McKenzie v. Benton

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 9 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
TENTH CIRCUIT Clerk

LORRAINE “JADE” McKENZIE,

Plaintiff - Appellant,
v.
No. 02-8024
MARK BENTON, IN HIS OFFICIAL
CAPACITY AS SHERIFF OF
NATRONA COUNTY,

Defendant - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. No. 98-CV-289-D)

Bernard Q. Phelan, Phelan-Watson Law Office, Cheyenne, Wyoming, for Appellant.

Peter J. Young (Rick L. Koehmstedt with him on the brief), Schwartz, Bon, Walker &
Studer, Casper, Wyoming for Appellee.

Before HENRY, HOLLOWAY and MURPHY, Circuit Judges.

HOLLOWAY, Circuit Judge.

This case is brought under the Americans with Disabilities Act (ADA). The

district court initially granted summary judgment for defendant, but following a reversal

and remand by this court earlier, McKenzie v. Dovala, 242 F.3d 967 (10th Cir. 2001), the

case was tried before a jury. The jury returned a verdict for the defendant and McKenzie
again appeals.

I

PROCEDURAL HISTORY

Plaintiff Lorraine “Jade” McKenzie sued Sheriff David Dovala in his official

capacity as Sheriff of Natrona County, Wyoming, alleging she was refused employment

as a police officer because of her disability, in violation of the Americans with

Disabilities Act (ADA). The United States District Court of the District of Wyoming

exercised original jurisdiction over this cause under 28 U.S.C. § 1343 (4) and 28 U.S.C. §

1331 since it had presented to it a claim under the ADA, 42 U.S.C. 12101 et. seq. This

court has appellate jurisdiction pursuant to 28 U.S.C. §1291.

The District Court initially granted summary judgment for the defendant. We

exercised jurisdiction on appeal under 28 U.S.C. §1291, reversed that summary judgment,

and remanded the case for trial. In the interim, Sheriff Dovala was succeeded by

defendant Sheriff Mark Benton, the current sheriff.

As mandated by this court, the issues considered by the jury were whether

McKenzie was qualified for a position within the Natrona County Sheriff’s Office;

whether she had a record of impairment or whether defendant regarded her as

substantially limited in her ability to perform a class of jobs; and whether the defendant

discriminated against her on the basis of her record. The jury returned a verdict for the

defendant. They found that McKenzie was “disabled” under the law, that she was

otherwise qualified, and that the defendants had “discriminated” against her because of

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disability. However, they also found that she posed a “direct threat” to the health and

safety of herself and her co-workers. Because McKenzie posed such a “direct threat,” the

jury found she was therefore not qualified to be a peace officer.

Judgment on the jury verdict in favor of the defendant was entered on February 21,

2002. The notice of appeal was filed on February 27, 2002 and is therefore timely under

Fed. R. App. P. Rule 4(a)(1).

II

STATEMENT OF FACTS

McKenzie was a deputy sheriff with the Natrona County Sheriff’s Office in

Casper, Wyoming for ten years. During this time she reached the rank of sergeant,

performing the duties of shift supervisor and never had a negative performance

evaluation. Beginning in early 1996, McKenzie suffered from a variety of psychological

afflictions, including post-traumatic stress disorder (PTSD) related to childhood sexual

abuse by her father. As her condition worsened, she began to miss work frequently.

On August 15, 1996, McKenzie fired six rounds from her off-duty revolver into

the ground at her father’s grave. The next day, Sheriff Dovala placed her on

administrative leave and told her she would have to undergo a psychological evaluation

by Dr. Robert Wihera, Ph.D., before she could return to duty. In the weeks that followed,

McKenzie suffered serious self-inflicted wounds and drug overdoses requiring several

hospital visits. On September 30, 1996, Dr. Arlene Viray, McKenzie’s psychiatrist, wrote

a letter to then Undersheriff Benton, stating that McKenzie’s return to her previous

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position might be hazardous to McKenzie and to the public and that further extensive

evaluation is necessary. This letter was never withdrawn by Dr. Viray. After being told

that her leave pay was exhausted, McKenzie resigned voluntarily in October 1996 to seek

psychological care. She was assured that she would be considered for re-employment for

any openings in the Department in the future.

In late November of 1996, after a course of medication and therapy, McKenzie

was released by her supervising psychiatrist, Dr. Viray. Before her resignation and before

seeing Dr. Viray, McKenzie had seen Darlene Bayu, a licensed counselor. After Dr.

Viray sent the Sheriff a letter stating that McKenzie’s condition had improved sufficiently

so that she could return to work, McKenzie immediately sought re-employment at the

Sheriff’s Office and was assured that her application would be considered if openings

became available.

It should be noted that Dr. Viray stated that this letter said nothing about future

work performance or disability nor does it document any testing or evaluation. Dr. Viray

testified at trial that she could not state that McKenzie is able to return to her prior duties

because she has no idea what those duties are or what the essential functions of

McKenzie’s job are. In addition, Dr. Viray stated that McKenzie’s PTSD does not have a

linear progression, but rather is an episodic/crisis type condition, where there are peaks

and valleys and no way to identify when McKenzie might experience problems again.

Dr. Viray testified at trial that there are no guarantees McKenzie could return to work and

she had no opinion whether McKenzie was a direct threat to herself or her fellow officers.

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 McKenzie’s application for employment was rejected at all the agencies to which

she applied throughout Wyoming and Nevada. Unable to find work in law enforcement

anywhere in the area, McKenzie returned to the Sheriff’s Office in October 1997 and

asked to be considered for a position as a patrol officer or any other job in the department.

Sheriff Dovala told McKenzie that he was unwilling to consider her application, even if

she passed a psychological evaluation, and admitted that the Office was reluctant to hire

her because of “liability” concerns and fear of public uneasiness related to her past

illness. Sheriff Dovala said that members of his staff told him that “based upon what they

knew about what had happened in the previous year,” McKenzie “would be better off in

some other field.”

Sheriff Dovala admitted to McKenzie that he had passed over her application when

positions became available in the department between November 1996 and October 1997.

He acknowledged that when McKenzie visited with him in October 1997, he had met

with his supervisors, Mark Benton and Lt. Kinghorn. Without a statutory psychological

evaluation, they concluded that they were against considering McKenzie’s application

based on their knowledge of her prior psychological problems. See Wyoming’s Peace

Officer Standards and Training (POST) law, Wyo. Stat. Ann. § 9-1-704(b)(vii). Sheriff

Dovala admitted that he did not consider any individualized assessment of McKenzie’s

present psychological profile when she was excluded from consideration for

reemployment.

McKenzie later learned that shortly before her resignation, former Undersheriff

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(now Sheriff) Mark Benton1 contacted the POST Commission to request that it revoke her

certification as a peace officer. Sheriff Benton testified that a psychological evaluation is

required in the hiring process, that no evaluation was performed on McKenzie, and that

the Sheriff’s Office rejected McKenzie’s application based upon “what they knew” about

her background.

At trial the defendants finished their case by calling two “expert witnesses.” First,

Dr. Wihera, the aforementioned psychologist, testified. He had not evaluated McKenzie.

He admitted that he could not testify that McKenzie was a direct threat, but said it was

“reasonable” for the Department to conclude she was a “direct threat” based on past

behavior. He stated that supervisory police officers were not qualified to perform

psychological exams and that such supervisors were suited only for observing behavior.

He also conceded that most police supervisors are unfamiliar with the “course” of PTSD,

that over half of all people who have PTSD symptoms can recover within one year and

PTSD is something one can recover from. He acknowledged that a psychological exam

would be a way of determining whether someone had recovered from PTSD.

The other expert witness was Officer Tom Walton, a Chicago police supervisor.

McKenzie objected that Officer Walton’s opinion of the reasonableness of the conduct of

the defendants in screening her out was irrelevant since such action must be based on an

individualized assessment or other recent objective evidence. On voir dire Officer

Walton said he was not offering an opinion as to the reasonableness of the defendants’

1
Since the beginning of this law suit, Benton replaced Dovala as Sheriff of Natrona County.

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conduct as it related to compliance with the ADA, but only with respect to what a

reasonable police supervisor would do.

Officer Walton testified that it would be “totally improper” to re-hire McKenzie

because she had engaged in dangerous behavior in shooting her father’s grave. He also

reviewed the medical/mental health history of the plaintiff and concluded that the mental

health “history” of impairment precluded the reasonableness of re-hiring McKenzie. On

cross-examination, Officer Walton admitted that his opinion was based solely on his

knowledge of the mental health history of McKenzie; that he claimed no expertise in

PTSD other than what he had read in the VFW journal.

In addition to the testimony of Sheriffs Benton and Dovala and their experts, the

defendant called Officers Hadlock, Rostad, Walsh, Laing, Davy, Kinghorn, and Potter, all

of whom testified about their contacts with McKenzie before, during and after her illness

in 1996, and said they would have trouble working with McKenzie due to their

knowledge of her past disability as that affected their concerns about “trust,”

“confidence,” and “comfort.”

Although the jury found that McKenzie was “disabled” under the law, that she was

“otherwise qualified,” and that the defendants had “discriminated” against her because of

disability, they also found that McKenzie posed a “direct threat” to herself or other

officers, and therefore was not “qualified” to be a peace officer. As a result, the jury

returned a verdict for the defendant, and this appeal followed.

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 III

ISSUES PRESENTED

In her appeal, McKenzie asserts three claims of error. First, she argues that the

district court abused its discretion when it admitted expert testimony from Dr. Wihera and

Officer Walton who testified about the reasonableness of defendant's actions based upon

knowledge of plaintiff's record of impairment, but without conducting an individual

assessment. Second, she argues the district court erred when it failed to adopt her

proposed jury instruction #17, which specified that disability and disability-related

conduct should be treated the same (but did not address the exception where either

disability or disability-related conduct constitutes a “direct threat.”) Third, she says the

trial court erred in instructing the jury that she, and not her employer, bore the burden of

proving whether or not she posed a direct threat to herself or others, which would

preclude her from the employment at issue. We hold that McKenzie's claims of error lack

merit and accordingly affirm.

IV.

DISCUSSION

We will first address McKenzie's contentions that the district court erred by

refusing to give her proposed Instruction No. 17, and that the District Court erred in

admitting the expert testimony of Dr. Wihera and Officer Walton. We hold these

contentions to be without merit. We also find that the district court did not commit

reversible error in instructing the jury that McKenzie bore the burden of proving she did

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not pose a “direct threat" and will address this question following our analysis of her first

two arguments.

1. Whether the district judge erred by refusing to give McKenzie’s Instruction No.

17

McKenzie contends that the district judge abused his discretion by refusing

to give the jury Plaintiff’s Instruction No. 17. We disagree.

It is well settled that “the omission or exclusion of a particular jury

instruction is left to the sound discretion of the trial court.” Coletti v. Cudd

Pressure Control, 165 F.3d 767, 771 (10th Cir. 1999). This court reviews the

district court’s decision “to give a particular jury instruction for abuse of

discretion.” Garrison v. Baker Hughes, 287 F.3d 955, 963 (10th Cir. 2002)

(citations and quotation marks omitted). As long as “the charge as a whole

adequately states the law, the refusal to give a particular instruction is not an

abuse of discretion.” United States v. Suntar Roofing, Inc., 897 F.2d 469, 473

(10th Cir. 1990).

McKenzie’s proposed Instruction No. 17 stated:

The ADA’s anti-discrimination provision does not contemplate a
stark dichotomy between “disability” and “disability-caused
misconduct,” but rather protects both. Therefore, since mental illness
is manifested by abnormal behavior and is diagnosed on the basis of
abnormal behavior, the ADA does not permit an employer to
discriminate against a qualified person with a disability based on
conduct related to her mental illness.

Under the ADA an employer should consider whether a mentally

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 disabled employee’s purported misconduct could be remedied through
a reasonable accommodation. If no reasonable accommodation can
be provided, an employer may discriminate against an employee for
conduct only if the conduct poses a present direct threat to the health
and safety of others. Otherwise, an employer must tolerate eccentric
or unusual conduct caused by the employee’s mental disability so
long as an employee can satisfactorily perform the essential functions
of her job.
VI App. 996.

McKenzie asserts that it was reversible error to fail to instruct the jury that

the ADA’s anti-discrimination provision does not contemplate a stark dichotomy

between “disability” and “disability-caused conduct,” but rather protects both as

we held earlier. McKenzie, 242 F.3d at 974; Den Hartog, 129 F.3d at 1088; 42

U.S.C. § 12112(a). However, we agree with the defendant that Plaintiff’s

Instruction No. 17 contains a significant omission in not mentioning the “direct

threat” exception to the ADA’s anti-discrimination policy. The issue of “direct

threat” was of importance in this trial considering the inherently dangerous nature

of law enforcement. 2

2
We disagree with McKenzie’s argument that the defendant could not raise the issue of
“direct threat” at trial because it was not included as an affirmative defense in defendant’s
answer. See Brief of Appellant at 2 (“In an ADA case . . . where the employer has not
affirmatively alleged that [plaintiff] poses a ‘direct threat’). We note that the record shows that
the issue of whether McKenzie posed a “direct threat” was included in the district court’s Pretrial
Order as a factual question in this case. App. 1018.
This court has stated, “‘[w]hen an issue is set forth in the pretrial order, it is not necessary
to amend previously filed pleadings’ because ‘the pretrial order is the controlling document for
trial . . . the inclusion of a claim in the pretrial order is deemed to amend any previous pleadings
which did not include that claim.’” Wilson v. Muckala, 303 F.3d 1207, 1215 (10th Cir. 2002)
(quoting Expertise Inc., v. Aetna Fin. Co., 810 F.2d 968, 973 (10th Cir. 1987). We also note that
the record shows that the “proposed” pretrial order did not contain “direct threat” as a factual
issue. TK App. 1095. As defendant points out “at the request of defense counsel the issue of
‘direct threat’ was added, and included in the final pretrial order.” Brief of Appellee at 50 & n.9.

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 In the requested instruction, McKenzie did not make reference to the “direct

threat” exception. Instead, she asked the district judge to instruct the jury that

“the ADA does not permit an employer to discriminate against a qualified person

with a disability based on conduct related to her mental illness.” See VI App. 996.

The district judge accurately observed that the ADA anti-discrimination policy is

“subject to narrow exceptions such as those for employees who pose a direct threat

to the health or safety of others.” V App. 855; see Den Hartog v. Wasatch

Academy, 129 F.3d 1076, 1087 (10th Cir. 1997) (“[A]n employer may take action

against an employee who poses a ‘direct threat’ to the health or safety of other

individuals in the workplace.”) (citing 42 U.S.C. § 12113(b)(1994)).

We have previously held that “requested instructions that are misstatements

of the law . . . are correctly refused.” United States v. McKinney, 822 F.2d 946,

949 (10th Cir. 1987); see also United States v. Stoddart, 574 F.2d 1050 (10th Cir.

1978). Therefore, we hold that the district judge did not err in rejecting Plaintiff’s

Instruction No. 17.

2. Expert Testimony of Dr. Richard Wihera and Officer Tom Walton

McKenzie asserts that the district court erred by admitting expert testimony

of Dr. Wihera and Officer Walton regarding the reasonableness of defendant’s

We agree with defendant that to the extent necessary, the pleadings have been amended to
incorporate “direct threat” as an issue of fact in the instant case. Additionally, defendant has
consistently asserted that McKenzie’s employment would have posed a safety risk and liability
concern in the inherently dangerous profession of law enforcement.

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refusing to reemploy McKenzie. We disagree.

Under the Federal Rules of Evidence the trial judge must ensure that any

and all scientific testimony or evidence admitted is not only relevant, but reliable.

Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579, 589 (1999).

Federal Rule of Evidence 702 states:

If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or
otherwise, if (1) the testimony is based upon sufficient facts or data,
(2) the testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods reliably to
the facts of the case.

In Daubert the Court held that the “general acceptance” test for the

admissibility of novel scientific evidence formulated in Frye v. United States, 293

F.1013 (1923) was superseded by the adoption of the Federal Rules of Evidence.

Daubert teaches that a district judge, when he encounters a proffer of expert

scientific testimony, “must determine at the outset, pursuant to [Fed.R.Evid.]

104(a), whether the expert is proposing to testify to (1) scientific knowledge that

(2) will assist the trier of fact to understand or determine a fact in issue.” Id. at

592. In this way the district judge under Daubert, “performs an important

gatekeeping role in assessing scientific evidence.” Hollander v. Sandoz

Pharmaceuticals Corp., 289 F.3d 1193, 1204 (10th Cir. 2002).

A. Dr. Richard Wihera

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 We agree with defendant’s argument that the district judge’s decision to

admit the expert testimony of Dr. Wihera should be reviewed for plain error.

McKenzie specifically objected to Dr. Wihera’s “qualifications” during his

testimony. V App. 757. On appeal, McKenzie raises an argument concerning

whether Dr. Wihera’s testimony was “relevant.” Brief of Appellant at 47-48.

Because McKenzie did not timely object to the “relevance” of Dr. Wihera’s

testimony, we review for plain error only.

In civil cases, “[t]he ‘plain error’ exception . . . has been limited to errors

which seriously affect ‘the fairness, integrity or public reputation of judicial

proceedings.’” McEwen v. City of Norman, Okla., 926 F.2d 1539, 1545 (10th Cir.

1991) (quoting Karns v. Emerson Elec. Co., 817 F.2d 1452, 1460 (10th Cir.

1987)). The “miscarriage of justice” must be “patently erroneous and prejudicial.”

Aspen Highlands Skiing Corp. v. Aspen Skiing Co., 738 F.2d 1509, 1516 (10th Cir.

1984), aff’d on other grounds; 472 U.S. 585 (1985).

The district judge did not commit plain error by allowing Dr. Wihera to

testify as an expert. He is an expert in law enforcement qualification standards

who has performed “about 15,000 to 20,000 pre-employment evaluations”

concerning law enforcement personnel qualifications. V App. 754. He has

worked “for agencies in about 15 different states” and has done extensive work

with Wyoming law enforcement agencies, including the Natrona County Sheriff’s

Department. Id. Drawing on this experience, Dr. Wihera testified that “the

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sheriff’s department acted in a reasonable manner in not pursuing [McKenzie’s]

application based upon the behaviors she had displayed in the past.” Id. at 761.

We agree with the defendant that this testimony is particularly relevant because it

assisted “the trier of fact to understand or determine” (Daubert, 509 U.S. at 592)

the factual question of whether McKenzie was a qualified person with a disability.

The ADA states:

A qualified individual with a disability. The term “qualified
individual with a disability” means an individual with a disability
who, with or without reasonable accommodation, can perform the
essential functions of the employment position as such individual
holds or desires.
42 U.S.C. § 12111(8).

We note that McKenzie had an opportunity to cross-examine Dr. Wihera

before the jury. Black v. M & W Gear Co., 269 F.3d 1223, 1231 (10th Cir. 2001)

(holding no plain error existed in admission of expert testimony and noting that

appellant cross-examined the expert). Additionally, McKenzie was permitted to

voir dire Dr. Wihera before the jury in order to reveal any questions about his

“qualifications.” V App. 757-60.

We agree with the defendant that the district court did not err when it

allowed Dr. Wihera to testify as an expert. We hold that there was no error which

affected the “fairness, integrity or public reputation of the judicial proceedings,”

McEwen, 926 F.2d at 1545 (citations and quotation marks omitted). In sum it

does not appear that the district judge made any error in admitting Dr. Wihera’s

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testimony.

B. Officer Tom Walton

McKenzie also argues that the district judge should have excluded the testimony

of Officer Walton because it was not relevant. Again, we do not agree. This court

reviews “the admission or exclusion of expert testimony for abuse of discretion.”

United States v. Arney, 248 F.3d 984, 990 (10th Cir. 2001). We give substantial

deference to the district judge’s application of Daubert. See Kumho Tire Co. v.

Carmichael, 526 U.S. 137, 152 (1999) (“[T]he trial judge must have considerable

leeway in deciding in a particular case how to go about determining whether

particular expert testimony is reliable”). The abuse of discretion standard assures

that “a trial court’s decision will not be disturbed unless the appellate court has a

definite and firm conviction that the lower court made a clear error of judgment or

exceeded the bounds of permissible choice in the circumstances.” McEwen, 926

F.2d at 1553-54 (10th Cir. 1991). The Daubert test “ensures that the proffered

evidence is both ‘reliable’ and ‘relevant.’” Hollander, 289 F.3d at 1204 (quoting

Daubert, 509 U.S. at 589). Reliability is judged by examining “whether the

reasoning or methodology underlying the testimony is scientifically valid.”

Daubert, 509 U.S. at 592-93. Relevance is evaluated based on “whether [that]

reasoning or methodology properly can be applied to the facts in issue.” Id. at

593.

On appeal, McKenzie here focuses on the district court’s application of the

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“relevance” prong of the Daubert inquiry. Brief of Appellant at 44, 47. We do

not feel that the district judge abused his discretion in finding that Officer

Walton’s testimony could be “applied to the facts in issue” in this case. Daubert,

509 U.S. at 593. As mentioned above, “Rule 702 . . . requires that the evidence or

testimony ‘assist the trier of fact to understand the evidence or to determine a fact

in issue.’ This condition goes primarily to relevance.” Daubert, 509 U.S. at 591.

“‘Expert testimony which does not relate to any issue in the case is not relevant

and, ergo, non-helpful.’” Id. (quoting 3 Weinstein & Berger ¶ 702[02], p. 702-18).

See also United States v. Downing, 753 F.2d 1224, 1242 (3rd Cir. 1985) (“An

additional consideration under Rule 702 – and another aspect of relevancy – is

whether expert testimony proffered in the case is sufficiently tied to the facts of

the case that it will aid the jury in resolving a factual dispute”). The consideration

“has been aptly described by Judge Becker as one of ‘fit.’” Daubert, 509 U.S. at

591 (quoting Downing, 753 F.2d at 1242). Rule 702’s “‘helpfulness’ standard

requires a valid scientific connection to the pertinent inquiry as a precondition to

admissibility.” Daubert, 509 U.S. at 591-92.

Officer Walton is a Deputy Chief of the Patrol Division in the Chicago

Police Department. V App. 786. At the time of the trial, Officer Walton had

served nearly thirty years with the Department, including twenty-two years in

“patrol operations,” four years as “a director of training and education,” and held

the position of “certified police instructor.” V App. 786. We agree with the

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defendant that the district judge could consider Officer Walton’s testimony, V

App. 791-97, regarding the “duties, responsibilities, and rigors of the law

enforcement profession” as helpful to the jury in determining whether McKenzie

was a qualified individual or whether it was “objectively reasonable” for

defendant to not consider rehiring McKenzie. Bragdon, 524 U.S. at 650 (holding

that “objective reasonableness” is a relevant inquiry).

Further, Officer Walton’s testimony was also relevant to the jury’s

examination of whether McKenzie was a “direct threat” to herself or others. In

Jury Instruction No. 21, 3 which concerned “direct threat,” the jury was asked to

3
Jury Instruction No. 21 stated:
The term “direct threat” means a significant risk to the health or
safety of herself or others that cannot be eliminated by reasonable
accommodation.

There are several factors used to determine whether an individual
poses a direct threat. These factors include:
1. The duration of the risk;
2. The nature and severity of the potential harm;
3. The likelihood that the potential harm will occur; and
4. The imminence of the potential harm.

These factors are to be evaluated based on an individualized assessment of
the individual’s present ability to safely perform the essential functions of the
job. Further, they are to be evaluated based on a reasonable medical
judgment that relies on the most current medical knowledge and/or on the
best available objective evidence.

The ADA does not require an independent medical examination when there
is available objective evidence. The ADA uses the conjunctive “and/or”
between medical knowledge and objective evidence. As such, the
determination whether an employee presents a “direct threat” may be based
on valued medical analyses and/or on other objective evidence. VI App. 985.

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determine the “duration, magnitude and likelihood of the potential harm posed by”

McKenzie. Brief of Appellee at 67-68. We believe that Officer Walton’s

testimony regarding the dangerous nature of law enforcement, and the need for

good judgment and self-control, was relevant in assisting the jury in making this

determination. V App. 796-97. 4 Thus, we hold that the district court did not err in

admitting Officer Walton’s testimony.

3. The claim that there was error by instructing the jury that it was McKenzie’s
burden to prove she did not pose a “direct threat” to herself or others

McKenzie argues that the district court erred in instructing the jury that in

cases involving an inherently dangerous job, an individual with a disability bears

the burden of proving that she did not pose a direct threat. We do not agree.

This court reviews de novo “a timely challenge to a jury instruction to

determine whether, considering the instructions as a whole, the jury was misled.”

Wilson v. Muckala, M.D., 303 F.3d 1207, 1214 (10th Cir. 2002). “In reviewing

such allegations, this court examines the record as a whole to determine whether

the instructions state the applicable law and provide the jury with an appropriate

understanding of the issues and the legal standards to apply.” Faulkner v. Super

Valu Stores, 3 F.3d 1419, 1424 (10th Cir. 1993).

4
“[Y]ou’re often in hazardous situations, risky situations, situations in which judgment is – is
critical. You make quick decisions often under very tense, uncertain, very rapidly involving
[sic] circumstances, pressure-filled circumstances. You need to enforce the law within the law.
You need to have control of yourself. Anger management is absolutely critical because you will
be tested to the limit. You need to be able to stay professional and control your emotions and
not react in an emotional way.” V App. 796-97 (Officer Walton’s testimony).

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 McKenzie asserts that “failing to accurately describe the elements of a

prima facie case and shifting the burden of proving absence of an affirmative

defense is reversible err [sic].” Brief of Appellant at 31. She takes issue with the

district judge’s instruction to the jury that for Plaintiff to establish her claim of

unlawful discrimination by Defendant, she had the burden to prove by a

preponderance of the evidence that, inter alia, “Plaintiff, at the time she sought re-

employment with the Natrona County Sheriff’s Office, did not pose a direct threat

to herself or others.” Brief of Appellant at 30-31 (quoting Jury Instruction No. 8,

6 App. 972). Additionally, McKenzie objects to Jury Instruction No. 20, which

stated:

In order to show that she is qualified to work in an inherently dangerous
occupation, plaintiff must prove by a preponderance of the evidence that she
did not pose a direct threat to herself or others.
Jury Instruction No. 20, 6 App. 984.

McKenzie contends that whether “an employer may justifiably exclude an

otherwise qualified individual with a disability because that person poses a ‘direct

threat’ to the health and safety of others is an affirmative defense the burden of

proof of which lies with the defendant employer.” Brief of Appellant at 3 (citing

42 U.S.C. § 12113(b); 29 C.F.R. § 1630.2(r); Den Hartog v. Wasatch Academy,

129 F.3d 1076 (10th Cir. 1997); McKenzie v. Dovala, 242 F.3d 967 (10th Cir.

2001)).

This circuit first considered the question of “direct threat” under the ADA,

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as codified in 42 U.S.C. §§12111(3) and §§12113, in Den Hartog, 129 F.3d 1076,

supra. In Den Hartog, we categorized the existence of a “direct threat” as an

“affirmative defense” to a charge of disability discrimination, and noted that:

“[w]ithout running afoul of the ADA, an employer may define a qualification for

any job that ‘an individual shall not pose a direct threat to the health or safety of

[the individual himself] or other individuals in the workplace.’” Id at 1088

(emphasis added). We did not address which party bears the burden of proving

“direct threat.” In analyzing Den Herzog, however, we discussed both the

arguments raised by defendant asserting that plaintiff did constitute a direct threat,

and the arguments by plaintiff refuting that position. Id at 1089.

We revisited the “direct threat” question three years later in Borgialli v. Thunder

Basin Coal Co., 235 F.3d 1284 (10th Cir. 2000). There, this court discussed the split

among the federal appellate courts regarding which party bears the burden of proof on the

presence or lack of a “direct threat.” Id at 1291-94. However we did not expressly state

which rule we would follow. We noted some precedent which placed the burden of proof

at all times on the employee. See Moses v. American Nonwovens, Inc., 97 F.3d 446, 447

(11th Cir. 1996), cert denied, 519 U.S. 1118 (1997) (“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.”) On the other hand, we have relied on the Fifth

Circuit’s Rizzo v. Children’s World Learning Centers, Inc., which stated that “it is unclear

from the statutory scheme who has the burden on this issue. It may depend on the facts of

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the particular case.” 213 F.3d 209, 213, n.4 (5th Cir. 2000). Rizzo suggests, and

Borgialli, 235 F.3d at 1294, concurs that the burden may fall on the employer, but with an

exception: “where the essential job duties necessarily implicate the safety of others, [then]

the burden may be on the plaintiff to show that she can perform those functions without

endangering others . . . .” Rizzo, 213 F.3d at 213, n.4 (citations omitted).

In connection with performance of essential job functions, we note the following

analysis in E.E.O.C. v. Amego, Inc., 110 F.3d 135, 144 (1st Cir. 1997):

Where those essential job functions necessarily implicate the
safety of others, plaintiff must demonstrate that she can
perform those functions in a way that does not endanger
others. There may be other cases under Title I where the
issue of direct threat is not tied to the issue of essential job
functions but is purely a matter of defense, on which the
defendant would bear the burden...”5

The instant case does not involve some of the circumstances of Amego, Inc.,

such as the safety of others where the essential functions of a job involve the care

of others unable to care for themselves. 110 F.3d at 143. However here there is a

special risk to others, co-workers and the public, who are exposed to the danger of

a firearm in the control of McKenzie. Moreover McKenzie’s erratic instances of

behavior must be considered as well. We are, therefore, persuaded that it is proper

5
But see Hargrave v. Vermont, 340 F.3d 27, 35 2nd Cir. (2003) ("In the employment context, it
is the defendant's burden to establish that a plaintiff poses a ‘direct threat’ of harm to others, see
Lovejoy-Wilson [v. NOCO Motor Fuel, Inc.,] 263 F.3d [208,] 220 [(2001)] (citing legislative
history of the ADA, H.R.Rep. No. 101-485, pt. 3, at 46 (1990), reprinted in 1990 U.S.C.C.A.N.
445, 469."); Hutton v. Elf-Altochem N. Am. Inc., 273 F.3d 884, 893 (9th Cir. 2001) (“Because it
is an affirmative defense, the employer bears the burden of proving that an employee constitutes
a direct threat.”)

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for the defendant-employer here to consider the direct threat factor in connection

with possible re-employment of McKenzie. And, likewise, we are convinced it

was not error for the trial judge to instruct the jury that McKenzie bore the burden

of proof on not being a direct threat. The job qualifications here properly included

the essential function of performing McKenzie’s duties without endangering her

co-workers or members of the public with whom she came in contact.

We dealt with the “direct threat” question in our earlier consideration of the

facts of this instant case. In McKenzie v. Dovala, 242 F.3d 967, supra, we

reversed a summary judgment for defendant-employer Dovala, then Sheriff of

Natrona County, concluding that McKenzie had successfully made out her prima

facie case under the ADA and submitted sufficient evidence to raise issues of

material fact appropriately determined by a jury. We cited our earlier opinion in

Borgialli, 235 F.3d at 1295, and stated that it held that “a disabled plaintiff, to

show she is qualified to work in an inherently dangerous job, must show that she

does not pose a direct threat to others.” McKenzie v. Dovala, 242 F.3d at 974.

On remand of this case, the parties agreed to stipulate that the occupation in

question was “inherently dangerous.” Aplt. App. vo1. 4 p. 618. Then, over

plaintiff’s objection, the district court adopted a jury instruction placing the

burden of showing she would not be a “direct threat” on the plaintiff McKenzie.

We hold that the district court did not err in placing that burden on the

plaintiff here. The notion that an employee might constitute a “direct threat” to

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persons in the workplace, and the permissible conduct of an employer in such

circumstances, is discussed in the ADA at sections 42 U.S.C. §12113(a),

§12113(b), §12111(3), and also in related language at §12112(b)(6). Section

12113(a), under the heading “Defenses,” states the following:

It may be a defense to a charge of discrimination under this chapter that
an alleged application of qualification standards, tests or selection
criteria that screen out or tend to screen out or otherwise deny a job or
benefit to an individual with a disability has been shown to be job-
related and consistent with business necessity, and such performance
cannot be accomplished by reasonable accommodation, as required
under this subchapter.”
42 U.S.C. §12113(a).

Thus “direct threat” is addressed under “Defenses.” However, the statute

further states that “[t]he term ‘qualification standards’ may include a requirement

that an individual shall not pose a direct threat to the health or safety of other

individuals in the workplace.” Id. §12113(b). Moreover the plaintiff had

demonstrated clearly reckless use of her department issued off duty firearm when

she fired six shots into her father’s grave. McKenzie’s irresponsible conduct

could have tragic consequences if it reoccurred while she was on duty. In

addition, evidence was presented at trial of McKenzie engaging in violent conduct

which had the potential to be a direct threat to others and which, in fact, led to

physical harm to herself. 6 As a result, not only was the occupation in question

6
The jury heard testimony that McKenzie was committed to a mental hospital due to concerns
regarding safety and the failure of out-patient treatment, App. 1108-27, McKenzie was found by
police on a mountain after having cut her wrist. App. 1128-29. Subsequently, Dr. Viray
indicated that McKenzie’s self-mutilation was continuing and that McKenzie was punching

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“inherently dangerous,” as stipulated by the parties, but McKenzie demonstrated

particularly reckless and dangerous conduct. We hold that under these

circumstances, the district court did not err by instructing the jury that the burden

rested on the plaintiff to prove that she did not pose a “direct threat” to others in

the workplace.

AFFIRMED.

walls in anger. Three days later, McKenzie talks about suicide and admits self-mutilation. App.
1131. The same day, McKenzie is found by an employee at Crestview Hospital on a patio
punching boards and screaming “let me out of the box.” App. 1132-40. A little over two weeks
later, McKenzie was found at a motel after overdosing on medication. App. 1141-49.

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