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,1 and Daugherty v. City of El Paso,2 and the First Circuit’s explicit holding in Equal Employment Opportunity Commission v. Amego,3 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.4
I.
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 *264could 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 class room, in which her son was unable to get Rizzo’s attention despite repeatedly yelling her name.5 The parent complained to CWLC director Myra Ryan about Riz-zo’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.6
In March 1993, Rizzo gave Ryan a report from the audiologist stating that Riz-zo 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 testified *265that (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 that, “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.7 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.”8
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] discriminate against [2] a qualified individual with a disability [3] because of the disability....”9 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.10 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.11 “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.” 12
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.13 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.”14 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.” 15 The Act defines “direct threat” as meaning “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” 16
Finally, the ADA defines discrimination as including an employer’s failure to make “reasonable accommodations to the known physical or mental limitations of an other*266wise 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].17 In general, “it is the responsibility of the individual with the disability to inform the employer that an accommodation is needed.” 18 Once the employee makes such a request, “[t]he appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the qualified individual with a disability.”19
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 a reasonable accommodation, it is liable under the ADA.20 On the other hand, if the employee does not participate in the process in good faith, he is precluded from recovering from the employer.21
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.,22 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.23 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.24 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.25 We held that Taylor could not prevail on his claim,26 stating that “[w]hen the *267nature 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.” 27
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,28 the Seventh Circuit confronted an ADA claim by an employee based on her depression.29 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],” 30 the employer requested that the employee sign a release to allow it to obtain further information.31 The employee, however, neither signed the release nor attended a meeting scheduled to discuss possible accommodations.32 She subsequently brought suit, asserting that her employer had failed reasonably to accommodate 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.33
Employing identical reasoning, the Tenth Circuit held in Templeton v. Neodata Services, Inc.34 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.35
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 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 em*268ployee’s ability to perform his essential duties.36 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, the 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 reasonable accommodation.37 Moreover, although the language of the ADA does not mandate that an employer conduct a pre-termination or pre-duty restructuring investigation, it certainly encourages such investigations by requiring that an employer take no action with regard to a disabled employee based on uneducated generalizations and stereotypes.38 Indeed, the EEOC advises that “the employer must determine whether a reasonable accommodation would ... eliminate” the direct threat39 — a determination the employer will often only be able to make after investigating the employee’s capabilities and limitations.
It follows that, during the period that such an investigation is being conducted, the employer must be permitted to assign to other employees, for a reasonable period of time, those duties in which the safety of others was entrusted to the (possibly) disabled employee to other employees. If this were not so, the ADA would be requiring an employer to expose itself to potentially massive liability in an effort not to discriminate on the basis of disability.40 Even more importantly, if the ADA did not permit an employer to reassign such duties during the course of a reasonable investigation, it would be placing in harm’s way all those whose safety is entrusted to the (possibly) disabled employee. There is no evidence that Congress intended to place an employer in such a Catch-22 situation — either discriminate or endanger your business and the safety of others. To the contrary, the ADA’s clearly-announced recognition of an employer’s potential safety concerns belies such a result.
Thus, the ADA’s complementary policies of prohibiting unjustified discrimination on the basis of disability, requiring employers to rest their employment decisions on the actual capabilities and limitations of their *269employees, and permitting employers to factor into their decision-making process legitimate safety concerns dictate that an employer be permitted to remove from an employee an essential duty that necessarily places the employee in charge of the health and safety of others while the employer determines whether any threat exists.
I hasten to emphasize that an employer does not have carte blanche to take any action with regard to an employee whose alleged disability may pose a risk to the safety of others; the employer must always act reasonably under the circumstances. As underscored above, before removing a duty from an employee because of the employee’s disability, an employer must have reasonable grounds for suspecting that the employee, in fact, poses a direct threat to the health and safety of others — a fact-intensive inquiry that must be determined on a case-by-case basis. If the employer does not have such grounds, the general rule described above, preventing an employer from taking unjustified adverse employment actions against a disabled employee based on stereotypes and generalizations, applies.41
Moreover, an employer must conduct its investigation as quickly as practicable, particularly when, as here, the nature of the job is such that the employee is forced to suffer some hardship in terms of hours or pay as a result of the suspension of some of his duties. The ADA permits an employer to remove a duty from an employee while it conducts a reasonable investigation of safety risks. The ADA, however, prohibits an employer from taking an ad-' verse employment action against an employee based solely on the basis of the employee’s disability.42 Again, whether the employer abuses its right to investigate safety concerns either by impermissi-bly prolonging the investigation or by unnecessarily and unreasonably rearranging the employee’s duties during the investigation, thereby crossing the line between reasonable investigation and adverse employment action, will typically be a question of fact.
Nevertheless, when an employer acts on a reasonable concern that the employee cannot safely care for those entrusted to him in the course of his duties and removes such duties from the employee while attempting to determine whether he, in fact, poses a direct threat, the employee must cooperate with the employer’s investigation — just as the case law tells us that he must cooperate with the employer’s efforts to fashion a reasonable accommodation.43 If the employee fails to cooperate — -for example, by refusing to provide the employer with medical information about his condition when the information is uniquely within his control — he cannot recover under the ADA.44
4. Rizzo’s Claim
When I apply these standards to CWLC and Rizzo, it is clear to me that Rizzo’s ADA claims are precluded by her failure to provide CWLC with a report from her audiologist that she could safely supervise the children entrusted to her care while driving the van. First, CWLC had reasonable grounds for removing the van-driving duties from Rizzo. It had received not one but two reports that children were unable to get Rizzo’s attention even though the children were yelling her name to her.45 Given the potential risk to the children and others of a driver who might not be able to hear important aural signals or whose attention the children might not be able to get in the case of a safety crisis, CWLC *270was not unreasonable in seeking to investigate the matter further.46
Second, it was not CWLC, but Rizzo, who unreasonably delayed the investigation of the matter. Only Rizzo, in conjunction with her audiologist, could provide the medical information necessary to determine whether she posed a risk to the children.47 Rizzo, of course, did furnish CWLC with half of the information it requested — a report that she could hear the sirens of emergency vehicles. Although she testified inconsistently regarding the matter, Rizzo asserts that CWLC prevented her from providing them with the information it had requested. More specifically, Rizzo claims that additional testing regarding her ability to supervise the children “was no longer necessary.”
As an initial matter, in a situation such as this in which an employer has temporarily removed a duty from an employee because of safety concerns and the information sought by the employer is of the type that is uniquely within the employee’s ability to control, it is far from clear that a single remark to the effect that the employee need not provide the information, made after the employer has admittedly informed the employee that it is just that information that they require to reinstate the removed duty, is sufficient to support a finding that the employer prevented the employee from providing the information. Rizzo did not testify that Ryan forbade her from bringing her audiologist to observe her at work. In fact, Rizzo testified that she did not even question Ryan as to why the information was no longer needed.
Nevertheless, it not necessary to decide the issue based on this single breakdown of interaction. Rizzo admits that, in her exit interview, Adame asked what CWLC could do to keep her from quitting. At that point, because of the type of information involved, the burden was on Rizzo to provide CWLC with proof that she could drive the van and supervise the children safely. Accordingly, she — not CWLC— was required to raise the issue of further testing before quitting and seeking to recover for disability discrimination. CWLC reasonably requested specific information to determine whether Rizzo was a direct threat to the safety of the children and, then, at a minimum, reopened the door for her to provide that information at the exit interview. Rizzo, however, chose to leave her position with CWLC because she believed that CWLC would not reinstate her driving duties “even if all the tests came back to prove that [she] was qualified.” Her choice forecloses the possibility of recovering under the ADA.
Lastly, within the specific context of temporarily suspending Rizzo’s duties to investigate its legitimate safety concerns, CWLC did not unnecessarily or unreasonably rearrange Rizzo’s duties. The majority concludes that there is sufficient evidence to support the jury’s conclusion that, by removing Rizzo from van driving duties, thereby reducing her hours, and by assigning her to kitchen duty and split shift, CWLC took an adverse employment action against Rizzo. I would agree were this the typical case presenting no direct threat issue; however, if the ADA permits an employer to reshuffle an employee’s duties during a reasonable investigation of its legitimate safety concerns, the employer must be allowed temporarily to take actions that would otherwise constitute adverse employment actions. The issue is *271not whether the employer took action that negatively affects the employee’s status— e.g., reducing his hours or reassigning him to less desirable duties — it is whether the employer unreasonably and unnecessarily, took such action.
Rizzo testified that she felt stigmatized by her new duties and split schedule. She admitted, however, that they were duties shared by all CWLC employees to varying degrees and that others also worked split shifts. She further admitted that she told CWLC that she did not want to work with school-aged children. Essentially, her claim that she suffered an adverse employment action, therefore, turns solely on the fact that CWLC required that she not to drive the van until she proved she could do so safely. That, however, is exactly what the ADA permits CWLC to do. Therefore, as a matter of law, CWLC’s decision cannot constitute an adverse employment action.
CWLC had reasonable grounds for temporarily removing Rizzo from van-driving duty while it investigated whether she posed a safety risk to the children or others. CWLC did not treat Rizzo unreasonably during the investigatory period by unnecessarily diminishing her work or pay or assigning her to oppressive duties; and it was not CWLC, but Rizzo, who unnecessarily delayed the investigation. Because Rizzo failed to provide the crucial medical information to CWLC prior to quitting, she is responsible for the breakdown in the interactive process required by the ADA. She is thus precluded from recovering under that Act.
C. Direct Threat
CWLC and Rizzo disagree as to which party bears the burden on the direct threat issue. CWLC asserts that Rizzo must show that she does not pose a direct threat to herself or others to prove that she is a qualified individual with disability — as noted earlier, an essential element of her prima facie case.48 Rizzo counters that, on the contrary, it is CWLC that must prove, as an affirmative defense, that Rizzo constitutes a direct threat.
The statutory text is unclear. It provides that a “qualified individual” is one who can “perform the essential functions of [his] position.”49 An employee who cannot fulfill his duties without harming himself or others'would seem unable to perform the essential functions of his position. Moreover, as pointed out above, the ADA permits an employer to impose “qualification standards” that an individual not pose a direct threat to the health or safety of others.50 The language regarding qualification standards, however, appears in the section of the statute entitled “Defenses,” 51 muddying the waters as to which party bears the burden of proving — or disproving — the direct threat contention.
The majority concludes that not only does our holding in Rizzo I that, “[a]s with all affirmative defenses, [CWLC] bears the burden of proving that [Rizzo] is a direct threat”52 constitute the law of the case, thus deciding the burden of proof issue for the present appeal, but further that the Rizzo I holding correctly states the applicable law. The majority attempts to harmonize the ADA’s apparently conflicting requirements that both the employer and the employee prove their direct threat contentions and to explain the Rizzo I holding with the following framework: Although a plaintiff generally bears the burden of proving that he is not a direct threat to the health and safety of himself and others as *272part of his prima facie case, when an employer imposes safety standards that tend to screen out individuals with disabilities, the burden of proof on the direct threat issue shifts to the employer.
Although I agree that Rizzo I likely forecloses the burden of proof issue in this appeal53 — an issue that, in my opinion, we need not resolve because, as I set forth above, Rizzo’s claim fails at another stage of the analysis — I believe that the majority’s burden-shifting formula is both incorrect and contrary to our prior case law (at least to our prior case law othér than Rizzo I). I, therefore, conclude with my thoughts on the matter.
The first difficulty I have with majority’s proposed framework is that, when applied, the exception swallows the rule. Although the majority’s scheme assigns the burden on the direct threat issue to the plaintiff as a general matter, in practice, the defendant will always bear this burden of proof. This is so because whenever the question whether the employee poses a direct threat to himself or others arises in a case, it will necessarily raise as a concomitant the issue of the employer’s safety standards. Under the majority’s rubric, the burden of proof will then shift to the employer. In other words, simply by arguing that the employee could not perform his job safely, the employer will be deemed to have imposed a safety standard. Thus, every time the direct threat question actually comes into play, the defendant will be saddled with the burden of proof, and the general (circumvented) rule of allocating that burden to the employee will fade into the background. If, on the other hand, the defendant does not raise a defense based on safety concerns, the direct threat issue will simply lie dormant and the putative allocation of the burden of proof to the employee will be meaningless.
For example, in this case, the majority describes CWLC’s safety standard as requiring “any teacher whose responsibilities included van driving to be able to discrimi.nate spoken words.” That is certainly one component of CWLC’s general requirement that its employees perform their jobs safely; and it is, of course, the component of that general requirement implicated by Rizzo’s hearing impairment. As Rizzo claims discrimination on the basis of her hearing impairment and CWLC seeks to defend itself by reference to the safety issue, under the majority’s conception, CWLC bears the burden of proof. If, however, CWLC did not attempt to defend itself on the basis of safety concerns, Rizzo would bear the burden on an issue left entirely unaddressed by the parties. Thus, although the majority makes a valiant effort to harmonize the ADA’s various requirements, its solution, for all practical purposes (and despite the language of the majority’s articulated rule), allocates the burden of proof solely to the defendant.
Second, even if the majority’s framework did not always result in assigning the burden to the defendant, it will, if adopted, “lead to the anomalous result that there is a lesser burden of proving qualification on a plaintiff where the job involves the care of others, and necessarily entails risk to others, than when the job does not.”54 Such a result flies in the face of the ADA’s initial allocation to the plaintiff of proving that he is qualified for the position and the Act’s recognition that the employer can (and should) take into account legitimate safety concerns.
Finally, the majority’s burden-shifting scheme conflicts with the (at least implicit) holdings of our pre-Rizzo I cases, Chandler v. City of Dallas,55 and Daugherty v. City of El Paso,56 both of which involve the disability discrimination claims of insulin-dependent employee drivers. In Chan*273dler, we held that an employee was not an “otherwise qualified” driver under the Rehabilitation Act because of the risk of danger he posed to himself and others.57 En route to this conclusion, we noted that the Rehabilitation Act’s “definition of qualified handicapped individual [] includes a personal safety requirement — an otherwise qualified handicapped individual is defined as one who ‘can perform the essential functions of the position in question without endangering the health and safety of the individual or others.’ ”58 Accordingly, we assigned the burden of proof regarding the safety issue to the plaintiff as part of his prima facie case.
Building on Chandler, we similarly held in Daugherty that an insulin-dependent diabetic had not met his burden under the ADA to prove that he was an otherwise qualified driver because of the risk he posed to himself and others.59 In so doing, we noted that, like the Rehabilitation Act, “the ADA by its own terms recognizes [a] safety requirement” as an integral part of its otherwise qualified individual concept.60
In neither Chandler nor Daugherty did we address the specific argument made here by Rizzo that, under the ADA, the employer bears the burden on the direct threat issue because it is an affirmative defense. The First Circuit, however, has. In Equal Employment Opportunity Commission v. Amego,61 the First Circuit concluded that, because the Rehabilitation Act’s definition of “qualified individual” specifically addresses the safety issue and because Congress intended the ADA’s definition of “qualified individual with a disability” to track closely the definition used in the regulations implementing the Rehabilitation Act:
[I]t is the plaintiffs burden to show that he or she can perform the essential functions of the job, and is therefore “qualified.” Where those essential job functions implicate the safety of others, plaintiff must demonstrate that she can perform those functions in a way that does not endanger others.62
I believe that this conclusion is both correct and implicit in Chandler and Daugherty. By expressly modeling the ADA’s qualified individual concept after that of the Rehabilitation Act and by defining a qualified individual as an employee who can perform the essential functions of his position, Congress has provided strong evidence that it intended the employee to bear the burden, at least initially, of proving in his prima facie case that he is not a direct threat.
It is at least plausible to advance that an employee bears the burden of proving that, in performing his essential functions, he does not pose a direct threat, but that, if the employee meets this burden, the defendant can still show as an affirmative defense that the employee represents a direct threat in the performance of his non-essential duties.63 If such were the case, the ADA’s various pronouncements concerning the safety issue would not be in tension.64 It is not, however, necessary to address whether such a reading is correct here because Rizzo insists that van driving was an essential function of her job with CWLC.
*274In sum, I believe that the majority’s attempt to reconcile the ADA’s various and confusing provisions addressing the direct threat issue misses the mark, incorrectly allocating the burden of proof to the defendant either in every case in which the direct threat question is actually at issue or at least in every case in which the employee’s job involves the care of others. It seems clear to me, though, that such an allocation cannot be squared either with the Act’s requirement that the plaintiff show that he is qualified to perform his essential duties or with our prior case law.
III.
Conclusion
Based upon my thorough review of the ADA’s structure and the record in this case, I conclude that, because Rizzo failed to provide CWLC with a report from her audiologist showing that she could safely supervise the children while driving the van despite CWLC’s reasonable request for such information, Rizzo cannot prevail on her ADA claim. Rizzo’s decision to quit her job prior to providing the requested information constituted a break-down in the interactive process required by the ADA for which she was responsible. Moreover, CWLC’s temporary reassignment of Rizzo’s van driving duties while it investigated its valid safety concerns cannot constitute adverse employment decision — a necessary element of Rizzo’s prima facie case. Lastly, I am convinced that, at least as an initial matter, an employee bears the burden of proving that he does not pose a direct threat to the health and safety of others when performing his essential duties. I, therefore, respectfully dissent; I would grant CWLC’s request for a JML and reverse the verdict for Rizzo.
. 2 F.3d 1385 (5th Cir.1993).
. 56 F.3d 695 (5th Cir.1995).
. 110 F.3d 135 (1st Cir.1997).
.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.
. 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.
. 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 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.
. Burroughs v. FFP Operating Partners, L.P., 28 F.3d 543, 546 (5th Cir.1994).
. In re Letterman Bros. Energy Sec. Litig., 799 F.2d 967, 972 (5th Cir.1986).
. 42 U.S.C. § 12112(a).
. 42 U.S.C. § 12102(2).
. See Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 164 (1996).
. 29 C.F.R. § 1630.2(j), App. (1995).
. See 29 C.F.R. § 1630.2(m).
. 42 U.S.C. § 12112(b)(6).
. 42 U.S.C. § 12113(b) (emphasis added).
. 42 U.S.C. § 12111(3).
. 42 U.S.C. § 12112(b)(5)(A).
. 29 C.F.R. § 1630.9, App. (1995).
. Taylor, 93 F.3d at 164 (quoting 29 C.F.R. § 1630.9, App. (1995)).
. 42 U.S.C. § 12112(b)(5)(A).
. See infra notes 22-35 and accompanying text.
.93 F.3d 155 (5th Cir.1996).
. Id. at 159.
. Id. at 164.
. Id. at 159-60.
. Id. at 165-66.
. Id. at 165.
. 75 F.3d 1130 (7th Cir.1996).
. Id. at 1132-33.
. Id. at 1133.
. Id.
. Id.
. Id. at 1137; see also Steffes v. Stepan 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.”).
. 162 F.3d 617 (10th Cir.1998).
. Id. at 619.
.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 'are prohibited from restricting the employment opportunities of qualified individuals with disabilities on the basis of stereotypes and myths about the individual's disability. Rather, the capabilities of qualified individuals must be determined on an individualized, case by case, basis.' ”) (quoting 29 C.F.R. § 1630.5, App. (1995)); Teahan v. Metro-North Commuter R. Co., 951 F.2d 511, 515 (2d Cir.1991) ("An employer obviously may not assume that because a person has a handicap, he or she is unable to function in a given work context. Although the Act forbids discrimination based on stereotypes, an employer is entitled to make employment decisions based on 'actual attributes of the handicap.' ”).
. See 42 U.S.C. § 12113(b).
. See supra note 36.
. 29 C.F.R. § 1630.2(r), 1630.9, Interp. Guidance (emphasis added).
. As we have reiterated on several occasions in ADA cases presenting concerns over an employee's ability to drive safely, "[w]oe unto the employer who put such an employee behind a wheel of a vehicle owned by the employer which was involved in a vehicular accident.” Chandler, 2 F.3d at 1395 (quoting Collier v. City of Dallas, 798 F.2d 1410 (1986) (unpublished)). In this case, of course, the danger was not so much to other drivers as to the children entrusted to Rizzo's care.
. See supra note 36 and accompanying text.
. Rizzo I, 84 F.3d at 763.
. See supra notes 22-35 and accompanying text.
. See id.
. See supra note 5 and accompanying text.
. Cf. Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir.1995) (holding insulin-dependent driver was not otherwise qualified individual with disability under ADA); Chandler v. City of Dallas, 2 F.3d 1385 (5th Cir.1993) (same under Rehabilitation Act).
. See Taylor, 93 F.3d at 165 (“When 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. ' ’).
.See 42 U.S.C. § 12112(a); Moses v. American Nomvovens, Inc., 97 F.3d 446, 447 (11th Cir.1996) ("The 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."), cert. denied, 519 U.S. 1118 (1997).
. See 29 C.F.R. §. 1630.2(m).
. 42 U.S.C. § 12113(b).
. See 42 U.S.C. § 12113(a).
. Rizzo I, 84 F.3d at 764.
. But see infra note 64 and accompanying text.
. Amego, 110 F.3d at 144.
. 2 F.3d 1385 (5th Cir.1993).
. 56 F.3d 695 (5th Cir.1995).
. Chandler, 2 F.3d at 1395.
. Id. at 1393 (quoting Chiari v. City of League City, 920 F.2d 311, 317 (5th Cir.1991)).
. Daugherty, 56 F.3d at 697-98.
. Id. at 698.
. 110 F.3d 135 (1st Cir.1997).
. Id. at 144.
. See id. at 143-44.
. And Rizzo I's holding that CWLC has the burden of proving its affirmative defense would not necessarily foreclose the conclusion that Rizzo is also required to show that she did not pose a direct threat in the performance of her essential duties, including van driving, as part of proving that she is otherwise qualified.