                         REVISED - June 28, 2000

                    UNITED STATES COURT OF APPEALS
                         For the Fifth Circuit



                               No. 97-50367




                              VICTORIA RIZZO,

                                                          Plaintiff-Appellee,


                                  VERSUS


               CHILDREN’S WORLD LEARNING CENTERS, INC.,


                                                      Defendant-Appellant.



           Appeal from the United States District Court
                For the Southern District of Texas

                               May 26, 2000

Before KING, Chief Judge, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH,
WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART,
PARKER and DENNIS, Circuit Judges.

DAVIS, Circuit Judge.

     We took this case en banc primarily to determine whether, in

this fully-tried case, the district court erred in the instructions

it gave to the jury in Victoria Rizzo’s action under the Americans

with Disabilities Act and, secondarily, whether the record supports

the verdict.     The jury, in response to special interrogatories,

rendered   a   verdict   in   favor   of   Ms.   Rizzo.      After   carefully
reviewing the record, we conclude that the district court committed

no plain error in submitting this case to the jury and that the

evidence amply supports the verdict.             We therefore affirm the

judgment of the district court.

                                      I.

       Appellee, Ms. Victoria Rizzo, was employed by appellant,

Children’s World Learning Centers, Inc. (CWLC), as a teacher’s aid.

One of her duties was driving a van transporting children to and

from   school.    Ms.   Rizzo   had   a    hearing   impairment   which   she

disclosed to CWLC before she was hired.         After observing Ms. Rizzo

in the classroom, a parent expressed concern about whether Ms.

Rizzo’s hearing impairment placed the children at risk while they

were riding as passengers in Ms. Rizzo’s van.          Shortly thereafter,

CWLC relieved Ms. Rizzo of her driving duties because of their

concern that her hearing impairment prevented her from safely

driving the van and supervising the children in the van.

       The district court initially granted summary judgment in favor

of CWLC on grounds that the employer took the personnel action for

a legitimate non-discriminatory reason and Rizzo failed to show

that this reason was pretextual.          Ms. Rizzo appealed to this court

and we concluded that issues of fact were presented that required

resolution at trial. Rizzo v. Children’s World Learning Centers,

Inc., 84 F.3d 758 (5th Cir. 1996)(Rizzo I).                We stated that

“[w]hether one is a direct threat [to the safety of herself or



                                      2
others] is a complicated, fact intensive determination, not a

question of law.    To determine whether a particular individual

performing a particular act poses a direct risk to others is a

matter for the trier of fact to determine after weighing all of the

evidence about the nature of the risk and the potential harm.”   Id.

at 764.   On the burden of proof, we stated that “[a]n employee who

is a direct threat is not a qualified individual with a disability.

As with all affirmative defenses, the employer bears the burden of

proving that the employee is a direct threat.”    Id.

     On remand, the case was tried to a jury, which rendered a

verdict in favor of Ms. Rizzo.        The district court entered a

judgment on the verdict and a divided panel affirmed.     Rizzo v.

Children’s World Learning Centers, Inc., 173 F.3d 254 (5th Cir.

1999)(Rizzo II).   The dissent took the position that the district

court erred in two respects: first, in placing the burden of proof

on the defendant to establish that Ms. Rizzo was a direct threat to

the children she was transporting in the van, and; second, in

failing to grant defendant’s motion for judgment as a matter of law

on grounds that the plaintiff failed to produce sufficient evidence

to support the implicit jury finding that she engaged in the

interactive process to provide information to the employer about

the extent of her disability.         We took this case en banc to

consider these two issues.

                                II.

                                 A.

                                 3
       CWLC first challenges the district court’s charge to the jury,

explaining which party had the burden of establishing that Ms.

Rizzo was a direct threat to her student passengers.

       In charging the jury, the district court first instructed the

jury that the plaintiff, Rizzo, had the burden of proving the

essential elements of her claim.           The court explained that this

required the plaintiff to prove that she was a qualified person

with a disability or a person who “can perform the essential

functions of the employment position . . . and who does not pose a

‘direct threat’ to the health and safety of herself or others.”

Neither party objected to this charge and no argument is advanced

suggesting that it is erroneous.

       The court’s next instruction explained the employer’s defense

that Ms. Rizzo was removed as the school van driver because CWLC

thought she posed a direct threat to the health and safety of

herself and others. The district court -- faithful to our remand

order in Rizzo I -- charged that the “defendant has the burden to

prove by a preponderance of the evidence that a direct threat

exists.”     No objection was made to this charge.1


   1
    The dissent disagrees with our reading of the record and takes the position
that the defendant objected to the court’s instruction placing the burden of
proof on the defendant to establish its affirmative defense of “direct threat.”
Some background is helpful to understand why the objection the defendant points
to on pages 452 and 453 (Volume V) of the record does not preserve this issue for
appeal.
   The direct threat issue was presented in the district court in two ways:
First, plaintiff was required to prove, as one of the elements of her case, that
she was a “qualified individual with a disability.” The court defined this
phrase as one who can perform the essential functions of the employment position
without posing a “direct threat” to the health or safety of herself or others.

                                       4
       The question of who bears the burden of establishing that an

individual’s disability poses a direct health or safety threat to

the disabled employee or others is not a simple one.               A number of

cases either hold or suggest that direct threat is an affirmative

defense on which the defendant ordinarily has the burden of proof.2

Other cases hold to the contrary.3          Because neither side objected

to either of the district court’s instructions described above, we

review this challenge for plain error.

       As we stated in Highlands Ins. Co. v. National Union Fire Ins.

Co. of Pittsburgh, 27 F.3d 1027, 1031-1032 (1994):

       Federal Rule of Civil Procedure              51 is even more
       restrictive than Criminal Rule 52(b);       indeed, one circuit
       holds that it allows no new attacks         on instructions on
       appeal. We thus agree with the Sixth        Circuit that “[t]he


The court instructed the jury that the plaintiff had the burden of proving this
and other elements of her case. Second, the defendant asserted an affirmative
defense that plaintiff was removed from driving the van because her employment
in this capacity posed a “direct threat” to the health or safety of others. The
court charged that the defendant had the burden of proving this affirmative
defense.
   The defendant’s only objection at trial that related to the defendant’s
“direct threat” defense was to the court’s failure to require the jury to answer
a separate interrogatory on this defense. The defendant was concerned that
without a separate jury issue on the defendant’s affirmative defense, the jury
would become confused and require the defendant to prove an element of the
plaintiff’s case--that Rizzo was a “qualified individual with a disability.”
Defendant makes a very different argument on appeal. Instead of arguing that the
court should have given the jury a separate interrogatory on the defendant’s
affirmative defense, it argues that the court erred in assigning the burden of
proof to it to establish this affirmative defense. The defendant’s objection did
not complain of the court’s burden of proof instruction and this issue was not
preserved for appeal.
   2
    See EEOC v. AIC Security Investigations, Ltd., 55 F.3d 1276, 1283-85 (7th
Cir. 1995); Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247-48 (9th Cir.
1999); Hartog v. Wasatch Academy, 129 F.3d 1076, 1088-1089 (10th Cir. 1997); see
also 29 C.F.R. § 1630.15(b)(2).
   3
     Moses v. American Nonwovens, Inc. 97 F.3d 446, 447 (11th Cir. 1996); EEOC v.
Amego, Inc., 110 F.3d 135, 142-44 (1st Cir. 1997).

                                       5
       principles and decision enunciated in Olano apply a
       fortiori in the civil context where courts pay less
       strict attention to procedural protocol.” Olano augments
       this court’s longstanding rule that reversal for plain
       error is “not a run-of-the-mill remedy” and will occur
       “only in exceptional circumstances to avoid a miscarriage
       of justice.”

       In   allocating   the   burden       of   proof   to   the   defendant   to

establish its defense, the district judge carefully followed the

marching orders we gave him in Rizzo I.              In this circumstance we

are therefore unable to say the district court committed error at

all.    But, if we assume that the district court somehow committed

error, it certainly was not plain or “obvious” error and we need

not resolve the burden of proof issue raised for the first time on

appeal.4

       Turning to the sufficiency question, our review of the record

persuades us that the evidence amply supports the jury’s finding

that Rizzo was able to drive the van safely and did not pose a

direct threat to her passengers.             Ms. Rizzo produced evidence of

her safe driving history and unblemished history of supervising the

children without incident.        Rizzo also produced evidence that CWLC

evaluated her skills and gave her a driving score in excess of the

minimum needed to be able to drive the van.              She was experienced in

   4
     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.
See also EEOC v. Amego, 110 F.3d 135, 144 (1st Cir. 1997). 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.

                                        6
life saving procedures and possessed all licenses required by the

State of Texas.

      Rizzo’s own testimony supported the conclusion that she had no

difficulty supervising children on the bus.              She testified about

how she used the van’s internal mirrors and how she kept order on

the bus.   The evidence was clearly sufficient to support this jury

finding.

                                     B.

      CWLC argues next that Ms. Rizzo failed to communicate with it

to provide sufficient information about her disability to allow the

employer to evaluate whether she could perform the job safely.

      The district court--as part of its charge on reasonable

accommodation--explained      the   obligations     of    the   employer   and

employee to communicate with each other about the employee’s

disability and how that disability relates to job performance.5

  5
   The court charged as follows:

  For example, the individual needing the accommodation may not know enough
  about the equipment used by the employer or the exact nature of the work
  site to suggest an appropriate accommodation. Likewise, the employer may
  not know enough about the individual’s disability or the limitations that
  disability would impose on the performance of the job to suggest an
  appropriate accommodation.

  Where the missing information is of the type that can only be provided by
  one of the parties, failure to provide the information may be the cause of
  the breakdown and the party withholding the information may be found to
  have obstructed the process. This determination must be made in light of
  the circumstances surrounding a given case. If the employer does not
  obstruct the process, but instead makes reasonable efforts both to
  communicate with the employee and provide accommodations based on the
  information it possesses, the employer has made a good faith effort of
  accommodation.

  An employer does not have the responsibility to go in search of
  information, such as medical advice, that is uniquely in the hands of the

                                      7
      In rendering a verdict for the plaintiff, the jury implicitly

found no inadequate responsiveness by Ms. Rizzo in providing

necessary information about her condition.                     No objection was made

to this charge so the question narrows to whether the evidence is

sufficient to support this implicit finding. Viewing the evidence

in a light favorable to the verdict, our review of the record

persuades us that the evidence is sufficient.

      It is undisputed that before the parent expressed concern that

Ms.   Rizzo   could    not   safely       drive    the    van    and    supervise        the

children,     CWLC    knew   a    number    of    important       facts:      Ms.    Rizzo

possessed a commercial driver’s license; she had taken and passed

all of the written and performance criteria established by CWLC

relating to van driving; and finally, no one had ever reported to

appellant that Ms. Rizzo had failed to safely drive the van and

supervise the children.           In fact, the parent who expressed concern

about   Ms.   Rizzo    did   not       observe    her    engaging       in   any    unsafe

practices.

      In response to the statement made by the concerned parent,

appellant’s    director,         Ms.   Ryan,     told    Ms.    Rizzo    that      she   was

concerned about whether Ms. Rizzo could hear a siren and whether

she could hear a child choking in the van.                 Ms. Ryan told Ms. Rizzo

that she could no longer drive the van until CWLC satisfied itself



  employee, particularly when the employee appears not to                    have   been
  particularly responsive to requests for further information.


                                           8
that she could do it safely.     Following this meeting, Ms. Ryan

indicated to Ms. Rizzo that CWLC would have an audiologist test Ms.

Rizzo at the school.     Despite inquiry by Ms. Rizzo, CWLC never

arranged for such a test.      Approximately three weeks later Ms.

Rizzo went to her own audiologist.     After testing her hearing, the

audiologist reported that Ms. Rizzo should have no difficulty

hearing a siren.   Ms. Rizzo delivered the audiologist’s report to

Ms. Ryan and told her to call the audiologist if she had any

questions.   When Ms. Rizzo asked Ms. Ryan whether CWLC planned to

have an audiologist test her at the school, Ms. Rizzo received no

definitive answer. Ms. Ryan finally told Ms. Rizzo that the matter

was in the hands of Ms. Ryan’s superior, Claudia Adame.      When it

became apparent to Ms. Rizzo that CWLC planned to take no further

steps to resolve the question of whether her hearing impairment

affected her ability to drive the van and supervise the children in

the van, she resigned.

     We are satisfied that the jury was entitled to conclude that

Ms. Rizzo adequately communicated with CWLC about her hearing

impairment and the effect of this impairment on her ability to

safely drive the school van.



                                III.

     For the above reasons, the judgment of the district court is




                                  9
affirmed.6




   6
    The dissent takes the position that Rizzo’s proof failed as a matter of law
to establish that Rizzo suffered an adverse employment action. We agree with the
panel opinion (Rizzo II) that a reasonable jury could have concluded that when
Rizzo was prohibited from driving the van, her hours were reduced by about 25%
causing a similar reduction in her pay. This is sufficient evidence to establish
an adverse employment action.

                                      10
JONES and SMITH, Circuit Judges, with whom WIENER, Circuit Judge,

joins, dissenting:



     The result in this case is facially absurd:   An employee whose

numerous duties as assistant teacher and administrative aid include

driving small children in the school van is asked temporarily not

to drive until she can show that her poor hearing does not endanger

her young passengers.   For this purportedly reprehensible deed,

done in the interest of child safety, the school must pay the im-

paired employee $100,000 plus attorney’s fees.

     Congress surely could not have intended such an outcome.

We respectfully dissent.



                                I.

     We agree with the majority to the extent that it resolves

thorny substantive legal issues arising under the ADA.     That is,

the en banc majority, like the panel dissent, correctly concludes

that the ADA requires employers and employees to engage in a good

faith, interactive process of information exchange with regard to

an employee’s disability and the availability of reasonable accom-

modations.   An employee who unreasonably fails to provide the em-

ployer with such information is thus precluded from pursuing an ADA

action against his employer.

     We disagree, however, with the majority’s ultimate decision to

affirm the judgment based on the verdict.   The majority does so not
only in the face of serious doubts about whether Rizzo provided

adequate information concerning the scope of her disability to

CWLC, but also despite a fatal flaw in her prima facie case.

       Specifically, Rizzo failed, as a matter of law, to prove that

CWLC took any adverse employment action because of her disability,

a necessary element of an action under the ADA.               The majority,

agreeing with the panel in Rizzo II,7 dispenses with this issue in

a single, perfunctory footnote. We would reverse and render on the

ground that Rizzo did not present sufficient evidence of an adverse

employment action to support the verdict.

       We additionally are troubled by the majority’s avoidance of

substantive discussion of Rizzo I,8 in which the panel assigned the

burden of proof to the employer to show that an employee cannot

safely perform an essential job function because of his disability

and thereby poses a direct threat to the health or safety of

others.    Rizzo I was incorrectly decided.         The majority, however,

altogether avoids this sticky questionSSadmittedly made more dif-

ficult by facially inconsistent provisions of the ADASSby asserting

that CWLC failed to raise the proper objection in district court.

As we will explain, that position is untenable, because CWLC did

adequately object.


   7
     See Rizzo v. Children’s World Learning Ctrs., Inc., 173 F.3d 254, 260 (5th
Cir. 1999) (“Rizzo II”).
   8
     See Rizzo v. Children’s World Learning Ctrs., Inc., 84 F.3d 758, 764 (5th
Cir. 1996) (“Rizzo I”).

                                      12
                                       II.

        The ADA does not prohibit all discrimination on the basis of

disability, but only discrimination that produces an adverse em-

ployment action.       The Act expressly prohibits employers from “dis-

criminat[ing] against a qualified individual with a disability be-

cause of the disability of such individual in regard to job appli-

cation procedures, the hiring, advancement, or discharge of employ-

ees, employee compensation, job training, and other terms, condi-

tions, and privileges of employment.”9          Therefore, “[t]o establish

a prima facie case under the ADA one must show:            (1) that he has a

disability; (2) that he was qualified for the job; and (3) that he

was subject to an adverse employment decision because of his

disability.”10

        Rizzo not only voluntarily resigned her position, but did so

over CWLC’s pleas for her to stay and inquiries as to what it might

do to keep her.11 Rizzo alleges, however, that before her voluntary

resignation, she was demoted; she presents two theories to es-

tablish her demotion.

        First, she maintains that she lost wages from having to work

a reduced, split schedule, and felt stigmatized by her new duties.12


  9
       42 U.S.C. § 12112(a) (emphasis added).

  10
       Ivy v. Jones, 192 F.3d 514, 516 (5th Cir. 1999) (emphasis added).
  11
       See Rizzo II, 173 F.3d at 265 (Wiener, J., dissenting).
  12
       See id. at 260-61; id. at 271 (Wiener, J., dissenting).

                                       13
These      actions   may    constitute      a    demotion,      but   an   employee

additionally       must    show     that   he   was   demoted    because    of   his

disability.13 Rizzo made no such showing. To the contrary, she ad-

mitted that her new duties “were duties shared by all CWLC em-

ployees to varying degrees” and that “others also worked split

shifts.”14

        The sole employment action for which there was evidence of

impermissible discriminatory motive was CWLC’s temporary suspension

of Rizzo’s driving duties.15           That temporary employment action was

taken, as CWLC readily concedes, as the direct result of parents’

complaints regarding Rizzo’s hearing disability in the context of

express concerns for child safety.               But suspensionSSor even per-

manent removalSSof driving duties alone does not constitute a demo-

tion, for that employment action, alone, did not cause a change in

pay or benefits.16         And although there need not be a “decrease in

   13
        See Ivy, 192 F.3d at 516.
   14
        Id. at 271 (Wiener, J., dissenting).    See also id. at 260.
   15
        See id. at 261; id. at 271 (Wiener, J., dissenting).
   16
      The majority incorrectly attributes a reduction in Rizzo’s hoursSSand thus,
her wagesSSto the suspension of her driving duties. In fact, Rizzo’s wages were
not reduced because of her hearing difficulties. When CWLC suspended her driving
duties, CWLC simply reassigned her to perform other tasks to make up for those
hours.    Indeed, Rizzo never lost her status as a full-time employee, but
continued to enjoy all the benefits of full-time employment.

   Rizzo responds by asserting that her work hours nevertheless diminished. The
dispositive issue, however, is not whether she worked less hours, but why. The
record shows that it was ordinary business fluctuations resulting from the
seasonal nature of daycare workSSand not her loss of driving dutiesSSthat caused
Rizzo to receive reduced hours.

   The weeks immediately following Rizzo’s suspension of driving duties happened

                                           14
pay, title, or grade” to constitute a demotion, an employee at

least must show that his reassignment of duties “proves objectively

worseSSsuch as being less prestigious or less interesting or pro-

viding less room for advancement.”17             “[A] 'bruised ego' is not

enough.”18

        A reasonable juror could not conclude that the elimination of

van-driving responsibilities from the duties assigned to an as-

sistant teacher and administrative aide constitutes a demotion.

There is nothing inherently prestigious or interesting or career-

advancing about driving a van full of children.19             Rizzo therefore

cannot make the necessary objective showing of discriminatory demo-

tion through her reduction in duties.


to coincide with CWLC’s lowest period of staffing need. Rizzo fails to rebut
CWLC’s explanation with sufficient evidence that her reduced work hours were
attributable to her loss of driving duties, rather than ordinary business fluc-
tuations. Beyond her own bare allegation, she cites only the testimony of Myra
Ryan, CWLC's director. But Ryan agreed merely with the fact that Rizzo’s hours
had decreased, and in fact expressly disagreed with counsel for Rizzo as to why
that had occurred.

   17
        Sharp v. City of Houston, 164 F.3d 923, 933 (5th Cir. 1999).

   18
      Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998) (quoting
Flaherty v. Gas Research Inst., 31 F.3d 451, 456 (7th Cir. 1994)).
   19
     Of course, our conclusion hereSSthat the removal of driving
duties does not alone constitute a constructive demotion under
SharpSSdoes not affect our view expressed in part III hereof that,
for purposes of assigning burden of proof, driving is an essential
function of Rizzo's job. The former determination turns on such
factors as the level of pay, prestige and challenge of work, and
opportunity for career advancement. The latter, by contrast, is
simply an employer’s good-faith determination of what job functions
are essential to a particular position. Thus, a function could be
essential to the employer while not commanding extra pay and being
devoid of prestige, challenge, or other objective value, the loss
of which could constitute a constructive demotion.

                                        15
      Because neither temporary suspension nor even permanent re-

moval of driving duties alone qualifies as a demotion, and because

she did not show any other disability-motivated adverse employment

action, Rizzo failed to present a prima facie case of liability un-

der the ADA.   This court should therefore reverse and render judg-

ment as a matter of law in favor of CWLC.



                                 III.

      Not only, however, does the majority look past the absence of

an   adverse   employment   action,    but   it   also   circumvents   the

significantly more challenging burden-of-proof issue by concluding

that CWLC failed to object as required under FED. R. CIV. P. 51.

The majority errs in saying that CWLC did not object and in

refusing to address the validity of Rizzo I on that ground.

      More importantly, as we have said, Rizzo I was incorrectly de-

cided.   Under the proper rule, the employee, not the employer, has

the burden to prove that he can perform essential job functions

safely notwithstanding his disability and does not thereby pose a

direct threat to the health or safety of others in the workplace.

      Unfortunately, we cannot rely on the text of the ADA to tell

us how to assign the burden of proof, because different provisions

conflict, and analogies to other federal employment discrimination

laws are of limited utility.     Nevertheless, under this circuit’s

pre-Rizzo I precedent, we have held that the rule crafted to ad-


                                  16
judicate claims under the Rehabilitation Act applies to ADA cases

as well.20     Most persuasive, however, is the fact that the rule

urged by the dissent in Rizzo II offers the most practical solution

to this vexing problem.



                                       A.

        To sustain an action under the ADA, an employee first must

prove, as part of his prima facie case, that he is a “qualified

individual with a disability.”          42 U.S.C. § 12112(a).         In other

words, he has the burden to prove that he is “an individual with a

disability who, with or without reasonable accommodation, can

perform the essential functions of the employment position that

such individual holds or desires.”           § 12111(8).21     In the context

of the ADA, ability to perform an essential function means, inter

alia, doing so without constituting a direct threat.

        Plainly, then, when discharging his burden of establishing the

second element of a prima facie ADA caseSSqualification for the

jobSSthe plaintiff must show that, in performing each essential

function, he does not pose such a threat.               Where, as here, the



   20
     See Rizzo II, 173 F.3d at 272-73 (Wiener, J., dissenting) (citing Daugherty
v. City of El Paso, 56 F.3d 695, 697-98 (5th Cir. 1995)).
   21
     The ADA defers to an employer's determinations of the essential functions
of a job. See § 12111(8) (“For the purposes of this subchapter, consideration
shall be given to the employer’s judgment as to what functions of a job are es-
sential, and if an employer has prepared a written description before advertising
or interviewing applicants for the job, this description shall be considered
evidence of the essential functions of the job.”).

                                       17
function is (1) driving (2) a van (3) full of pre-school-age chil-

dren (4) on public streets in a high-traffic urban area, an em-

ployee with a disability that has an obvious nexus to performing

that job function in a safe manner must negate the threat.

     True, the ADA also provides employers with the affirmative

defense of showing a direct threat:

     It may be a defense to a charge of discrimination . . .
     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 in-
     dividual with a disability has been shown to be job-
     related and consistent with business necessity, and such
     performance cannot be accomplished by reasonable
     accommodation.

§ 12113(a).   “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.”

§ 12113(b).

     In other words, it is the employee’s burden to prove that he

is a qualified individual with a disability (which includes, in

some cases, negating direct threat), and it is the employer’s bur-

den to establish that an employee poses a direct threat to the

health or safety of other individuals in the workplace. These pro-

visions, however, leave a troubling gap, one that is exposed by the

facts of this case:    Whose burden is it if, according to the em-

ployer, an employee is not a qualified individual because, as a re-

sult of his disability, his unsafe performance of an essential job

function renders him a direct threat to others in the workplace?

                                    18
     On the one hand, imposing the burden on the employee requires

him to prove that he is not a direct threatSSa rule that appears to

conflict with § 12113(b), which assigns the burden, completely and

without exception, to the employer to prove direct threat, and not

to the employee to disprove such a threat.      On the other hand,

placing the burden on the employer requires it to show that the em-

ployee cannot perform an essential job function safelySSa rule that

conflicts with provisions of the ADA that expressly assign the bur-

den to the employee to prove that, as a qualified individual, he

can perform all essential job functions.

     To place the burden on the employer is to holdSSabsurdly, in

our viewSSthat unsafe execution of job duties nevertheless con-

stitutes adequate performance.   This approach effectively rewrites

the ADA to require an employee merely to prove his ability to

“perform the essential functions of the employment position,”

§ 12111(8), without regard “to the health or safety of other indi-

viduals in the workplace,” § 12113(b).     As a matter of statutory

construction if nothing else, such a rule is untenable.



                                 B.

     Because the answer cannot be found in the statutory text, we

are licensed to look to other sources for guidance.     No obvious

solutions appear from simply looking to other federal employment

discrimination statutes.   Nevertheless, this court has held that


                                 19
the rule governing burden of proof under the Rehabilitation Act ap-

plies also to the ADA.       See Daugherty, 56 F.3d at 697-98.         Rizzo I

therefore is flawed as a matter of stare decisis, violating our

maxim that one panel cannot overrule another.



                                       1.

       In Rizzo I, 84 F.3d at 764, the panel held that “[a]n employee

who is a direct threat is not a qualified individual with a dis-

ability.     As with all affirmative defenses, the employer bears the

burden of proving that the employee is a direct threat.”             In other

words, the panel placed the burden to prove direct threat on the

employer, and did so irrespective of whether the danger involves an

essential job functionSSlabeling absence of direct threat as a

qualifier to be a handicapped employee covered by the ADA, yet im-

permissibly shifting to the employer the employee’s burden of

proving his qualification.

       This approach mirrors that taken with regard to the bona fide

occupational qualification defense provided in other federal em-

ployment discrimination statutes such as title VII and the ADEA.22

Under those provisions, the employer has the burden to justify the

otherwise unlawful discrimination shown by the employee by pleading




  22
       See 42 U.S.C. § 2000e-2(e) (title VII); 29 U.S.C. § 623(f) (ADEA).

                                       20
and proving a business necessity defense.23                     As this circuit has

noted with respect to title VII, placing the burden of proof on the

employer to defend discriminatory acts on the basis of business

necessity is consistent

        with the purpose of the ActSSproviding a foundation in
        law for the principle of nondiscrimination. [Otherwise,]
        the exception will swallow the rule. . . . [T]he princi-
        ple of nondiscrimination requires that we hold that in
        order to rely on the bona fide occupational qualification
        exception an employer has the burden of proving that he
        had reasonable cause to believe, that is, a factual basis
        for believing, that all or substantially all women would
        be unable to perform safely and efficiently the duties of
        the job involved.24

        The analogy is less than perfect, however.                    Unlike the ADA,

which     expressly     applies         only    to    “qualified     individual[s],”25

title VII and the ADEA broadly protect “any individual,”26 limiting

references to an employee’s ability to do the job to the provisions

governing the bona fide occupational qualification defense.

        This is not to say that a title VII or ADEA plaintiff is not

required,      as   part   of     his    prima       facie   case,   to   prove   he   is



   23
      See Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228, 232 (5th Cir.
1969) (title VII); EEOC v. Univ. of Tex. Health Science Ctr., 710 F.2d 1091, 1093
(5th Cir. 1983) (ADEA).
   24
        Weeks, 408 F.2d at 235.

   25
     See 42 U.S.C. § 12112(a) (prohibiting discrimination “against
a qualified individual with a disability because of the disability
of such individual”) (emphasis added).
   26
      See 29 U.S.C. § 623(a)(1) (prohibiting discrimination “against any
individual . . . because of such individual’s age”); 42 U.S.C. § 2000e-2(a)(1)
(prohibiting discrimination “against any individual . . . because of such
individual’s race, color, religion, sex, or national origin”).

                                               21
qualified.    After all, failure to make such a showing constitutes

failure to prove discrimination; an employer need merely present

inability as the real motive behind the adverse employment action.27

But the distinction does undermine the analogy between disability

discrimination, on the one hand, and age or sex discrimination on

the other.    It evinces Congressional understandingSSnot to say com-

mon senseSSthat an employee’s ability to do the job, and to do so

safely, is a matter of heightened concern when it comes to dis-

ability, and has a special meaning not present in the context of

age or sex.     Any reasonable legal regime that condemns employment

discrimination should therefore acknowledge and incorporate this

distinction.



                                       2.

      A closer analogy might be found in the Rehabilitation Act,

which prohibits recipients of federal funding from discriminating

against an “otherwise qualified individual with a disability . . .

by reason of her or his disability.”          29 U.S.C. § 794.      Under that

statute, “the burden lies with the plaintiff to show that he is

otherwise qualified,” and he is “otherwise qualified” only if he

“'can perform the essential functions of the position in question



   27
      See, e.g., Sreeram v. Louisiana State Univ. Med. Ctr.SSShreveport, 188 F.3d
314, 318 (5th Cir. 1999) (holding that plaintiff “failed to establish a prima
facie case of sex and/or national origin discrimination because she failed to
establish that she was qualified for the position in question at all relevant
times”).

                                       22
without     endangering   the   health     and   safety   of   [himself]    or

others.'”28

        Even here the analogy is imperfect.        Although the protected

classSSdisabled individualsSSis the same under both acts, the Re-

habilitation Act, unlike the ADA, offers no explicit exception to

liability for business necessity or workplace safety, whether as

part of the employee’s prima facie case or as an affirmative

defense. The Chandler court thus was forced to construct an excep-

tion, using the “otherwise qualified” language as its statutory

hook:

        Taken literally, “otherwise qualified” could be defined
        to include those persons who would be able to meet the
        particular requirements of a particular program “but for”
        the limitations imposed by their handicaps. The Supreme
        Court, however, expressly disapproved of such an
        interpretation because of the absurd results that would
        be produced.   “Under such a literal reading, a blind
        person possessing all the qualifications for driving a
        bus except sight could be said to be 'otherwise
        qualified' for the job of driving.       Clearly, such a
        result was not intended by Congress.” The Supreme Court
        instead defined an otherwise qualified person as “one who
        is able to meet all of a program’s requirements in spite
        of his handicap.”[29]

In light of the scheme of the Rehabilitation Act, which prohibits

discrimination against “otherwise qualified” individuals, without

discussion of defenses or justifications, it was only natural to



   28
      Chandler v. City of Dallas, 2 F.3d 1385, 1393-94 (5th Cir. 1993) (quoting
Chiari v. City of League City, 920 F.3d 311, 317 (5th Cir. 1991) (quoting 29
C.F.R. § 1613.702(f) (1990))).
   29
      2 F.3d at 1393 (quoting Southeastern Community College v. Davis, 442 U.S.
397, 406, 407 n.7 (1979)).

                                      23
place the burden on the plaintiff.

       Quite arguably, the ADA shows that Congress learned its lesson

from the Rehabilitation Act, for the ADA not only expressly men-

tions both business necessity and workplace safety, but also lists

them as affirmative defenses for employers.30 As we have discussed,

other, conflicting provisions of the ADA prevent us from ending the

analysis there.        Nevertheless, the very existence of these affirm-

ative    defense    provisions     should   give    some     pause    before    we

incorporate      the     Rehabilitation     Act    caselaw     into    our     ADA

jurisprudence.



                                       3.

       This court, however, already has confronted the strengths and

weaknesses of analogizing the ADA to the Rehabilitation Act.                   Per-

haps adopting the old adage not to let the perfect be the enemy of

the good, we applied the Rehabilitation Act framework for burden of

proof to the ADA, and did so before Rizzo I was decided.

       In Daugherty, 56 F.3d at 697, we stated that “[t]he elements

of a cause of action at issue in our case . . . are virtually the

same under the Rehabilitation Act and the ADA.”                 The Daugherty

court went on to incorporate explicitly the Chandler rule into the

ADA:

       In Chandler, we [stated that] . . . [a]n otherwise qual-


  30
       See 42 U.S.C. § 12113(a)-(b).

                                       24
       ified handicapped individual is defined as one who can
       perform the essential functions of the position in ques-
       tion without endangering the health and safety of the
       individual or others. . . . [T]his holding likewise com-
       pels us to hold that under the ADA Daugherty is not a
       qualified individual with a disability for the position
       of bus driver. This essential element of his claim is
       lacking.

       Daugherty thus teaches that an employee’s ability to perform

essential job functions safely is part of his prima facie case, un-

der the ADA no less than under the Rehabilitation Act.                 Therefore,

the Rizzo I panel erred in placing the burden of proof on the

employer.



                                           C.

       Because    the    text   of   the    ADA      is   unyielding   and   beyond

rehabilitation,         and   analogies         to   other   federal   employment

discrimination statutes are of little help, courts are left with no

choice but to construct a rule that makes the best sense, while

adhering as closely as possible to what we can discern Congress

would have wanted.        As we have seen, an obvious alternative to the

rule of Rizzo I is to place the burden on the employee, as we did

in Daugherty.31         That is the approach urged by the dissent in

Rizzo II32 and is the law in the First and Eleventh Circuits.33


  31
       See Daugherty, 56 F.3d at 697-98.
  32
       See 173 F.3d at 273 & n.64 (Wiener, J., dissenting).

  33
     See EEOC v. Amego, 110 F.3d 135, 144 (1st Cir. 1997) (stating
that “in a Title I ADA case, it is the plaintiff’s burden to show

                                           25
       This rule requires the employee to disprove that he is a di-

rect threat to others, though only within the context of an essen-

tial job function.       It would still leave it to the employer to

prove direct threat either where an employee is unable safely to

perform a non-essential job function, or where his disability only

renders him a threat to the workplace generally.34

       Take this case as an example.       Rizzo suffers from a hearing

disability that, according to CWLC, renders her unable to drive

children safelySSone of the essential functions of her job.               The

disability therefore directly implicates her ability to do that

job.   Under the rule advocated by the dissent in Rizzo II, she, as

the employee, has the burden to prove she can drive safely.

       There is much to be said on principle for this distinction

between the ability to perform a particular job function safely, on

the one hand, and being a general threat to the health or safety of


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.”); Moses v. Am. Nonwovens, Inc.,
97 F.3d 446, 447 (11th Cir. 1996) (holding that, where “[e]ach of
Moses’s assigned tasks presented grave risks to an employee with a
seizure disorder,” “[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”).
  34
      Rizzo must contend that driving a bus is an essential function of her
position. If it were not, CWLC could have made an offer “she couldn’t refuse”
to accommodate her by replacing that non-essential function with other duties.

                                     26
others in the workplace, on the other hand.               It recognizes that we

may have special cause for suspicion when an employer justifies

discrimination not on the relatively concrete and more readily mea-

surable basis of ability to perform a particular essential job

function safely, but because of a proffered generalized concern

about health and safety.         “Few aspects of a handicap give rise to

the      same   level     of   public    fear    and       misapprehension    as

contagiousness.       Even those who suffer or have recovered from such

noninfectious       diseases     as   epilepsy     or     cancer   have   faced

discrimination based on the irrational fear that they might be

contagious.”35

        We therefore may have reason to be particularly wary of an em-

ployer who asserts generalized rather than job-function-specific

justifications.       It is reasonable to allocate the burden of proof

accordingly and to assume that Congress had Arline in mind when it

enacted the ADA.36

        Admittedly, nothing in the text of the direct-threat provision

supports this distinction. But this approach does at least preserve

some role for § 12113(b), by requiring employers to prove direct



   35
        School Bd. v. Arline, 480 U.S. 273, 284 (1987).

   36
      See Jeffrey A. Van Detta, “Typhoid Mary” Meets the ADA: A Case Study of the
“Direct Threat” Standard Under the Americans with Disabilities Act, 22 HARV. J.L.
& PUB. POL’Y 849, 857-58, 860 (1999) (“The 'direct threat' standard had its
genesis in litigation involving employees with contagious diseases under the Re-
habilitation Act of 1973 [citing Arline]. . . . When Congress considered the
legislation that became the ADA, it used Arline as a starting point for grappling
with disqualification of employees due to safety risks.”).

                                        27
threat when the issue does not concern an employee’s ability to

perform an essential job function.

     In conclusion, the rule endorsed by the dissent in Rizzo II of-

fers a practical, balanced solution to the problem, one to which the

ADA unfortunately has left no answer.   By placing the burden on the

employee with regard to essential job functions and on the employer

for generalized, non-functional health concerns, it enforces the

Congressional mandate that unjustifiable discrimination on the basis

of disability is intolerable, while recognizing the reality that

disability raises legitimate questions of employee qualification

unique in employment discrimination law.

     By distinguishing between essential job functions on the one

hand and other, generalized health and safety concerns on the other,

this rule reflects the fact that our most intense suspicions of

untoward motivation are triggered when merely generalized concerns,

lacking a basis in a concrete, particular essential job function,

are put forth to justify discrimination on the basis of disability.

Having found the right answer in Daugherty, this court ought not to

have departed from it in Rizzo I.



                                IV.

     The majority says it need not address Rizzo I because CWLC

failed to file a proper objection.    We disagree.

     Counsel for CWLC did object. The original instructions direct-


                                28
ed the jury to place the burden on Rizzo to prove she was a quali-

fied individual with a disability, and the burden on CWLC to prove

Rizzo constituted a direct threat to others in the workplace.                 The

instructions further stated, however, that Rizzo would not be a

qualified individual with a disability should the jury find that she

posed a direct threat to othersSSas Rizzo I itself suggested.37

        Accordingly, CWLC was concernedSSand understandably soSSthat

the repeated reference to direct threat would confuse the jury and

mislead it to believe that CWLC not only had to prove direct threat,

but also had to disprove Rizzo’s qualifications in toto, including

absence of direct threat.        CWLC thus objected and requested a clar-

ification, which the court denied. Having failed to obtain an addi-

tional instruction clarifying that Rizzo, and not CWLC, had the

burden to prove that she was a qualified individual, CWLC must have

found it futile to seek further instruction that Rizzo, and not

CWLC, had the burden to prove ability to perform essential job

functions safely and in a non-threatening way.

        Moreover, CWLC’s sense of futility must have been particularly



   37
      See Rizzo I, 84 F.3d at 764 (“An employee who is a direct threat is not a
qualified individual with a disability. As with all affirmative defenses, the
employer bears the burden of proving that the employee is a direct threat.”).
This statement is itself contradictory: An employee has the burden of proving that
he is a “qualified individual,” which he cannot be if there exists a direct threat
in his performance of an essential function; therefore, at least at that stage,
proof of direct threat should not be the employer’s burden. Only if the employee
establishes a prima facie case that includes performing each essential function
safely (i.e., no direct threat in the physical performance per se) is the employer
put in the position of having to advance and prove any affirmative defense,
including generalized threats to health and safety from the employee’s presence in
the workplace.

                                        29
daunting in light of the express language of Rizzo I.38            To be sure,

as a general matter FED. R. CIV. P. 51 provides that “[n]o party may

assign as error the giving or the failure to give an instruction

unless that party objects thereto before the jury retires to con-

sider its verdict, stating distinctly the matter objected to and the

grounds of the objection.”        But the rule is not without exceptions.

“[F]ailure to object may be disregarded if the party’s position has

previously been made clear to the court and it is plain that a

further objection would have been unavailing.”39                 For example,

where, “[a]t the time of the trial, the prevailing Fifth Circuit

rule did not require submission of the requested charge . . .,

further objection by the appellants would have been fruitless.” Id.

Objection here would have been similarly fruitlessSSand thus simi-

larly excusedSSfor we had just recently sent the court direct in-

structions regarding burden of proof in Rizzo I.

       Given not only CWLC’s request for clarification on the proper

scope of each party’s burden, but also the binding language of

Rizzo I, the fundamental purpose of rule 51SSto apprise the court of

the legal issues in the caseSSwas amply served here.             CWLC’s argu-

ment therefore was preserved adequately for appeal.




   38
      See Rizzo I, 84 F.3d at 764 (“As with all affirmative defenses, the em-
ployer bears the burden of proving that the employee is a direct threat.”).

  39
       Lang v. Texas & Pac. Ry., 624 F.2d 1275, 1279 (5th Cir. 1980).

                                       30
                                V.

     In summary, the ADA is not a paragon of legislative drafting.

Particularly impenetrable is the statutory allocation of burden of

proof regarding an employee's qualifications and the threat that

disabled employees might pose to health and safety.    The most real-

istic and principled resolution of this dispute would have been to

reverse and render judgment for CWLC for want of an adverse employ-

ment action and to take any appropriate opportunity to address the

facially conflicting provisions of the ADA on burden of proof of

direct threat.   Therefore, we respectfully dissent.




                                31
