                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 03-3599
GARY L. BRANHAM,
                                                 Plaintiff-Appellant,
                                 v.

JOHN W. SNOW, Secretary, United States
Department of Treasury/Internal
Revenue Service,
                                                Defendant-Appellee.

                          ____________
         Appeal from the United States District Court for the
         Southern District of Indiana, Indianapolis Division.
             No. 01 C 152—John Daniel Tinder, Judge.
                          ____________
   ARGUED JUNE 10, 2004—DECIDED DECEMBER 17, 2004
                     ____________



  Before CUDAHY, RIPPLE and ROVNER, Circuit Judges.
  RIPPLE, Circuit Judge. Gary L. Branham brought this action
under the Rehabilitation Act of 1973 (“Rehabilitation Act”
or “the Act”), 29 U.S.C. § 701 et seq., against his employer,
the Internal Revenue Service (“IRS”), for failing to hire him
as a Criminal Investigator in its Criminal Investigation
Division. The district court granted the IRS’ motion for
summary judgment on the ground that Mr. Branham was
not disabled for purposes of the Rehabilitation Act. For the
2                                                 No. 03-3599

reasons set forth in the following opinion, we now reverse
the judgment of the district court and remand the case for
proceedings consistent with this opinion.


                               I
                      BACKGROUND
A. Facts
  Mr. Branham has Type I insulin-dependent diabetes, a
noncurable metabolic condition characterized by elevated
blood sugar (hyperglycemia). Type I diabetics use insulin to
lower their blood sugar levels (the long term effects of
chronically elevated blood sugar include heart disease,
kidney disease, nerve disease and blindness). However, ex-
cessive use of insulin may cause too much sugar to leave the
bloodstream, leading to abnormally low blood sugar levels
(hypoglycemia). A person with mild to moderate hypogly-
cemia may experience symptoms including tremors, sweat-
ing, irritability, confusion and drowsiness. Eating simple
carbohydrates will raise the blood sugar level in an individ-
ual with mild to moderate hypoglycemia. Severe
hypoglycemia may lead to unconsciousness and convul-
sions and can be life-threatening.
  In order to keep his blood sugar at an appropriate level,
Mr. Branham follows a treatment regimen formulated by his
physician, Dr. Paul Skierczynski. Mr. Branham must check
his blood sugar level four to five times a day. He controls
                                          1
his blood sugar through the use of insulin and through diet


1
  Mr. Branham used to give himself insulin injections to control
his blood sugar; since the commencement of this case, he has
started utilizing an insulin pump. When the case was filed, he
                                                  (continued...)
No. 03-3599                                                     3

and exercise. The readings produced by Mr. Branham’s
blood sugar tests dictate the amount of insulin that he must
administer, as well as when and what type and amount of
food he can eat. It is possible for Mr. Branham to skip or
delay meals on occasion.
  Although Mr. Branham never has experienced a severe
hyperglycemic or hypoglycemic reaction, approximately
once every three weeks he does suffer from minor reactions
to low blood sugar, including trembling and sweating. At
all times, Mr. Branham keeps with him additional insulin
and a certain amount of carbohydrates, for use in the event
his blood sugar level falls below an acceptable level.
   Mr. Branham has worked for the IRS as a revenue agent
since 1986. In 1998, he applied for the position of criminal
investigator. The qualification standards for the position
of “Criminal Investigator—Treasury Enforcement Agent”
include requirements for undergraduate and graduate edu-
cation and work experience. There are further requirements
with respect to motor vehicle operation, use of firearms and
maximum entry age. Most pertinently, the standards estab-
lish general and particular medical requirements. Spe-
cifically, the standards clearly state that “these positions
require moderate to arduous physical exertion involving
walking and standing, use of firearms, and exposure to
inclement weather.” R.45, Attachment C-2 at 18. A para-
graph on “Special Medical Requirements” directs that “[s]ince
the duties of these positions are exacting and involve the
responsibility for the safety of others under trying condi-
tions . . . [a]ny condition that would hinder full, efficient

1
  (...continued)
was giving himself four injections a day, which his physician, Dr.
Skierczynski, characterized as “intensive treatment.” R.54, Ex.D
at 3 ¶ 6.
4                                                   No. 03-3599

performance of the duties of these positions or that would
cause the individual to be a hazard to himself/herself or to
others is disqualifying.” Id.
  The qualification standards point out that “[a]ppointment
will be contingent upon a candidate’s passing a pre-em-
ployment medical examination . . . to ascertain possession
of the physical and emotional requirements for the position.”
Id. Likewise, “[a]ny chronic disease or condition affecting
the . . . endocrine . . . system[ ] that would impair full per-
formance of the duties of the position is disqualifying.” Id.
at 19.
   In March 1999, Mr. Branham was notified by letter of his
“tentative selection” for the position of criminal investigator,
“pending the satisfactory outcome of [a] . . . physical
                2
examination.” R.45, Attachment C-4 (emphasis in original).
After Mr. Branham was given a physical exam, Dr. Richard
J. Miller, the Director of Federal Law Enforcement Programs
and Federal Occupational Health, concluded that Mr.
Branham was not medically qualified for the position of
criminal investigator. After reviewing Mr. Branham’s medi-
cal history, the results of his medical examination and the
report of his private physician, Dr. Miller determined that
Mr. Branham could not perform the essential functions of
the position with or without reasonable accommodation.
R.45, Attachment C-10. Dr. Miller noted that the job “re-
quires the ability to work irregular hours, respond to un-
anticipated requests, and react in a timely and appropriate
manner in an emergency or crisis.” Id. He opined that, if Mr.
Branham performed “essential job functions of a Special


2
   Mr. Branham’s own physician concluded that Mr. Branham
could perform the duties of a criminal investigator. R.53, Ex.4 at
4.
No. 03-3599                                                 5

Agent in the environment that these functions are generally
performed,” Mr. Branham likely would suffer “subtle and/or
sudden incapacitation,” which “would place the applicant
and others (other Special Agents, the public) at an extreme
risk of safety that would be unacceptable.” Id.
  In June 1999, Mr. Branham received a letter from the IRS
informing him that he was “medically disqualified for the
position of Criminal Investigator.” R.45, Attachment C-11 at
1. According to the letter, the IRS had determined that Mr.
Branham could not “perform the essential functions of the
job . . . with or without accommodation.” Id. The letter
further explained that
    [t]he position requires the ability to work irregular
    hours, respond to unanticipated requests and react in a
    timely and appropriate manner to an emergency or
    crisis. Subtle and/or sudden incapacitation would place
    the applicant and others (other Special Agents, the pub-
    lic) at an extreme risk of safety and would be unaccept-
    able.
Id. After the IRS notified Mr. Branham of its decision, he
unsuccessfully pursued an administrative appeal. He later
brought this action under the Rehabilitation Act.


B. District Court Proceedings
  Before the district court, the IRS sought summary judg-
ment against Mr. Branham. The IRS took the position that
Mr. Branham was not disabled under the Rehabilitation Act.
In the alternative, the IRS submitted that Mr. Branham was
not qualified for the position of criminal investigator
because he could not perform the essential functions of the
job without creating a safety threat to himself or others. Mr.
Branham moved for partial summary judgment against the
6                                                      No. 03-3599

IRS. He submitted that the IRS had failed to prove that he
presented a direct threat to his own safety or that of others.
   The district court determined that Mr. Branham was not
disabled for purposes of the Rehabilitation Act and granted
                                 3
summary judgment to the IRS. Specifically, the court found
that Mr. Branham’s diabetes, although constituting a
physical impairment, does not substantially limit him in the
major life activities of eating and caring for himself because
he can “take care of himself, although by dint of greater
effort than would be required of a non-diabetic,” and
because there is “no restraint on his physical activities and
he exercises regularly.” R.68 at 15. The district court distin-
guished this court’s decision in Lawson v. CSX Transporta-
tion, Inc., 245 F.3d 916 (7th Cir. 2001), on the grounds that
Mr. Branham’s own physician had found that Mr. Branham
had very good control of his diabetes, whereas Lawson had
been unable properly to control his blood sugar; as well, Mr.
Branham had shown himself capable of continued employ-
ment, while Lawson’s diabetes for several years had
rendered him unable to maintain employment. The district
court also distinguished this court’s decision in Nawrot v.
CPC International, 277 F.3d 896 (7th Cir. 2002), on the ground
that Mr. Branham’s symptoms were much less severe than
those experienced by the diabetic plaintiff in that case.


3
    The court noted that Mr. Branham faced a “double-bind”:
      On the one hand, in order to qualify as disabled under the
      Rehabilitation Act, the Plaintiff emphasizes those portions of
      the record, . . . which tend to show the gravity of his con-
      dition; but to demonstrate that he is nonetheless medically
      qualified and does not present a threat of harm, he does a
      180-degree turn and points to . . . his diabetes as being under
      excellent control.
R.68 at 10-11.
No. 03-3599                                                    7

  The district court also held that Mr. Branham was not dis-
abled for purposes of the Rehabilitation Act because the IRS
had not regarded him as disabled. The court found that Dr.
Miller did not believe Mr. Branham was substantially
limited in any major life activities.


                               II
                         ANALYSIS
A. Standard of Review
   We review the district court’s grant of summary judgment
de novo, viewing the record in the light most favorable to
Mr. Branham, the nonmoving party. Lawson, 245 F.3d at 922.
Summary judgment will be affirmed “if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c). Summary judgment “will not be sustained if
‘the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.’ ” Lawson, 245 F.3d at 922
(quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)).


B. Rehabilitation Act Framework
  The Rehabilitation Act protects a “qualified individual
with a disability” from discrimination solely because of his
disability in any program receiving federal financial assist-
ance. 29 U.S.C. § 794(a). To make out a prima facie case
under the Act, the plaintiff must show: that he “suffers from
a disability as defined under the Act; that he was otherwise
qualified for the job; that he was involved in programs
receiving federal financial assistance; and that he was
excluded from participation, denied benefits, or otherwise
8                                                 No. 03-3599

discriminated against solely because of his disability.” Silk
v. City of Chicago, 194 F.3d 788, 798 n.6 (7th Cir. 1999). On
this appeal, we are concerned with the questions of whether
Mr. Branham is “an individual with a disability” within the
meaning of the Act and whether he is “qualified” for the
employment position he seeks.
   The Rehabilitation Act defines an individual with a dis-
ability as “any person who (i) has a mental or physical
impairment which substantially limits one or more of such
person’s major life activities; (ii) has a record of such an
impairment; or (iii) is regarded as having such an impair-
ment.” 29 U.S.C. § 705(20)(B). The Rehabilitation Act
provides that the standards of the Americans with Disabili-
ties Act of 1990 (“ADA”), 42 U.S.C. § 12111 et seq., are to be
used in determining whether the Rehabilitation Act has been
violated in the employment context. 29 U.S.C. § 794(d);
Peters v. City of Mauston, 311 F.3d 835, 842 (7th Cir. 2002);
Silk, 194 F.3d at 798 n.7. Thus, we refer to the provisions and
standards of the ADA in determining whether there has
been a violation of the Rehabilitation Act in this context. An
individual with a disability is qualified if he “can perform
the essential functions of the employment position that such
individual holds or desires,” with or without reasonable
accommodation. 42 U.S.C. § 12111(8).


C. An Individual with a Disability
  Mr. Branham contends that, on this record, there is a
genuine issue of triable fact as to whether he should be con-
sidered an individual with a disability under the Rehabilita-
tion Act because his diabetes is a physical impairment that
substantially limits the major life activities of eating and
caring for himself. See 29 U.S.C. § 705(20)(B)(i). He also
claims that he is an individual with a disability under the
No. 03-3599                                                 9

Act because the IRS regarded him as having such an
impairment. See 29 U.S.C. § 705(20)(B)(iii).


                             1.
  We first consider the applicability of § 705(20)(B)(i). The
parties agree that diabetes is a physical impairment and that
eating and caring for oneself are major life activities. See
Lawson, 245 F.3d at 923. Therefore, the only question is
whether Mr. Branham’s diabetes substantially limits one of
these activities.
  For an impairment to limit substantially a major life ac-
tivity, “the impairment must make the individual ‘[u]nable
to perform a major life activity that the average person
in the general population can perform’ or ‘[s]ignificantly
restricted as to the condition, manner or duration under
which an individual can perform a particular major life
activity as compared to . . . the average person.’ ” Nawrot,
277 F.3d at 904 (quoting 29 C.F.R. § 1630.2(j)). An impair-
ment need not cause an “utter inabilit[y]” to perform the
major life activity in order to constitute a substantial lim-
itation on that activity. Bragdon v. Abbott, 524 U.S. 624, 641
(1998).
  The determination whether a particular person with an
impairment is substantially limited must be individualized;
in other words, we may not declare that all individuals who
suffer from a particular medical condition are disabled for
the purposes of the Rehabilitation Act. See Sutton v. United
Air Lines, 527 U.S. 471, 483-84 (1999). Underlining the
specificity that is required in making an individualized
determination of disability, the Supreme Court has noted
that it would be contrary to the language of the ADA to find
“all diabetics to be disabled,” regardless of whether an
individual diabetic’s condition actually impaired his daily
10                                                No. 03-3599

activities. Id. at 483. Thus, we emphasize that, even though
this court has determined on two separate occasions that a
person with Type I diabetes can be substantially limited
with respect to one or more major life activities, see Nawrot,
277 F.3d at 905; Lawson, 245 F.3d at 926, neither of those
cases dictates the outcome here. To hold otherwise would be
to contravene the Supreme Court’s determination that “both
the letter and the spirit” of the ADA require an individual-
ized assessment of each plaintiff’s “actual condition,” rather
than a “determination based on general information about
how an uncorrected impairment usually affects individu-
als.” Sutton, 527 U.S. at 483.
  Furthermore, we emphasize that our holding in this case
does not affect the principle that “diabetic status, per se, is
not sufficient to qualify as a disability.” Nawrot, 277 F.3d
904; see also Homeyer v. Stanley Tulchin Assocs., Inc., 91 F.3d
959, 962 (7th Cir. 1996) (“Some impairments may be dis-
abling for particular individuals but not for others . . . .”).
For example, a “ ‘diabetic whose illness does not impair his
or her daily activities,’ after utilizing medical remedies such
as insulin, should not be considered disabled.” Lawson, 245
F.3d at 926 (quoting Sutton, 527 U.S. at 483). An individual-
ized inquiry into each plaintiff’s condition remains the rule
in cases under the Rehabilitation Act and the ADA.
  In this case, it is undisputed that Mr. Branham’s treatment
regimen allows him to avoid severe hypoglycemic and
hyperglycemic episodes, and protects him from the long
term consequences of Type I diabetes (which include heart
disease, kidney disease, nerve disease and blindness). How-
ever, that is in no way dispositive of our analysis, because
“[t]he use . . . of a corrective device does not determine
whether an individual is disabled; that determination
depends on whether the limitations an individual with an
impairment actually faces are in fact substantially limiting.”
No. 03-3599                                                 11

Sutton, 527 U.S. at 488 (emphasis in original). A court deter-
mining whether a plaintiff’s impairment substantially limits
a major life activity must consider “the plaintiff’s condition
as it exists after corrective or mitigating measures used to
combat the impairment.” Lawson, 245 F.3d at 925. Therefore,
we must also take into account “any negative side effects”
that Mr. Branham suffers “from the use of mitigating
measures.” Sutton, 527 U.S. at 484.
   For Mr. Branham, these negative side effects are many. He
is significantly restricted as to the manner in which he can
eat as compared to the average person in the general
population. His dietary intake is dictated by his diabetes,
and must respond, with significant precision, to the blood
sugar readings he takes four times a day. Depending upon
the level of his blood sugar, Mr. Branham may have to eat
immediately, may have to wait to eat, or may have to eat
certain types of food. Even after the mitigating measures
of his treatment regimen, he is never free to eat whatever he
pleases because he risks both mild and severe bodily re-
actions if he disregards his blood sugar readings. He must
adjust his diet to compensate for any greater exertion, stress,
or illness that he experiences.
  We must conclude that, on the record before us, a trier
of fact rationally could determine that Mr. Branham’s
diabetes and the treatment regimen that he must follow sub-
stantially limit him in the major life activity of eating.
Accordingly, we cannot accept the district court’s determi-
nation that summary judgment was appropriate on the
question of whether Mr. Branham is substantially limited in
a major life activity.
                              2.
  The district court also granted the IRS summary judgment
on the question of whether Mr. Branham is an individual
with a disability under the Rehabilitation Act because the
12                                               No. 03-3599

IRS regarded him as having an impairment which limited
him substantially in one or more major life activities. See 29
U.S.C. § 705(20)(B)(iii). A plaintiff may prove that he is an
individual with a disability under the “regarded as” prong
of the Rehabilitation Act “by showing that either: 1) the
employer mistakenly believes the employee has a physical
impairment that substantially limits a major life activity; or
2) the employer mistakenly believes that an actual, non-
limiting impairment substantially limits a major life activ-
ity.” Peters, 311 F.3d at 843. On this record, we see no
evidence that the IRS regarded Mr. Branham as dis-
abled—that is, although the parties agree that diabetes is a
physical impairment, there is no evidence that the IRS
mistakenly believed that Mr. Branham’s diabetes substan-
tially limited him in one or more major life activities. Our
cases make clear that “an employer does not regard a per-
son as disabled simply by finding that the person cannot
perform a particular job.” Id. Thus, summary judgment on
the “regarded as” claim was properly granted.


D. Otherwise Qualified
  The Rehabilitation Act prohibits discrimination based
solely on a person’s disability, but it does not compel an
employer entirely to disregard a person’s disabilities. See
Knapp v. Northwestern Univ., 101 F.3d 473, 482 (7th Cir.
1996), cert. denied, 520 U.S. 1274 (1997). “[A]lthough a dis-
ability is not a permissible ground for assuming an inability
to function in a particular context, the disability is not
thrown out when considering if the person is qualified for
the position sought.” Id. (citing Southeastern Cmty. Coll. v.
Davis, 442 U.S. 397, 405-06 (1979)).
  The IRS contends it is entitled to summary judgment,
regardless of Mr. Branham’s status as an individual with a
No. 03-3599                                                  13

disability because Mr. Branham poses a direct threat to the
health or safety of others and therefore is not qualified for
the position he seeks. Mr. Branham contends there is a
genuine issue of material fact as to whether he is qualified
for the position.
  In order to determine whether an individual is qualified
under the ADA standards, this court looks first at whether
the individual “satisfies the prerequisites of the job, in terms
of skills or experience”; second, the court considers whether
the individual “can perform the essential functions of the
job with or without a reasonable accommodation.” Peters,
311 F.3d at 845; see also Bay v. Cassens Transp. Co., 212 F.3d
969, 974 (7th Cir. 2000); 29 C.F.R. § 1630.2(m). The IRS does
not dispute that Mr. Branham meets what it calls “the basic
qualifications for the position.” R.44 at 24. Rather, it con-
tends that he cannot perform the essential functions of the
job with or without a reasonable accommodation because
his physical condition poses a risk of harm to himself and
others.
  In determining the essential functions of a job, we may
consider, but are not limited to, “the employer’s judgment
as to what functions of a job are essential, and if an em-
ployer has prepared a written description before . . . inter-
viewing applicants for the job, this description shall be
considered evidence of the essential functions of the job.” 42
U.S.C. § 12111(8); see also 29 C.F.R. § 1630.2(n)(3). We shall
not second-guess an employer’s judgment as to the essential
functions of a job. Peters, 311 F.3d at 845.
  The plaintiff in a Rehabilitation Act case or an ADA case
generally bears the burden of proof on the question of
whether he is qualified to perform the essential functions of
a job with or without reasonable accommodation. Bay, 212
F.3d at 973. Because Mr. Branham, the nonmoving party
with respect to the motion for summary judgment on the
issue of qualification, would bear the burden of proof at
14                                                No. 03-3599

trial, he must “make a showing sufficient to establish the
existence of [the] element essential” to his case—that is, that
he can perform the essential functions of the job. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). Upon examination
of the record, we must conclude that Mr. Branham has
raised a genuine issue of fact as to whether he can perform
the essential functions of the criminal investigator position.
Therefore, he survives the IRS’ summary judgment motion.
  In its motion for summary judgment, the IRS asserted that
there will sometimes be a need for criminal investigators “to
work irregular hours, respond to unanticipated requests,
and react appropriately to an emergency or crisis.” R.44 at
26. Mr. Branham, on the other hand, has offered his own
testimony and that of his personal physician,
Dr. Skierczynski, that he is able to work long hours and to
deal with stress. Dr. Skierczynski, for instance, stated in an
affidavit that he believed Mr. Branham would have no
difficulty working long or irregular hours, reacting appro-
priately to a stressful crisis or emergency, and adapting to
changing circumstances. R.53, Ex.4 at 4. Dr. Skierczynski
also stated that he believed Mr. Branham would be able to
perform the duties of a criminal investigator safely. R.53,
Ex.4 at 4.
  The real dispute between the parties seems to be not
simply whether Mr. Branham can withstand the working
conditions that may be imposed on a criminal investigator,
but whether he can continue to function safely in those con-
ditions. In fact, the only essential function of the position
that appears to be in question is the specification, included
in the qualification standards for the position, that provides
that “[a]ny condition that would hinder full, efficient
performance of the duties of these positions or that would
cause the individual to be a hazard to himself/herself or to
others is disqualifying.” R.45, Attachment C-2 at 18. The IRS
No. 03-3599                                                       15

submits that Mr. Branham cannot perform the essential
functions of the criminal investigator position because Dr.
Miller found that the demands of the job would place him
at risk of “subtle and/or sudden incapacitation,” which
“would place the applicant and others (other Special
Agents, the public) at an extreme risk of safety that would
be unacceptable.” R.45, Attachment C-10. The IRS contends
that the working conditions that may be imposed on a crim-
inal investigator would result in Mr. Branham becoming a
safety threat.
  This aspect of the qualification standards incorporates the
                                                                4
“direct threat” defense that is part of the law of the ADA.
“Direct threat” has been defined as “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.” 29 C.F.R. § 1630.2(r). The key inquiry
when considering whether an employee is a direct threat is
“not . . . whether a risk exists, but whether it is significant.”
Bragdon, 524 U.S. at 649. The assessment of risk “must be
based on medical or other objective evidence” and the


4
    Title I of the ADA provides:
      (a) It may be a defense to a charge of discrimination under
      this chapter that an alleged application of qualification
      standards . . . that screen out or tend to screen out or other-
      wise deny a job or benefit to an individual with a disability
      has been shown to be job-related and consistent with bus-
      iness necessity, and such performance cannot be accom-
      plished by reasonable accommodation . . . .
      (b) The term “qualification standards” may include a re-
      quirement that an individual shall not pose a direct threat to
      the health or safety of other individuals in the workplace.
42 U.S.C. § 12113.
16                                                         No. 03-3599

determination that a significant risk exists must be objec-
tively reasonable. Id. at 649-50. A court considering the
presence of a direct threat must take into account several
characteristics of the harm allegedly posed by the individual
with a disability. See Sch. Bd. of Nassau County v. Arline, 480
U.S. 273, 287-88 (1987); see also Bragdon, 524 U.S. at 649
(ADA’s direct threat provision and regulations codify
Arline).
  The parties disagree about whether Mr. Branham or the
IRS bears the burden of proving or disproving that Mr.
Branham is a direct threat; the IRS asserts it is Mr.
Branham’s responsibility to prove he is not a direct threat,
and Mr. Branham alleges the IRS must prove as a defense
that he is a direct threat. This court has stated that “it is the
employer’s burden to show that an employee posed a direct
threat to workplace safety that could not be eliminated by
                                      5
a reasonable accommodation.” Dadian v. Vill. of


5
   We note that there is a dispute among the circuits regarding the
burden of proof with respect to the question of whether
an employee poses a direct threat to his own safety or that of
others. Some circuits place the burden of proof on the defendant
employer. See, e.g., Hutton v. Elf Atochem N. America, 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 con-
stitutes a direct threat.”); EEOC v. Chrysler Corp., 917 F. Supp.
1164, 1171 (E.D. Mich. 1996) (“[I]t is defendant’s burden to prove
that [plaintiff] was in fact a ‘direct threat.’ ”), rev’d on other grounds,
No. 97-1793, 1998 WL 879589 (6th Cir. Nov. 25, 1998) (unpub-
lished disposition). Other circuits place the burden of proof on
the plaintiff employee, at least in some circumstances. See, e.g.,
McKenzie v. Benton, No. 02-2084, 2004 WL 2526450, at *9 (10th Cir.
Nov. 9, 2004) (plaintiff bears burden of proof on question of
direct threat where “job qualifications . . . properly included the
                                                            (continued...)
No. 03-3599                                                            17



5
   (...continued)
essential function of performing [plaintiff’s] duties without en-
dangering her co-workers or members of the public with whom
she came in contact”); EEOC v. Amego, Inc., 110 F.3d 135, 144 (1st
Cir. 1997) (“[I]t is the plaintiff’s burden to show that he or she can
perform the essential functions . . . 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.”); Moses
v. American Non-Wovens, Inc., 97 F.3d 446, 447 (11th Cir. 1996) (per
curiam) (“The employee retains at all times the burden of persuad-
ing the jury . . . that he was not a direct threat . . . .”), cert. denied,
519 U.S. 1119 (1997). The Fifth Circuit has drawn a line some-
where in between the two positions. See Rizzo v. Children’s World
Learning Ctrs., Inc., 173 F.3d 254, 259-60 (5th Cir. 1999) (“[T]he
burden of proof is on the plaintiff to prove that, as a qualified
individual, she is not a direct threat to herself or others. . . .
[W]hen 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.”),
aff’d en banc, 213 F.3d 209 (5th Cir. 2000) (holding defendant
failed to preserve burden of proof issue for appeal), and cert.
denied, 531 U.S. 958 (2000). Commentators have suggested that the
confusion stems from the language of the ADA itself, since the
statute includes the direct threat language in a section entitled
“Defenses,” which suggests it is an affirmative defense on which
the defendant bears the burden of proof, but also classifies the
direct threat analysis as a “qualification standard,” which
suggests that the plaintiff bears the burden of proving that he or
she does not constitute a direct threat, as part of the burden to
prove he or she is qualified. 42 U.S.C. § 12113. For further
discussion, see, for instance, Jon L. Gillum, Tort Law and the
Americans With Disabilities Act: Assessing the Need for a Realign-
ment, 39 Idaho L. Rev. 531, 539, 565-67 (2003). We see no reason
to revisit the established law of this circuit in this case. Our
                                                          (continued...)
18                                                  No. 03-3599

Wilmette, 269 F.3d 831, 841 (7th Cir. 2001) (citing EEOC v.
AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1283-84 (7th Cir.
1995)). When the moving party will bear the burden of proof
on an issue at trial, that party “must establish affirmatively
the lack of ‘sufficient evidence favoring the nonmoving
party for a jury to return a verdict for that party,’ ” in order
to obtain summary judgment on the issue. Reserve Supply
Corp. v. Owens-Corning Fiberglass Corp., 971 F.2d 37, 42 (7th
Cir. 1992) (quoting Anderson, 477 U.S. at 249). Thus, in order
to prevail on its summary judgment motion asserting that
Mr. Branham posed a direct threat to himself and others, the
IRS must show that the evidence on the question of direct
threat is so one-sided no reasonable jury could find for Mr.
Branham. See Anderson, 477 U.S. at 251-52.
  In order to determine whether Mr. Branham is a direct
threat and therefore not qualified to perform the job of
criminal investigator, we look to several factors including:
“(1) the duration of the risk; (2) the nature and severity of
the potential harm; (3) the likelihood that potential harm
will occur; and (4) the imminence of potential harm.”
Emerson v. N. States Power Co., 256 F.3d 506, 514 (7th Cir.
2001); see also 29 C.F.R. § 1630.2(r). In light of these consider-
ations, we must conclude that the record has created a
genuine issue of triable fact as to whether Mr. Branham’s
physical condition presents a significant risk of substantial
harm to himself or others.



5
  (...continued)
earlier decision finds support in the plain wording of the statute
and in common sense. The agency is certainly in the best position
to furnish the court with a complete factual assessment of both
the physical qualifications of the candidate and of the demands
of the position. Here, the agency simply has not met that burden.
No. 03-3599                                                   19

  With respect to the question of the duration of the risk, the
IRS provided testimony that Mr. Branham had experienced
significant long term and short term changes in his blood
glucose levels that it claims could affect his performance as
a criminal investigator. Mr. Branham, on the other hand,
contends that, although his diabetes cannot be cured, he can
control the condition so effectively that there is no “real . . .
duration of risk.” R.42 at 12. Dr. Skierczynski, Mr. Branham’s
physician, testified that Mr. Branham tests his blood sugar
levels several times a day, has exceptional control over his
blood glucose levels and has “full awareness of all his
reactions,” allowing him to respond promptly to low blood
sugar levels. R.53, Ex.4 at 4. Viewing the evidence, as we
must, in the light most favorable to Mr. Branham, we
believe that a reasonable trier of fact could conclude that the
duration of any risk would not be significant.
  With respect to the second factor under the direct threat
analysis, the nature and severity of the risk, the IRS con-
tends that drastic changes in Mr. Branham’s blood sugar
level could “significantly degrade his abilities to function as
a special agent, potentially endangering Mr. Branham, his
colleagues and the public.” R.54 at 12. Mr. Branham argues
that, although the risks of severe hypoglycemia can include
incapacitation, confusion, coma and death, he never has lost
consciousness and he never has experienced physical or
mental incapacitation as a result of mild hypoglycemia. We
emphasize that at this point, the summary judgment stage,
we must view the facts in the light most favorable to the
nonmoving party, in this case, Mr. Branham, and we must
draw all inferences in his favor. A reasonable trier of fact
could conclude that any hypoglycemia experienced by Mr.
Branham will not impair him in the performance of his
duties.
20                                                 No. 03-3599

   We turn to the third factor in the direct threat analysis, the
likelihood of the potential harm. One of the IRS’ experts, Dr.
Cohen, an endocrinologist, found that the program of
intensive treatment which Mr. Branham was following at
the start of this case was “associated with increased risk” of
severe hypoglycemia. R.45, Ex.E at 3. He also found that
some of the job responsibilities of the criminal investigator
“may increase” Mr. Branham’s risk of experiencing severe
hypoglycemia. R.45, Ex.E at 3. On the other hand, Dr.
Skierczynski has testified in an affidavit that the risk of Mr.
Branham suffering a severe hypoglycemic reaction was 0.2%
per year. R.53, Ex.4 at 2. As Mr. Branham points out, the IRS
has not presented any statistical evidence of the likelihood
that the harm it fears will occur. In light of the evidence Mr.
Branham has put forth, a reasonable jury could conclude
that the likelihood of the harm that the IRS fears is quite
low.
  With respect to the fourth factor in the test, the imminence
of the potential harm, Mr. Branham argues there is no
evidence he poses an imminent threat, because he
“has never suffered any period of incapacitation or other
hypoglycemic episode and there is no medical evidence
indicating that he will do so in the future.” R.42 at 16. Fur-
thermore, he cites several cases in which an at-work episode
has preceded a court’s finding that an employee was not
qualified by reason of being a direct threat, see, e.g., Emerson,
256 F.3d at 514; Hutton v. Elf Atochem N. America, Inc., 273
F.3d 884 (9th Cir. 2001), and argues that, because he has
never suffered a severe hypoglycemic episode on the job,
there is no indication he presents an imminent threat. The
IRS simply responds that “such an assertion is not sup-
ported by logic.” R.54 at 18.
  We have no reason to determine whether an on-the-job
incident is a prerequisite for finding that an employee pre-
No. 03-3599                                                21

sents an imminent risk of harm. However, Mr. Branham has
put forth evidence that he does not present an imminent risk
of harm. On this record, a reasonable trier of fact could
conclude that Mr. Branham can prevent severe
hypoglycemia from occurring by maintaining his treat-
ment regimen and vigilantly testing his blood sugar levels,
thereby allowing himself to calculate accurately how much
insulin he should administer himself and how much and
what type of food he will need to ingest. On this record, a
reasonable trier of fact could conclude that this practice
eliminates any imminence with respect to the risk of harm.
  On the record in this case, a reasonable trier of fact could
find that Mr. Branham is qualified for the position of
criminal investigator. Therefore, we must conclude that the
IRS is not entitled to summary judgment on the question of
Mr. Branham’s qualifications. See Anderson, 477 U.S. at 248
(“summary judgment will not lie . . . if the evidence is such
that a reasonable jury could return a verdict for the non-
moving party”). Mr. Branham has raised a genuine issue of
material fact as to whether he can perform the essential
functions of the position of criminal investigator without
becoming a threat to the safety of himself or others. On this
record, the agency has not established otherwise.




                        Conclusion
  For the reasons set forth in this opinion, the judgment of
the district court is reversed and the case is remanded for
proceedings consistent with this opinion. Mr. Branham may
recover his costs in this court.


                                 REVERSED and REMANDED
22                                          No. 03-3599

A true Copy:
      Teste:

                  ________________________________
                      Clerk of the United States Court of
                        Appeals for the Seventh Circuit




               USCA-02-C-0072—12-17-04
