                      United States Court of Appeals,

                              Eleventh Circuit.

                                No. 95-6677.

                  Mark Anthony MOSES, Plaintiff-Appellant,

                                     v.

             AMERICAN NONWOVENS, INC., Defendant-Appellee.

                              Sept. 27, 1996.

Appeal from the United States District Court for the Northern
District of Alabama. (No. CV-94-C-2297-W), U. W. Clemon, District
Judge.

Before EDMONDSON and DUBINA, Circuit Judges, and FARRIS*, Senior
Circuit Judge.

     PER CURIAM:

     Mark Moses has epilepsy.       He brought a claim against American

Nonwovens, Inc. alleging that it fired him in violation of the

Americans with Disabilities Act.          42 U.S.C. § 12101 et seq.   Moses

appeals     the    district   court's     summary   judgment.    We   have

jurisdiction.       28 U.S.C. § 1291.     We affirm.

         To defeat a motion for summary judgment, the nonmoving party

may not rely on "mere allegations."           Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202

(1986) (citation omitted).        It must raise "significant probative

evidence" that is "sufficient" for the jury "to return a verdict

for that party."       Id. at 249, 106 S.Ct. at 2510.    Summary judgment

may be granted if the evidence is "merely colorable."           Id.

         The ADA provides that an employer may not "discriminate

against a qualified individual with a disability because of the

     *
      Honorable Jerome Farris, Senior U.S. Circuit Judge for the
Ninth Circuit, sitting by designation.
disability ... in regard to ... [the] discharge of employees...."

42 U.S.C. § 12112(a).        An employer may fire a disabled employee if

the disability renders the employee a "direct threat" to his own

health or safety.       42 U.S.C. §§ 12113(a), (b); see also 29 C.F.R.

§ 1630.2(r).      But there is no direct threat defense if the employer

could have made "reasonable accommodation[s]." 42 U.S.C. 12113(a).

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.             See Benson v. Northwest Airlines,

Inc., 62 F.3d 1108, 1112 (8th Cir.1995) (citing St. Mary's Home

Center v. Hicks, 509 U.S. 502, 506-13, 113 S.Ct. 2742, 2747-50, 125

L.Ed.2d 407 (1993)).

         American admits that it fired Moses because of his epilepsy,

and Moses does not deny that there was a significant risk that if

he had continued working at American, he would have had seizures on

the job. The issues are whether Moses produced evidence from which

a reasonable jury could conclude (1) that he was not a direct

threat or (2) that reasonable accommodations were available.

         Moses failed to produce probative evidence that he was not a

direct threat.         Each of Moses's assigned tasks presented grave

risks to an employee with a seizure disorder.                          As a product

inspector, Moses sat on a platform above fast-moving press rollers.

As   a    web   operator,    he    sat   underneath      a   conveyer        belt   with

in-running pinch-points. And as a Hot Splicer Assistant, he worked

next to exposed machinery that reached temperatures of 350 degrees

Fahrenheit.        Moses     maintains      that    as   long     as    he    followed

instructions and worked "downstream" from the equipment, there was
no risk of harm.      But the only supporting evidence to which he

points is the deposition of Danny Avery, a manager at American, who

stated that he always warned new employees that they should work

"upstream" from the motion of the equipment so that it would "push

you out of it rather than pull you into it."               This testimony is

insufficient:    first, Avery suggests that it was more dangerous to

work downstream, but he does not imply that it would be safe for

epileptics to work upstream; second, Avery is referring to work on

a specific machine, not to all of the tasks Moses was expected to

perform.

        Even though there is no genuine issue of material fact as to

whether Moses was a direct threat, he could still defeat American's

motion     by   producing     probative        evidence     that     reasonable

accommodations were available.          But Moses points to no probative

evidence suggesting that American could have made his work sites

safe.

     Moses's    primary     arguments    are    that     American    failed   to

investigate     his   condition   and     failed    to    consider    possible

accommodations. Neither is persuasive. When American fired Moses,

it knew he was taking medication for his epilepsy but that his

medication was not controlling his seizures.              This is not a case

like Kelly v. Bechtell Power Corp., 633 F.Supp. 927 (S.D.Fla.1986),

in which the employee, although diagnosed as epileptic, had never

suffered a seizure, and the employer had no basis for concluding

that he was likely to suffer one.          Id. at 933 (interpreting the

Florid Human Rights Act).

     We are more troubled by the evidence that American failed to
investigate possible accommodations.           No language in the ADA

mandates a pretermination investigation, but the EEOC advises that

"the employer must determine whether a reasonable accommodation

would ... eliminate" the direct threat.         29 C.F.R. §§ 1630.2(r),

1630.9, Interp. Guidance. We are persuaded that American's failure

to investigate did not relieve Moses of his burden of producing

probative evidence that reasonable accommodations were available.

A contrary holding would mean that an employee has an ADA cause

even   though   there   was   no   possible   way   for   the   employer   to

accommodate the employee's disability.          Stated differently:        An

employer would be liable for not investigating even though an

investigation would have been fruitless.            We are confident that

although the ADA does not mandate a pretermination investigation,

the possibility of an ADA lawsuit will, as a matter of practice,

compel most employers to undertake such an investigation before

terminating a disabled employee.

       The district court did not err in granting American's motion

for summary judgment.

       AFFIRMED.
