By Dave Strausfeld, J.D.
The Wisconsin Division of Motor Vehicles was not required to rely on a direct-threat defense in a discriminatory discharge suit brought by an employee with a mental health disability whose behavior raised safety concerns, so it did not need to bear the burden of proof associated with that affirmative defense, held the Seventh Circuit, affirming summary judgment dismissing her Rehabilitation Act claim. Rather, it could simply argue she failed to make a showing that she was "otherwise qualified" for her position, and on this issue she bore the evidentiary burden. Sending her for an independent medical examination did not necessarily trigger the direct-threat framework (Felix v. Wisconsin Department of Transportation
, July 6, 2016, Rovner, I.).
DMV fires employee with mental health disability.
A 15-year DMV employee whose duties included administering road tests to new drivers felt a panic attack coming on the morning of April 18, 2013. She asked her supervisor for permission to take a break to calm herself down, and he said fine. About 30 minutes later, he heard muffled screaming coming from the public lobby, and when he arrived in the lobby area, he saw the employee on the floor behind one of the work counters. It appeared she had attempted to cut her wrists, although the cuts were shallow; she vocally bemoaned the dullness of the knife she had used; and she repeatedly said she wanted to die. She also was kicking her legs and crying out. Emergency personnel were summoned, and she was ultimately transported to a hospital.
After placing her on leave, DMV required her to submit to an IME, and when the examiner concluded she could not safely return to work, DMV fired her.
She then filed suit under the Rehabilitation Act, which incorporates ADA standards and covers programs that receive federal financial assistance. The district court granted summary judgment against her, and she appealed.
Dispute over burden of proof.
"As they were below," the Seventh Circuit began by observing, "the parties are at odds as to the particular legal criteria and burdens that govern their dispute." According to DMV, the employee bore the burden of showing that she was "otherwise qualified" to perform the essential functions of her job and could not make that showing. DMV relied on Palmer v. Circuit Ct. of Cook Cnty.
, a Seventh Circuit decision holding that when an employee engages in workplace behavior that is unacceptable (there, threatening her supervisor with bodily harm), the behavior itself justifies the employee’s termination irrespective of whether it was precipitated by a mental health disability. "The Act protects only ‘qualified’ employees, that is, employees qualified to do the job for which they were hired; and threatening other employees disqualifies one," the Palmer
The employee, on the other hand, contended that DMV was raising a direct-threat affirmative defense and thus bore the burden of proof. If DMV’s motion for summary judgment were grounded in the statutory affirmative defense that she presented a direct threat to safety, DMV would have had to do more than simply identify evidence supporting the defense; it would have had to demonstrate that the evidence was so one-sided that no reasonable jury could resolve the defense in the employee’s favor. The district court, however, did not evaluate DMV’s summary judgment motion through the lens of the direct-threat framework, and the employee maintained that this amounted to legal error.
She reasoned that whenever an employer has decided to have an employee professionally evaluated to assess what risk, if any, she poses to herself or to her co-workers, the employer is necessarily focusing on the future rather than on anything the employee may have done in the past, and thus a fitness-for-duty examination necessarily invokes the direct-threat framework.
"There necessarily is some logical overlap," the appeals court acknowledged in responding to the employee’s argument, "between the direct-threat framework and Palmer
." Even so, it was not necessary to apply the direct-threat framework to DMV's motion for summary judgment. For one thing, DMV’s briefs did not center on the direct-threat defense but rather on its argument under Palmer
that she was not "otherwise qualified" for her position.
And DMV’s decision to have her evaluated for fitness for duty did not "inevitably place this case within the direct-threat framework." When a disruptive incident like the April 18th episode has occurred, the court explained, an employer may seek a professional assessment before it decides, "within the Palmer
framework," whether the employee is qualified for continued employment. Requiring the employee to undergo an IME did not mean the case needed to be assessed under the direct-threat framework.
There also appeared to be a larger flaw in the employee’s argument. "As a number of courts have recognized, when an employee’s disability has actually resulted in conduct that is intolerable in the workplace, the direct-threat defense does not apply: the case is no longer about potential but rather actual dangers that an employee’s disability poses to herself and others." Finding no error in the district court’s summary judgment ruling, the appeals court affirmed it.