to discriminate spoken words. This is obviously a safety requirement
which tends to screen out a class of individuals with hearing disabilities. In such a case, the
defendant now bears the burden of proof t hat the employee poses a direct threat to the health or
safety of herself or others.6
We therefore agree with the Eleventh Circuit that the burden of proof is on the plaintiff to
prove that, as a qualified individual, she is not a direct threat to herself or others. We disagree with
the Moses opinion only insofar as that opinion allows for no exceptions to this rule. (The employee
retains the burden at all times...” Moses at 447)(emphasis added). We hold that, in accord with the
federal regulations, when a court finds that the safety requirements imposed tend to screen out the
disabled, then the burden of proof shifts to the employer, to prove that the employee is, in fact, a
direct threat.
Working now with an understanding that, in the case at bar, defendant-appellant CWLC has
the burden of proof, we may fully address their assignments of error. Di d the district court err in
5
See Defendant’s Exhibit 51, p.55
6
For example, had CWLC instituted a “safety requirement” that any teacher whose
responsibilities included van driving also be a state-certified teacher with a minimum of a bachelor’s
degree in education, the burden in such a case would remain on the plaintiff to prove that she is not
a direct threat. It is the nature of the safety requirement itself, and whether it tends to screen out the
disabled, that determines if the burden of proof should shift to the defendant.
6
denying the motion for judgment as a matter of law? We view the evidence in the light most
favorable to the non-movant, and ask, could a reasonable juror have found for the plaintiff?7
To prevail under the ADA, the plaintiff must prove three things: (1) she has a disability; (2)
she is an otherwise qualified employee; and (3) she suffered an adverse employment decision solely
because of her disability.
Both parties have stipulated that Rizzo suffers a disability.
Was Rizzo an otherwise qualified employee? CWLC contends that Rizzo could not safely
drive the school van, and that she was therefore not qualified. We have already established that the
burden of proof that Rizzo constituted a direct threat falls on the appellant. Again, the issue is
intertwined with CWLC’s assertion that it proved, as a matter of law, that Rizzo was a direct threat
to others. We disagree. There is no evidence in the record that Rizzo ever had any problems driving
the van. There is no evidence of a previous accident, or even a previous near-miss. There is no
evidence that her disability resulted in her being distracted from her driving duties. CWLC points out
that, as Rizzo would be unable to hear the children in the van, she would have to rely on the
additional mirrors placed in the van for visual clues as to the children’s safety. CWLC contends that
this would tend to distract Rizzo, and could result in an accident. There is no evidence that the
mirrors were placed in the van to accom odate Rizzo. These mirrors were there so that any van
driver, with or without a disability, could check on the children visually. This was a necessary step
since it would be enormously difficult for anyone to distinguish words in a van filled with up to two
dozen children.
With regard to her other duties, there is no evidence Rizzo was not qualified. As an
7
Boeing Co. v. Shipman 411 F.2d 365, 374 (5th Cir. 1969)(en banc).
7
administrative assistant she appears to have completed successfully all her other duties, including
answering the telephone, despite her hearing loss. CWLC’s only problem with Rizzo appears to have
been what they perceived as a potential threat in the area of van driving.
Finally, Rizzo must prove that she suffered an adverse employment decision solely because
of her disability. CWLC contends that Rizzo suffered no adverse employment decision. They blame
the reduction in Rizzo’s work hours on the seasonal nature of daycare work. They point out that
other teachers shared in the cooking duties along with Rizzo. They contend that Rizzo’s change in
duties was based on her own request not to be alone in the classroom with children for an extended
period. In short, CWLC contends that Rizzo was never demoted.
Viewing the evidence in the light most favorable to the appellee, we must disagree. Rizzo’s
hours were reduced, resulting in lost wages. To compensate for the reduction, Rizzo was forced to
work a split-shift of early mornings and late afternoons. Even with the split-shift she was not
working enough hours to keep her full benefits package (though we recognize that she never actually
lost her benefits). She was removed from her duties as the van driver, and sent to work in the
kitchen. The cook replaced her as the van driver. In the light most favorable to Rizzo, a reasonable
juror could clearly find she was demoted.
While not conceding a demotion, CWLC argues that, in the alternative, the record will clearly
show such a demotion was not based solely on her disability. CWLC re-urges its previous arguments:
that the work was seasonal; that everyone cooked; that Rizzo asked not to perform certain duties.
Mainly, CWLC asserts that driving the van was not an essential part of Rizzo’s duties, so suspending
her fro m van driving was not a demotion based on her disability. We disagree. Rizzo’s duties
included driving the van every day. We remind CWLC, and all appellants, that a motion for
8
judgment as a matter of law does not require this Court to decide which side has the better of the
case. “It is the function of the jury as the traditional finder of the facts, and not the Court, to weigh
conflicting evidence.”8 Clearly, a reasonable juror could conclude that driving the van was an
essential part of Rizzo’s job, and CWLC offers no grounds for her suspension from that duty other
than her disability.
CWLC’s final argument is that this Court should recognize the “unique circumstances” of this
case, and adopt an equally unique “balancing test” to fit the facts of the case. CWLC contends that
a school and daycare facility must make the protection of the children their primary concern. With
that in mind, they propose that this Court determine whether CWLC “properly balanced the need to
protect the children in its care and Rizzo’s interest in continued employment at the Learning Center”.9
We decline to adopt such a balancing test. We recognize CWLC’s interest in protecting the children
in their care. We must also recognize that the evidence produced at trial shows only speculation as
to the threat that could be posed by an employee with a disability who had been safely doing her job
for two years.
Congressional intent with regard to the ADA is clearly spelled out: “To provide a clear and
comprehensive national mandate for the elimination of discrimination against individuals with
disabilities.”10 Had Congress intended this Court t o apply a balancing test in evaluating a
discrimination claim, the Code of Federal Regulations would have made that plain. Yet CWLC
provides us with no statutory authority for the test they propose. As such a test has no basis in either
8
Id.
9
Appellant’s Brief at page 23.
10
28 U.S.C. 12101 (b)(1).
9
the regulations or the caselaw, and is not mandated by the interests of justice, we decline to adopt
such a test.
Having reviewed the record in the light most favorable to Rizzo, we conclude that a
reasonable jury could have found for the plaintiff, and affirm the trial court’s denial of the amended
motion for judgment as a matter of law.
Motion for a new trial
Appellant CWLC alternatively argues that the verdict of liability was against the great weight
of the evidence, and that the district judge abused his discretion in denying the motion for a new trial.
The arguments of the parties concerning this assignment of error are identical with those
made regarding judgment as a matter of law, and need not be rehashed in detail here. After viewing
the evidence in the light most favorable to Rizzo, we cannot conclude that the district judge abused
his discretion in denying the motion for a new trial.
The jury charge
As we have noted throughout this opinion, the law regarding the burden of proof on the issue
of “direct threat” appears to have been in conflict until now. CWLC now asserts as error that the
district court mistakenly assigned the burden of proof of “direct threat” to both parties. CWLC
further contends that by doing so, the district court caused substantial prejudice to the parties.
CWLC concedes in their brief that they failed to raise this issue before the district court, and
now raise it for the first time on appeal.11 Because the error is raised for the first time on appeal, we
review for plain error affecting substantial rights of the parties, reversing only if the error would
11
Appellant’s Brief at page 35.
10
“seriously affect the fairness, integrity, or public reputation of judicial proceedings”.12
First we examine if there was error in the district court’s charge. The district court properly
assigned to Rizzo the burden of proving she was a “qualified individual with a disability”. In defining
that phrase, the court instructed that “the phrase... describes a person who, with or without
reasonable accomodation, can perform the essential functions of the employment position that the
plaintiff holds or desires and who does not pose a “direct threat”to the health or safety of herself or
others”.13
In the very next charge, the court further instructed the jury that “the defendant has asserted
that the plaintiff was removed from driving the school van because her employment as a school van
driver posed a “direct threat” to the health or safety of herself or others. (The court then defined
“direct threat” concluding with the following:) The defendant has the burden to prove by a
preponderance of the evidence that a direct threat exists.”14 The instructions, like the caselaw and
the regulations, appear to conflict.
As we have noted before, however, “few jury charges in cases of complexity will not yield
error if pored o ver, lo ng after the fact, in the quiet of the library --- if such an enterprise is to be
allowed. It is not.”15 Appellant’s failure to raise this issue before the district court leaves CWLC with
the demanding standard of an error which would “seriously affect the fairness, integrity, or reputation
12
United States v. Olano, 507 U.S. 725, 736 (1993).
13
Record at 601.
14
Record at 602.
15
Highlands Ins. v. National Union Fire Ins., 27 F.3d 1027, 1032 (5th Cir. 1994)
11
of judicial proceedings”.16 We find the conflicting charges do not meet this standard. “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.”17 We find no such exceptional circumstances here.
Damages
Appelant CWLC’s final contention is that a damage award of $100,000 for past and future
mental anguish is excessive in view of the record. We overturn such an award only upon a finding
that the amount awarded is “clearly erroneous”.18
CWLC suggests that the district court’s finding that Rizzo suffered $182 in lost wages is an
indication that $100,000 for past and future mental anguish is excessive. The $100,000 award may
be generous in relation to the lost wages, yet mental anguish is an actual compensatory damage. We
note that the jury, having found CWLC acted wit h malice, could have further inflicted punitive
damages on the appellant, and chose not to do so. In short, we cannot say that an award of $100,000
for mental anguish resulting from malicious discrimination in violation of the ADA is enough to
“shock the conscience” of this Court.19
Appellee’ contentions
Having found in favor of the appellee on both liability and damages, we must now address
appellee’s contention that CWLC’s appeal is frivolous, and should result in sanctions. This appeal
16
Olano at 736.
17
Highlands Ins. v. National Union Fire Ins. 27 F.3d 1027, 1032 (5th Cir. 1994) quoting
Peveto v. Sears, Roebuck, & Co. 807 F.2d 486, 489 (5th Cir 1987).
18
Hernandez v. M/V Rajaan 841 F.2d 582, 587, rehearing denied en banc 848 F.2d 498 (5th
Cir. 1988).
19
Smith v. Piedmont Aviation, Inc. 567 F.2d 290, 292 (5th Cir. 1978).
12
is far from frivolous. Rizzo correctly points out that our prior holding in Rizzo I stated the law of
the case as to certain issues raised again on this appeal. The most notable issue raised concerns the
burden of proof of “direct threat”. CWLC appears to have relied in good faith on what they felt to
be conflicting caselaw from the Eleventh Circuit, and we will not penalize the appellant for bringing
this issue before the Court.
As a prevailing party in a suit filed under the ADA, Rizzo is entitled to the attorneys’ fees
awarded by the district court.20 Additionally, “a long and consistent line of Fifth Circuit precedent
allows awards of attorneys’ fees for both trial and appellate work”.21 At oral argument, counsel for
Rizzo asserted that each partner had worked 75 hours on this appeal. Counsel further stated that the
district court had ordered attorneys’ fees in the amount of $175 an hour for senior counsel, and $100
an hour for junior counsel. On that basis, we determine that Rizzo is entitled to attorneys’ fees in the
amount of $20,625. These fees are to be paid by CWLC.
The judgment of liability and the award of damages are AFFIRMED. Attorneys’ fees are
awarded in accord with this opinion.
20
42 U.S.C. 12117 and 42 U.S.C.2000e-5(k).
21
Norris v. Hartmax Specialty Stores, Inc. 913 F.2d 253, 257 (5th Cir. 1990).
13
WIENER, Circuit Judge, dissenting:
Because I believe that Ms. Rizzo’s failure to provide the Children’s World Learning Center’s,
Inc. (“CWLC”) with a report from her audiologist demonstrating that she could safely supervise the
children entrusted to her care while driving a van constituted a breakdown in the interactive process
required under the ADA sufficient to preclude her claims under that Act, I respectfully dissent.
Moreover, although I applaud the majority’s attempt to reconcile Congress’ confusing and at least
potentially conflicting commands regarding which party bears the burden of proving whether the
plaintiff poses a direct threat to the health or safety of herself or others, I am constrained to disagree.
I believe that, consistent with this Circuit’s implicit holdings in Chandler v. City of Dallas,22 and
Daugherty v. City of El Paso,23 and the First Circuit’s explicit holding in Equal Employment
Opportunity Commission v. Amego,24 when an employee plaintiff is responsible for ensuring the
safety of others entrusted to her care as part of her essential job duties, she bears the initial burden
of proving that she can perform those duties in a way that does not endanger others. If she cannot
sustain this burden, she cannot show that she is an “otherwise qualified individual with a disability,”
an indispensable element of her prima facie case.25
I.
22
2 F.3d 1385 (5th Cir. 1993).
23
56 F.3d 695 (5th Cir. 1995).
24
110 F.3d 135 (1st Cir. 1997).
25
As we noted in Rizzo v. Children’s World Learning Centers, Inc., 84 F.3d 758 (5th Cir.
1996) (Rizzo I), to prevail on her ADA claim, Rizzo must prove that (1) she has a disability; (2) she
was qualified for the job; and (3) an adverse employment decision was made solely because of her
disability. Id. at 763.
Facts
As the majority opinion sets forth the factual background of this case, I will only briefly revisit
that terrain, placing particular emphasis on the CWLC and Rizzo’s interaction regarding the need for
a report from Rizzo’s audiologist certifying that she could safely monitor the children while driving
the van. Rizzo began working at CWLC as an assistant teacher in March 1991, instructing four and
five year olds. She has a hearing impairment that requires the use of hearing aids, of which she
informed CWLC when she first applied for a position. Her duties at CWLC included assisting in the
classroom, doing administrative paperwork, and driving children in the CWLC van.
In February 1993, a parent of one of CWLC’s students observed an incident in a classroom,
in which her son was unable to get Rizzo’s attention despite repeatedly yelling her name.26 The
parent complained to CWLC director Myra Ryan about Rizzo’s being left alone with children and
expressed concern over Rizzo’s ability to drive the van safely. When Ryan advised Rizzo of the
complaint and discussed it with her, Rizzo admitted that she had experienced further hearing loss over
the course of her employment with CWLC and was scheduled to see her audiologist. Ryan asked
Rizzo whether her hearing loss would prevent her from hearing emergency sirens or a choking child
in the back of the van. Rizzo responded that she could hear sirens, but that she did not know if she
could hear a choking child. Following this meeting, Ryan temporarily removed Rizzo from her
driving responsibilities until Rizzo could provide confirmation from an audiologist that she could (1)
hear emergency vehicle sirens, and (2) safely supervise children while driving a van.27
26
This was, in fact, the second complaint by a parent stemming from Rizzo’s inability to hear
a child who was attempting to get her attention.
27
Rizzo contends that CWLC’s argument that a parent’s complaint prompted her removal was
fabricated. She bases this assertion on the fact that, in writing a letter to CWLC documenting the
15
In March 1993, Rizzo gave Ryan a report from the audiologist stating that Rizzo could hear
emergency vehicles; however, the report failed to address Rizzo’s ability to supervise the children
while driving the van. Ryan again told Rizzo that CWLC would need confirmation that she could do
so safely before again permitting her to drive the children. Ryan then gave Rizzo an “Essential Job
Function” list for a teacher (not an administrative assistant) and asked her to have an audiologist
evaluate whether she could perform the functions. The list did not specifically mention van driving,
but it did state that the employee must be able to assist and supervise the children “in all activities.”
Moreover, Rizzo was, of course, aware that her ability to drive the van safely was at issue.
Rizzo presented the list not to her audiologist, but to Patricia Cuthirds, an employee of the
Texas Rehabilitation Commission, who has no training in audiology. Cuthirds stated that she needed
to observe Rizzo at work to determine whether she could perform the functions listed, and Rizzo so
informed Ryan. Neither Cuthirds nor an audiologist ever observed Rizzo at work and no further
report on Rizzo’s ability to hear a choking child or otherwise supervise the children while driving the
van was ever sent to CWLC, although there is some disagreement as to why not. CWLC contends
that Rizzo purposefully delayed in obtaining the audiologist’s on-site evaluation. Cuthirds testified
that she was told by Rizzo that she did not want Cuthirds to observe her because she did not want
to “rock the boat.” Furthermore, CWLC employees testified that they emphasized to Rizzo that she
could bring in her audiologist to work to observe her. In contrast, Rizzo testified both that she told
Cuthirds “not to worry about” coming to observe her but that she would check into the need to do
so, and that Ryan told her that the additional testing “was no longer necessary.” Rizzo further
incident, the parent described it as occurring in May 1993, rather than in February 1993. Rizzo
admits, however, that in her February 1993 conversation with Ryan, after which Ryan removed her
from van driving duties, Ryan informed her of the complaint.
16
testified that (1) she did not know why Ryan would have told her that she no longer needed to get
additional testing, and (2) she never asked Ryan why such would be the case or followed up this
conversation in any way.
Rizzo resigned from her position with CWLC in May 1993. In the exit interview, Claudia
Adame, Ryan’s immediate supervisor, asked Rizzo what CWLC could do to keep her with them.
Rizzo responded that “nothing could be done” and that her “mind had been made up.” She testified
at trial that she had determined t hat, “even if all the tests came back to prove that [she] was
qualified,” she did not believe that CWLC would reinstate her driving duties. Rizzo brought the
present suit later that month.
II.
Merits
A. Standard of Review
We review de novo the denial of a motion for judgment as matter of law (“JML”), viewing
all evidence in the light most favorable to the non-moving party.28 The decision to grant JML “is not
a matter of discretion, but a conclusion of law based upon a finding that there is insufficient evidence
to create a fact question for the jury.”29
B. ADA’s Interactive Process
1. Statutory Structure
To understand why I believe Rizzo’s claim fails, it is necessary to review the basic outlines
of the ADA’s statutory framework. Under the Act, the general rule is that an employer shall not “[1]
28
Burroughs v. FPP Operating Partners, L.P., 28 F.3d 543, 546 (5th Cir. 1994).
29
In re Letterman Bros. Energy Sec. Litig., 799 F.2d 967, 972 (5th Cir. 1986)).
17
discriminate against [2] a qualified individual with a disability [3] because of the disability . . . .”30
Addressing these requirements in reverse order, a “disability” includes a physical or mental
impairment that substantially limits one or more of an individual's major life activities.31 CWLC grants
that Rizzo’s hearing impairment constitutes a disability. It is important to note, however, that the
ADA requires employers to accommodate limitations, not disabilities.32 “The determination of
whether an individual has a disability is not necessarily based on the name or diagnosis of the
impairment the person has, but rather on the effect of that impairment on the life of the individual.”33
With regard to the second requirement, a qualified individual is one who can perform the
essential functions of the job held with or without reasonable accommodation.34 The ADA, however,
permits an employer to impose qualification standards that tend to screen out the disabled so long as
those standards are shown to be “job- related” and “consistent with business necessity.”35 Such
qualifications 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.”36 The Act defines “direct threat” as
meaning “a significant risk to the health or safety of others that cannot be eliminated by reasonable
30
42 U.S.C. § 12112(a).
31
42 U.S.C. § 12102(2).
32
See Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 164 (1996).
33
29 C.F.R. 1630.2(j), App. (1995).
34
See 29 C.F.R. § 1630.2(m).
35
42 U.S.C. § 12112(b)(6).
36
42 U.S.C. § 12113(b) (emphasis added).
18
accommodation.”37
Finally, the ADA defines discrimination as including an employer’s failure to make “reasonable
accommodations to the known physical or mental limitations of an otherwise qualified individual with
a disability . . . unless such [employer] can demonstrate that the accommodation would impose an
undue hardship on the operation of the business of such [employer] . . . .”38 In general, “it is the
responsibility of the individual with the disability to inform the employer that an accommodation is
needed.”39 Once the employee makes such a request, “[t]he appropriate reasonable accommodation
is best det ermined through a flexible, interactive process that involves both the employer and the
qualified individual with a disability.”40
Thus, once an accommodation is properly requested, the responsibility for fashioning a
reasonable one is shared between the employee and employer. This is only logical, as an employee
will typically have better access to information concerning his limitations and abilities whereas an
employer will typically have better access to information regarding possible alternative duties or
positions available to the disabled employee. Fitting these two halves into a whole, the employer and
employee can work together to determine how best to restructure the employee’s duties and work
place in a manner that accommodates the employee’s limitations but does not pose an undue hardship
on the employer. If, at the end of this process, the employer fails to provide the disabled employee
37
42 U.S.C. § 12111(3).
38
42 U.S.C. § 12112(b)(5)(A).
39
29 C.F.R. § 1630.9, App. (1995).
40
Taylor, 93 F.3d at 164 (quoting 29 C.F.R. § 1630.9, App. (1995)).
19
a reasonable accommodation, it is liable under the ADA.41 On the other hand, if the employee does
not participate in the process in good faith, he is precluded from recovering from the employer.42
The Act, therefore, (1) requires an employer reasonably to accommodate known limitations
stemming from a disability; (2) permits an employer to take into account safety risks posed by such
limitations; and (3) envisions an interactive process between the employer and the employee both at
the initial stage when the employee must inform the employer of his disability and any limitations
stemming therefrom and request an accommodation, and at the reasonable accommodation stage
when the employer and employee must work together to determine how best to accommodate such
limitations.
2. Requirement that Employee Participate in ADA’s Interactive Process in Good Faith
As CWLC asserts that it is not liable to Rizzo under the ADA because Rizzo failed to help
CWLC determine what, if any, limitations she experienced as a result of her hearing loss, it is the third
aspect of the statutory scheme in which we are interested. In Taylor v. Principal Financial Group,
Inc.,43 we considered a situation very similar to that of the present suit. There, an employee brought
an ADA claim, in which he asserted that his employer had failed reasonably to accommodate his
bipolar disorder mental disability.44 Although the employee alerted his employer that he suffered a
bipolar disorder, he did not identify any limitations that he experienced as a result of the condition.45
41
42 U.S.C. § 12112(b)(5)(A).
42
See infra notes 22-35 and accompanying text.
43
93 F.3d 155 (5th Cir. 1996).
44
Id. at 159.
45
Id. at 164.
20
To the contrary, the employee told his supervisor that he was “all right” and that he would be able
to meet, and likely exceed, the goals that had been set for him.46 We held that Taylor could not
prevail on his claim,47 stating that “[w]hen the nature of the disability, resulting limitations, and
necessary accommodations are uniquely within the knowledge of the employee and his health-care
provider, a disabled employee cannot remain silent and expect his employer to bear the initial burden
of identifying the need for, and suggesting, an appropriate accommodation.”48
The Seventh and Tenth Circuits have similarly held that an employee cannot prevail on his
ADA claim if his failure to provide medical information prevented his employer from fashioning a
reasonable accommodation. In Beck v. University of Wisconsin Board of Regents,49 the Seventh
Circuit confronted an ADA claim by an employee based on her depression.50 After the employee
supplied her employer with a letter from her doctor stating that she “may require some reasonable
accommodation so that she does not have a recurrence of this condition [the depression],”51 the
employer requested that the employee sign a release to allow it to obtain further information.52 The
employee, however, neither signed the release nor attended a meeting scheduled to discuss possible
46
Id. at 159-60.
47
Id. at 165-66.
48
Id. at 165.
49
75 F.3d 1130 (7th Cir. 1996).
50
Id. at 1132-33.
51
Id. at 1133.
52
Id.
21
accommodations.53 She subsequently brought suit, asserting that her employer had failed reasonably
to acco mmodate her disabilities. The Seventh Circuit held that, by refusing to sign the medical
release form or provide the University with sufficient information about her medical conditions, Beck
was responsible for the breakdown in the interactive process envisioned by the ADA and thus could
not prevail on her ADA claim.54
Employing identical reaso ning, the Tenth Circuit held in Templeton v. Neodata Services,
Inc.55 that an employee who had refused to provide her employer with certification from her physician
that she was physically able to perform the essential duties of her position following an automobile
accident in response to the employer’s reasonable request for such information was precluded from
recovering under the ADA.56
3. Interactive Process and Employer’s Legitimate Safety Concerns
In the present case, CWLC too requested that Rizzo provide them with certification that she
could perform a function —— safely transporting the children in the van —— that Rizzo admits ——
more accurately, insists —— constituted an essential function of her position. The suit, however,
diverges somewhat from the above-examined cases in that Rizzo complains not that CWLC failed to
reduce or restructure her duties to accommodate limitations she suffers as a result of her hearing loss,
but rather that CWLC impermissibly reduced and restructured her duties based on stereotypes and
53
Id.
54
Id. at 1137; see also Steffes v. Stephan Co., 144 F.3d 1070, 1073 (7th Cir. 1998) (“Because
[employee] failed to hold up her end of the interactive process by clarifying the extent of her medical
restrictions, [employer] cannot be held liable for failing to provide reasonable accommodations.”).
55
162 F.3d 617 (10th Cir. 1998).
56
Id. at 619.
22
generalizations. Thus, whereas in Taylor, Beck, and Templeton, the question of the employer’s
liability centered on what the employer had failed to do, here the question of CWLC’s liability hinges
on what CWLC actually did.
This is a potentially significant distinction. The ADA does not permit an employer to make
adverse employment decisions based solely on the fact that an employee has a disability without
determining that the disability affects the employee’s ability to perform his essential duties.57
Generally, then, an employer must investigate before acting —— that is, before restructuring the
employee’s duties in a way that might constitute an adverse employment decision —— rather than
the reverse, as CWLC did here. Nevertheless, this general rule must give way in a situation in which
the employee’s job necessarily entails ensuring the safety of others and the employer has reasonable
grounds for believing that the employee’s disability might jeopardize his ability to perform that safety
function adequately.
Such a result flows not only from the structure of the ADA, but from common sense as well.
As stated above, burden of proof issues aside, t he ADA permits an employer to require that an
employee not pose a direct threat to the health or safety of others that cannot be eliminated by
57
See Taylor, 93 F.3d at 164 (Policy that employers must not presume that disabled employee
suffers limitations is “supported by E.E.O.C.’s interpretive guide: employers