Borgialli v. Thunder Basin Coal Co.

F I L E D
United States Court of Appeals
Tenth Circuit

DEC 20 2000
PUBLISH
PATRICK FISHER
UNITED STATES COURT OF APPEALS Clerk
TENTH CIRCUIT
______________________

DENNIS BORGIALLI,
Plaintiff-Appellant,
v. No. 99-8009
THUNDER BASIN COAL CO.,
ATLANTIC RICHFIELD CO.,
THUNDER BASIN COAL CO. L.L.C.,

Defendants-Appellees.
______________________
Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 98-CV-1009-D)
______________________

Before LUCERO, Circuit Judge, McWILLIAMS, Senior Circuit Judge,
and BROWN, Senior District Judge. *
______________________
Timothy W. Miller, Reeves & Miller, Casper, Wyoming, (Jeremy D.
Michaels, Michaels & Michaels, Gillette, Wyoming, with him on the
briefs) for Plaintiff-Appellant.
Gary R. Scott, Hirst & Applegate, P.C., Cheyenne, Wyoming, for
Defendants-Appellees.
_____________
BROWN, Senior District Judge.
_____________

Plaintiff Dennis Borgialli claims that his former employer,

the Black Thunder Mine in Gillette, Wyoming, (hereafter referred to

as the "Mine") terminated his employment in violation of the

Americans with Disabilities Act, 42 U.S.C. §12101 et seq, and in

*
Honorable Wesley E. Brown, Senior United States District
Judge for the District of Kansas, sitting by designation.
 1
violation of Wyoming state law. The district court entered

summary judgment for the defendants on all claims, and plaintiff

has appealed this order. 2 We exercise jurisdiction under 28 U.S.C.

§1291 and affirm.

BACKGROUND

There is no real factual dispute between the parties as to the

events which led to the termination of plaintiff's employment at

the Mine. For this reason, we refer to the record and various

factual findings made by the trial court in its ruling on the
motion for judgment.

Plaintiff worked as a "blaster" for eighteen years at the
Mine. During his employment, plaintiff received frequent praise

for his outstanding performance and safety record. His blasting

job included varied tasks such as drilling holes up to 12-1/4" in

diameter and 240 feet in depth, operating vehicles for transporting

explosive materials, and the placement and detonation of large
amounts of explosives. As a part of his job, plaintiff operated

vehicles and other equipment in dangerous geographical areas such

as work in close proximity to high walls with shear drop-offs.

Plaintiff's duties also included a specific responsibility "for

1
The Mine was operated by defendants Thunder Basin Coal
Company, Atlantic Richfield Company, and the Thunder Basin Coal
Company, L.L.C.
2
Plaintiff's state claims were based upon alleged violation
of the Wyoming Fair Employment Practices Act, and the allegation
that defendants had breached an implied contract of employment,
requiring "cause" for termination.
2
personal safety, as well as [the] safety of other personnel in and
3
around drilling and blasting locations. . . ."

The explosives used at the Mine were of the type used in the

Oklahoma City bombing, a fertilizer-diesel mixture. In his

deposition, plaintiff described the massive effect of each blast in

this manner:

A. We use AMFO. It's a fertilizer-diesel
mixture, along with the detonator -- I'm
not sure what they're made out of -- to
set the explosion off, as well as primer
cord. And the amount is usually in the
millions of pounds.

Q. Per blast?

A. Per blast, which is quite massive.
Q. How would that compare, for instance,
with the Oklahoma City bombing as far as
the amount and kind of explosive used in
that blast?

A. If my memory serves me right, in Oklahoma
City, it was about 2,000 pounds.
Q. Of the same kind of explosive?

A. Yes. . . And that would fill one hole
about half full.

Q. And how many holes are you working with
on a blast?

A. Anywhere from 200 to 800 holes.
(Appendix at p. 199).

3
Plaintiff's written job description is found in Appellant's
Appendix, at pp. 120-123. The explosives used at the Mine were of
the type used in the Oklahoma City bombing, a fertilizer-diesel
mixture, and the amount used per blast was "usually in the millions
of pounds." (Appendix at p. 199)
3
 In early 1996, plaintiff's work environment changed because

his former subordinate, John Opseth, became his supervisor. These

two men apparently had a contentious relationship dating back at

least to 1995. Beginning in March, 1996, plaintiff began having

problems with dizziness, blurred vision and nausea. In the

following months, plaintiff saw several different physicians for

these symptoms, and their medical opinions ranged from multiple

sclerosis to depression to closed head injury to some type of

medication reaction. It was finally determined that many of
plaintiff's physical problems were caused by migraine headaches.

On May 6, 1996, plaintiff received a restricted medical release
signed by Dr. Mitchell Horan who wrote that, because of visual

symptoms and dizziness, plaintiff should not be permitted to drive

heavy equipment. Plaintiff concedes that as of May 22, 1996, he

was not able to return to his job as a blaster. (Appendix at 100,

101). Dr. Horan testified that if plaintiff had been allowed to
return to work in June, 1996, he would have contacted the Mine to

advise that he should not be working because of dizziness problems.
It was Dr. Horan's opinion that plaintiff should not have been

allowed to return to work at any time before mid to late August,

1996. (Appendix at 189, 190). 4
The Mine allowed plaintiff to return to full capacity as a

blaster within a few days after receiving work releases signed by

4
The trial court found that plaintiff's work was "both
involuntarily and voluntarily restricted through the summer of
1996."

4
Dr. Sabow on July 31, 1996, and a release signed by Dr. Farrell on

August 12, 1996. (Appendix at pp. 77-85, 99). Plaintiff returned

to work on August 16, 1996. 5

On September 23, 1996, Mr. Opseth gave plaintiff a negative
6
performance evaluation. (Appendix pp. 364-313). Plaintiff

believed that this evaluation was false, and he was also upset

about being kept away from work during the summer. On the night of

September 23, 1996, plaintiff admittedly had thoughts of suicide,

and he telephoned his former supervisor, Mr. Bill Babcock,
expressing those suicidal feelings. The next day, plaintiff

visited the Mine's nurse, Ms. Barbara Hagerman, and told her of his
suicidal thoughts. He suggested that the Mine should be concerned

about his safety. 7 On September 24, 1996, after being sent home

from work, plaintiff went to see Darryl Lynde, his counselor at

work. (Appendix at 109). At that time a "Statement of Injury

Form" was signed by Mr. Lynde containing this notation:

5
With respect to plaintiff's migraine headaches, it was Dr.
Sabow's opinion that plaintiff "is quite capable of returning to
work. I do not consider him to be at any risk to himself or to
others with his present condition." (Appendix, at p. 84)
Dr. Ferrell agreed with Dr. Sabow’s opinion. (Appendix at p.
85).
6
Opseth gave plaintiff 274 total points, which was not
sufficient to maintain plaintiff in a position of "Tech. VI."
7
In conversations with supervisors on that date, plaintiff
voiced a concern that "he wasn't sure if he was going to hurt
someone or hurt himself." (Appendix at 197).
According to Ms. Hagerman's notes, plaintiff was reported as
stating ". . . If you think I was unsafe before, you should see how
unsafe I am now . . . . " (Appendix at 173).
5
 I saw Dennis 9/24/96 for one hour. He agreed
to an absolute "NO HARM" contract w/wife &
therapist present he agreed to keep himself
safe from himself now & forever. (Appendix at
127)

On this form, there was a provision for the counselor's opinion as

to whether plaintiff was able to return to work. This portion of

the form was not completed by Mr. Lynde. (Appendix at 127) 8

On September 25, plaintiff called in to say he could not work

because of a migraine headache. On September 26, plaintiff took

the return to work form he had obtained from Lynde to the Mine and
he worked on that day. At the conclusion of his work shift,
plaintiff was told that the Mine had concerns about the release
form since Lynde did not indicate that plaintiff was able to return

to work. Plaintiff was told that the company would make

arrangements for his evaluation by a psychiatrist. (Appendix at

201-203). Plaintiff understood that he would not be returning to

work until that evaluation was made. (Appendix at 112).
On October 11, 1996, plaintiff was evaluated by a Denver

psychiatrist, Dr. Peter Silvestri. Following a review of

plaintiff's medical records and a personal three-hour interview,

Dr. Silvestri found that plaintiff could not safely perform his job

as a blaster. In his report, the doctor found that plaintiff

suffered from several psychiatric disorders, including major

depression together with somatization, anxiety, and personality

8
In regard to this agreement, plaintiff stated he was not
going to harm himself. As noted, Lynde did not specifically answer
the question concerning plaintiff's ability to return to work.
6
disorders. (Appendix 163). He also found that plaintiff suffered

from several physical problems including "complex basilar migraine

headaches," possible multiple sclerosis and "benign familial

tremor." Dr. Silvestri also mentioned plaintiff's conflict with

Mr. Opseth and recommended that plaintiff avoid "personal and work

related interactions with persons known to exacerbate his symptoms

(such as Mr. Opseth)." It was also noted that plaintiff's

psychiatric problems are “chronic, and rapid improvement in his

habitual style of interaction should not be expected." (Appendix at
175, 176).

Dr. Silvestri's report, which was sent to Dr. David Clyde,
defendants' medical director, conveyed the following conclusions:

(Appendix at 175):

It is my opinion that Mr. Borgialli does
suffer from psychiatric disorders and that
these disorders make it impossible for him to
perform his current job safely. He requires
treatment for these disorders.
It is also my opinion that Mr. Borgialli
suffers from one or more non-psychiatric
medical disorders, and that he requires
treatment for these disorders. Both the
symptoms of these disorders, and the possible
adverse effects of necessary treatment also
make it impossible for him to safely perform
the duties of his current job on the blasting
crew.9

9
In his deposition, Dr. Silvestri testified that his
decision that plaintiff could not safely perform his job was not
even a "close call". (Appendix at p. 157).
He stated that plaintiff's emotional responses (a tendency to
somatize painful emotions) "could lead to actions that might be
dangerous for him or for others", and that his physical symptoms
such as dizziness and blurred vision could "also aggravate or lead
to a further degree of dangerousness".
7
 On November 21, 1996, following receipt of this medical

report, Dr. Clyde issued a Memorandum to Mine officials with

suggestions concerning plaintiff's continuing employment:

Based upon this independent Medical Evaluation
[from Dr. Silvestri] and review of the
information from other treating physicians,
this employee cannot return to a job as
"blaster" at the mine. He presents a direct
safety threat to himself and to the other
workers. I recommend that Management and
Human Resources evaluate this employee's
qualifications for other positions in the
company with the following limitations: 1) No
work in areas that require good balance, depth
perception, and vision to work safely (e.g. no
work at heights or driving machinery). 2) No
work with machinery that requires the employee
to remain mentally alert (He is taking
medications that can impair reaction time and
cause a safety hazard), and 3) Provide work in
a small, stable work group that would allow
limited interpersonal interaction. (Appendix
at 220)(Emphasis supplied)

After receipt of Dr. Clyde's Memorandum, John Kasper, the

Human Resource Manager at the Mine, met with plaintiff and others
concerning Dr. Clyde's recommendations. Other possible job

opportunities for plaintiff in defendant's operation were
discussed. [Appendix at pp. 205-208] At that time there were three

full-time positions open -- for Plant Maintenance Technician, Shop

Maintenance Technician, and Engineering Supervision. These

openings were discussed with plaintiff, but he was not qualified by
education, training, or experience for any of these positions.

Dr. Silvestri found that plaintiff's job on the blasting crew
was "inherently dangerous,” and that all of the factors led him to
reach his conclusion that plaintiff "could not perform his current
job safely." (Appendix at p. 164).
8
There was also one temporary position in the warehouse, which was

unsuitable since the job would have required working on ladders.

Mr. Kasper provided plaintiff with an outline, dated December

11, 1996, of his medical and disability benefits. [Appendix pp.

392-395]. This information included the fact that plaintiff's full

base pay benefits had been exhausted on August 12, 1996, and that

his "half base pay" benefits would be exhausted on December 30,

1996:

Because you will exhaust your
Sickness/Disability benefits on 12/30/96, and
medical restrictions prevent you from
returning to work, you will be placed on a
Disability Leave of Absence effective
12/31/96. This leave will be for a period of
one year, pending approval for Long Term
Disability benefits. At the end of one year,
if you are in receipt of LTD benefits, your
leave will be converted to a Long Term
Disability Leave of Absence. (Ibid. at p.
392).10
Mr. Kasper further informed plaintiff of time limitations
governing an application for long term disability benefits:

Your disability waiting period is estimated to
be fulfilled about December 20, 1996, at which
time you could be eligible for LTD benefit
payments of 50% of your regular base pay.. . .
You have been provided the LTD application
forms necessary to apply for this benefit, but
you have not completed and returned them as of
this date. I sincerely encourage you to apply
for your LTD benefits -- if you need another
set of the application forms, please let me
know. (Ibid. at 393)

10
During the course of the "Disability Leave of Absence,"
plaintiff's medical and dental insurance coverage and basic life
insurance continued.
9
 Plaintiff continued on half-pay status until the end of

December, 1996 (Appendix at 114). In March, 1997, he sought an

evaluation from Dr. Mark Vuolo, another psychiatrist. In a report

dated March 29, 1997, Dr. Vuolo diagnosed plaintiff's condition to

include Undifferentiated Somatoform Disorder, Depressive Disorder

NOS, in remission, Anxiety Disorder NOS, in remission, and Possible

Personality Disorder NOS (with dependent and obsessive-compulsive

traits). In addition Dr. Vuolo found that plaintiff had several

physical problems including basilar migraine syndrome, cervical
degenerative disc disease, and familial tremor. (Appendix at 137)

Dr. Vuolo concluded his report in this manner:
Finally, my present psychiatric assessment
does not indicate that Mr. Borgialli is
currently impaired in his capacity to perform
the cognitive or physical tasks involved in
this job as a mine blaster. Furthermore, his
psychiatric illness is not assessed to be of
sufficient severity to cause long-term
occupational disability. . . .
* * * *
It is difficult to give a precise prognosis
for Mr. Borgialli's psychiatric response to
his hopeful return to the work place.
Hopefully, the recommended treatment could
significantly reduce his possible tendency
toward somatization and therefore minimize the
amount of time used in sick leave. However,
it is difficult to imagine in the near future
that.... [he] will have improved his
adjustment capacity sufficiently to
successfully manage a relationship with Mr.
Opseth as his supervisor. [Emphasis supplied,
(Appendix at pp. 137-138). 11

11
At the time Dr. Vuolo wrote his report, he was not aware
that safety was an issue in the decision to return plaintiff to
work. He stated that “I didn’t realize that that was the paramount
issue, anyway.” (Appendix at 181).
10
 When Dr. Vuolo's report was sent to the Mine with plaintiff's

request to return to work, defendants determined that plaintiff

would need to be seen by a third psychiatrist since the opinions of

Doctors Silvestri and Vuolo conflicted in part. Plaintiff refused

to be evaluated by another psychiatrist. Because an additional

evaluation was refused, defendants terminated plaintiff, effective

December 31, 1997. 12
In this appeal, plaintiff denies that he was or is "disabled,"

as that term is defined under the ADA. Instead, he claims that
defendants "perceived" him to be disabled and discriminated against

him for this reason. The district court concluded that even if
plaintiff were “disabled” the record clearly established that

plaintiff posed a direct threat to others and thus was not a

qualified person for employment as a blaster in the defendants’

mining operation. Similar rulings were made by the district court

regarding plaintiff's qualifications for employment under state
law.

We review the grant of summary judgment de novo, with an

examination of the record and all reasonable inferences which might

be drawn from it in the light most favorable to the plaintiff.

Woodman v. Runyon, 132 F. 3d 1330, 1337 (10th Cir. 1997).

Following our review of the record, we determine that plaintiff

12
Plaintiff had one year to apply for long term disability,
and, since he did not do so, he was officially terminated effective
December 31, 1997. (Appendix at 209).
11
failed to establish a prima facie case under the ADA or under state

laws pertinent to his employment status.

The ADA prohibits employers from discriminating against

qualified individuals with disabilities in regard to employment

conditions. 42 U.S.C. §12112(a). In order to prevail on a claim

under the ADA, a plaintiff must establish that he is a disabled

person, that he is qualified for employment -- that is to say that

he is still able to perform the essential functions of his job,

with or without accommodation, and that the employer discriminated
against him because of his disability. A person is considered

disabled within the meaning of the ADA if he has "a physical or
mental impairment that substantially limits one or more of [his]

major life activities." 42 U.S.C. §12102(2)(A).

The first determination made by the district court in

Borgialli's case concerned his status as a "disabled person." In

this appeal, plaintiff denies that he is a "disabled" person under
the ADA. Instead, he claims that the defendants "perceived" him to

be disabled and discriminated against him on a "perceived
disability." The record supports the finding of the district court

that defendants had not "perceived" plaintiff to be disabled at any

time prior to receiving Dr. Silvestri's report. The ADA does not

apply to any time period when plaintiff was temporarily out of work

from March, 1996, to July 31, 1996, due to migraine headaches and

problems with dizziness and blurred vision. During this time,
there is no evidence that defendants considered these symptoms to

be long term or permanent; and, when the Mine received work

12
releases signed by two of plaintiff's physicians, they immediately

returned plaintiff to full duty as a blaster. The ADA was not

designed to apply to temporary conditions. See Bolton v. Scrivner,

Inc., 36 F. 3d 939, 942, 943 (10th Cir. 1994).

The second occasion when plaintiff was not allowed to work

followed Mr. Opseth's unfavorable job evaluation, and plaintiff's

statements regarding safety concerns and suicidal thoughts on

September 24, 1996. At that time, the Mine determined that

plaintiff's presence in the workplace raised a definite safety
concern, particularly when it was noted that Mr. Lynde had not

affirmatively stated that plaintiff was able to return to work.
The Mine claims that it never considered plaintiff's physical

or psychological problems to be permanent in nature because it

"welcomed Mr. Borgialli's return once his health improved." The

district court agreed with this argument "to a point":

The first evidence that the Mine regarded
Mr. Borgialli as impaired under the ADA is Dr.
Clyde's memorandum. . . . Prior to this time,
however, nothing in the record suggests that
the Mine perceived [his] ailments as anything
more than temporary conditions affecting his
ability to perform the job of a blaster. The
Court finds that summary judgment is
appropriate insofar as Plaintiff has failed to
show that prior to Dr. Clyde's memo he was
"disabled" under the ADA. The Court finds,
however, that Dr. Clyde's memorandum and the
company's actions taken in response to the
memo create a genuine issue of material fact
regarding whether Plaintiff was "disabled"
under the ADA.(Slip Opinion, pp. 8-9)(Emphasis
supplied)
However, the district court further determined that even if

plaintiff was entitled to the protections of the ADA after Dr.

13
Silvestri's report and the recommendations of Dr. Clyde, defendants

were entitled to summary judgment because under the evidence there

can be no liability under the ADA when plaintiff's condition is

found to be a "direct threat" to others in the workplace.

Under the ADA it is a defense to a charge of discrimination if

an employee poses a direct threat to the health or safety of

himself or others. Den Hartog v. Wasatch Academy, 129 F. 3d 1076,

1088 (10th Cir. 1997). 13 Thus, 42 U.S.C. §12113(a), (b) provides

the following defenses:
§12113. Defenses.

(a) In general
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 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.

(b) Qualification standards

The term "qualification standards" may
include a requirement that an individual shall
not pose a direct threat to the health or
safety of other individuals in the workplace.

A definition of the term "direct threat" appears in 42 U.S.C.

§12111 (3) in this manner: "The term 'direct threat' means a

significant risk to the health or safety of others that cannot be

13
In Den Hartog, this court found that a teacher’s psychotic
son posed a direct threat to the school community and thus
teacher’s termination did not violate the ADA.
14
eliminated by reasonable accommodation." Federal Regulations, 29

C.F.R. §1630.2(r)(1998) expand upon the issue of "direct threat":

(r) Direct Threat means a significant risk of
substantial harm to the health or safety of
the individual or others that cannot be
eliminated or reduced by reasonable
accommodation. The determination that an
individual poses a "direct threat" shall be
based on an individualized assessment of the
individual's present ability to safely perform
the essential functions of the job. This
assessment shall be based on a reasonable
medical judgment that relies on the most
current medical knowledge and/or the best
available objective evidence. In determining
whether an individual would pose a threat, the
factors to be considered include: (Emphasis
supplied)

(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.
While 42 U.S.C. §12113, quoted above, is focused on "Defenses"

to ADA claims of discrimination, it seems that there may be a

question of whether the burden of proving risk rests upon the

employee or the employer. A number of courts have ruled that when

there is a direct threat to the health or safety of others, a

person is not "otherwise qualified" for employment. 14
It appears that this "direct threat" provision is based on the

Supreme Court's decision in School Board of Nassau County v.

14
In Borgialli's case, the district court referred to the
issue of "direct threat" as a "defense" to plaintiff's claim.
15
Arline, 480 U.S. 273, 287-88, 94 L.Ed. 2d 307, 320-321 (1987) which
held that a teacher was not otherwise qualified for her job under

the provisions of Section 504 of the Rehabilitation Act of 1973, 29

U.S.C. §794 if her tuberculosis infection posed a significant

threat to the health or safety of others. 15

In E.E.O.C. v. Amego, Inc., 110 F. 3d 135, 142-144, (1st Cir.

1997), the First Circuit recognized that provisions of the ADA

regarding qualifications were based upon the Arline decision. In

Amego, an employee who worked at a residence for severely disabled

patients claimed that she was terminated in violation of the ADA

because of her diagnosed depression. 16 In affirming the entry of
summary judgment in favor of the employer, the court held that the

record supported the employer's determination that the employee's

depression made her unqualified to perform essential job functions
such as administering and monitoring residents' medication. In so

15
See also, Doe v. University of Maryland Medical System
Corp., 50 F. 3d 1261 (4th Cir. 1995), where plaintiff, a medical
resident, who tested positive for HIV infection, was barred from
surgical practice. In affirming the district court's award of
summary judgment to the defendant in this ADA action, the Fourth
Circuit ruled that the resident was "not an otherwise 'qualified
individual' with a disability."

In Estate of Mauro v. Borgess Medical Center , 137 F. 3d 398
(6th Cir. 1998), cert. den., 119 S. Ct. 51), an HIV infected
surgical technician was found to be a direct threat to the safety
of others, and thus was not an "otherwise qualified individual" for
a position. Both of these HIV cases stressed the seriousness of
the risk of others.

16
This case was filed by the Equal Employment Opportunity
Commission (EEOC), as plaintiff, on behalf of the terminated
employee.
16
ruling, the court discussed plaintiff's burden of proof in this

manner:

We hold that, in a Title I ADA case, it is
the plaintiff's burden to show that he or she
can perform the essential functions of the
job, and is therefore "qualified". Where
those essential job functions necessarily
implicate the safety of others, plaintiff must
demonstrate that she can perform those
functions in a way that does not endanger
others. There may be other cases under Title
I where the issue of direct threat is not tied
to the issue of essential job functions but is
purely a matter of defense, on which the
defendant would bear the burden. . . . For the
reasons which follow, we conclude plaintiff's
17
burden was not met. (110 F. 3d at 144).
(Emphasis supplied)

In Moses v. American Nonwovens, Inc., 97 F. 3d 446 (11th
Circuit 1996), cert. den. 519 U.S. 1118 (1997), an employee who had

epilepsy was terminated from a job in which he worked near

dangerous machinery. 18 In sustaining summary judgment in favor of

the employer, the court held that "[t]he employee retains at all
times the burden of persuading the jury either that he was not a
direct threat or that reasonable accommodations were available,"

and that plaintiff Moses "failed to produce probative evidence that

he was not a direct threat." 97 F. 3d 446 at 447.

17
Plaintiff contends that the Amego case is distinguishable
because Borgialli was not responsible for the safety of others.
This contention is contrary to the record because concern for the
safety of others was included in plaintiff's job description.
18
In his workplace, Moses sat on a platform above fast-moving
press rollers, or underneath a conveyer belt with "in-running"
pinch points. He also worked next to exposed machinery that
reached temperatures of 350 degrees.
17
 In Robertson v. Neuromedical Center, 983 F. Supp. 669, (M.D.
La. 1997), affirmed, 161 F. 3d 292, (5th Cir. 1998), cert. denied,

119 S. Ct. 1575 (1999), the plaintiff was a neurologist with

attention deficit hyperactivity disorder, which interfered with his

ability to complete charts and interpret tests. In affirming the

entry of summary judgment in favor of his former employer, the

Fifth Circuit ruled that the neurologist was not a "qualified

individual" under the ADA because he was unable to perform the

essential functions of his job since his memory problems posed a
"direct threat" to the medical safety of his patients. 19
In Pikora v. Blue Cross & Blue Shield of Michigan, 970 F.
Supp. 591, 595 (E.D. Mich. 1997), an ADA action, the court found

that the employee, who suffered from depression and migraine

headaches, failed to establish that she was qualified for a
position as a customer service representative.

In Newman v. Chevron U.S.A., 979 F. Supp. 1085 (S.D. Tex.
1997), the court found that an employee afflicted with post-

traumatic stress disorder, which caused him to lose his
concentration and memory, was not qualified for his "extremely

dangerous" position of driving a truck filled with highly flammable

gasoline, with or without accommodation by his employer. In

granting summary judgment, the court noted the extreme risk to

others which such occupation presented: (979 F. Supp. 1090)

19
In this case, Dr. Robertson had "voiced his own concerns
about his ability to take care of patients, stating that it was
only a matter of time before he seriously hurt someone." 161 F. 3d
at 296.
18
 Assuming that Plaintiff is suffering from a
disablement as alleged in his Complaint, the
Court finds that Plaintiff is not qualified
for the position from which he was terminated
because he cannot perform the essential
function of driving a gasoline truck. . . .
Plaintiff was hired as a gas delivery driver.
By his own admission, Plaintiff's tasks
included driving an eighteen-wheeled semi-
tractor trailer from the terminal where his
truck was loaded with highly flammable
gasoline, to retail service stations, where
this highly flammable fluid was put into
underground storage tanks. Regardless of
one's mental state, hauling flammable gasoline
over the open road is extremely dangerous.
Undertaken with a condition that causes loss
of concentration and memory, such activity
approaches utter recklessness and blatant
disregard for the safety of others. . . .

In contrast to the above cases, some courts have suggested
that the burden of proof be imposed upon the employer when the

position in question does not obviously or necessarily include a

risk to others. The various rulings in Rizzo v. Children's World
Learning Centers, illustrate the importance of a careful evaluation
of the degree of risk which a disabled person presents in his or

her work situation. Rizzo involved a hearing-impaired employee of

a child care center who sued her former employer under the ADA. It

appears that she was demoted because the child care center believed

that plaintiff could not safely drive the school van. The district
court granted summary judgment for the employer. The Fifth Circuit

reversed and remanded the case upon a finding that there was an

issue of material fact as to whether the van driver was a direct

threat to the safety of others. Rizzo v. Children's World Learning
Centers, Inc., 84 F. 3d 758 (5th Cir. 1996).

19
 Following this remand, and after trial, the district court

entered judgment on a jury verdict for the employee, the employer

appealed, and that judgment was affirmed. Rizzo v. Children's World

Learning Centers, Inc., 173 F. 3d 254 (5th Cir. 1999). 20

Thereafter, the Fifth Circuit entered an order for rehearing en
banc, 187 F. 3d 680, and, again affirmed the judgment. Rizzo v.

Children's World Learning Centers, Inc., 213 F. 3d 209 (5th Cir.

2000), cert. denied, Child. World Learning Cen. Inc., v. Rizzo ,
_______Sup. Ct. ______, 2000 WL 1279326, 69 USLW 3166 (U.S. Oct.
30, 2000). In this last decision, the Fifth Circuit ruled that

since the employer had failed to object to the burden of proof
instruction, the trial court had not committed "plain error" in

instructing that the burden rested upon the employer and that, in

any case, the court would not resolve the burden of proof issue

which was raised for the first time on appeal. In addition, the

court ruled that the evidence supported the jury's finding that
plaintiff was able to drive the van safely and did not pose a

20
In instructing the jury, the trial court gave conflicting
instructions on which party had the burden of proving that
plaintiff was a "direct threat". The 5th Circuit agreed with the
Moses opinion in the 11th 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, but disagreed with Moses
"only insofar as that opinion allows for no exceptions to this
rule." In explaining this ruling the Fifth Circuit noted that ...
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."
173 F. 3d at pp. 259-260.
20
threat to her passengers. 21 In arriving at this decision, the

court cited the opinions in Moses v. American Nonwovens, Inc., and

EEOC v. Amego, Inc., supra, stating:

It is unclear from the statutory scheme who
has the burden on this issue. It may depend
on the facts of the particular case. The EEOC
suggested at argument that where the essential
job duties necessarily implicate the safety of
others, the burden may be on the plaintiff to
show that she can perform those functions
without endangering others; but, where the
alleged threat is not so closely tied to the
employee's core job duties, the employer may
bear the burden. . . . None of these issues
were raised in the district court and all we
decide today is that the district court did
not commit plain error in its charge. (213 F.
3d, note 4, at p. 213). (Citation omitted)
See also, Nunes v. Wal-Mart Stores, Inc., 164 F. 3d 1243 (9th
Cir. 1999), where the terminated employee, who suffered from

fainting episodes, sought damages under the ADA. The district
court entered summary judgment for the employer, finding that

plaintiff "posed a direct threat to customers of Wal-Mart." In
reversing and remanding the case, the circuit court found that

plaintiff had raised an issue of material fact as to the question
of "direct threat." In this case, it appears that in her capacity

as a cashier, plaintiff would not ordinarily be considered as a

"risk" to Wal-Mart customers. 22

21
At trial, plaintiff presented evidence of her driving
skills and an audiologist's report addressing safety concerns.
22
In Nunes, the employer had no medical evidence concerning
plaintiff's disability at the time she was terminated, and no
inquiry was made as to what accommodations might be made to
continue her employment.
21
 In Borgialli's appeal, he contends that regardless of the

potential harm involved, there must be additional findings

regarding other issues mentioned in the federal regulations

concerning the “likelihood that potential harm will occur,” the

duration of the risk, and the "imminence" of potential harm. The

district court in this case did weigh all factors to be considered

in determining "risk," and correctly concluded that plaintiff's

dangerous occupation was of determining weight in this case:

In analyzing the Mine's assessment, the
Court must evaluate the impact of Mr.
Borgialli's inherently dangerous occupation
. . . . A lapse in safety by a blaster could
easily result in serious bodily injury or
death for multiple individuals. The nature
and severity of the potential harm, therefore,
weighs heavily in a finding that Mr. Borgialli
posed a "direct threat."
* * * *
The Court finds that no reasonable jury could
fault the Mine for its decision to preclude
Plaintiff's return to work until it received
assurance from a doctor that Mr. Borgialli no
longer posed a safety risk. (Slip opinion at
p. 13). 23
In the case before us, the defendants were confronted with a

situation in which its employee, who worked with explosives and who

23
With regard to any question of "accommodation," the court
found that this was not an issue in the case:

In this case, because safety is vitally
important, it follows that an “unsafe”
employee could not be accommodated in the
blaster position. Plaintiff has consistently
maintained that he could have returned without
accommodation, because he was never disabled
or a threat. . . This case clearly revolves
around whether Plaintiff actually posed a
safety risk, not whether such a risk could be
accommodated. (Fn. 7, slip opinion at p. 13)
22
harbored a grudge against his supervisor, threatened suicide and

perhaps injury to others. The company obtained an independent

medical opinion from Dr. Silvestri who found that plaintiff could

not safely return to his work as a blaster. Defendants then

considered the report of Dr. Vuolo who believed that plaintiff

could perform the "cognitive and physical aspects of the job," but

with the proviso that he was not able at that time "to successfully

manage a relationship with Mr. Ospeth as his supervisor."

Defendants then requested that a third medical opinion be obtained,
but plaintiff refused to assent to this and demanded an immediate

return to work. Under all of these circumstances, we find that the
district court correctly found that defendants' motion for summary

judgment should be sustained:

The ADA does not require employers to take unnecessary risks

when dealing with a mentally or physically impaired employee in an

inherently dangerous job. Plaintiff was not a "qualified person"
to work in a position as a blaster because the defendants rightly

considered that he was a direct threat to others in the workplace.
It must also follow that the district court correctly found that

plaintiff was not a "qualified person" under the Wyoming Fair

Employment Practices Act, and that his state claim for breach of

contract must fail because he was, in fact, terminated for "cause"

as a safety risk.

Accordingly, the district court's grant of summary judgment in
favor of defendants is AFFIRMED.

23
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