Branham, Gary L. v. Snow, John W.

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