Rizzo v. Children's World

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