Table of Contents

Table of Authorities......................................................................................................... ii

Rule 35(b) Statement....................................................................................................... 1

Statement of Facts............................................................................................................ 3

The Direct Threat Instruction......................................................................................... 5

Panel Decision.................................................................................................................. 6

Argument........................................................................................................................... 7

Conclusion...................................................................................................................... 15

Addendum

Attachment: Panel Decision

Certificate of Digital Submission

Certificate of Service

Table of Authorities

Cases Page(s)

Bragdon v. Abbott,

524 U.S. 624 (1998)............................................................................................. 13

Branham v. Snow,

392 F.3d 896 (7th Cir. 2004).......................................................................... 2, 13

Echazabal v. Chevron USA, Inc.,

336 F.3d 1023 (9th Cir. 2003)........................................................................ 2, 13

Grace United Methodist Church v. City of Cheyenne,

451 F.3d 643 (10th Cir. 2006)............................................................................ 10

Jarvis v. Potter,

500 F.3d 1113 (10th Cir. 2007)...................................................... 1, 8, 9, 12, 13

Lederman v. Frontier Fire Prot., Inc.,

685 F.3d 1151 (10th Cir. 2012)............................................................................ 1

McKenzie v. Benton,

388 F.3d 1342 (10th Cir. 2004)............................................................... 2, 11, 12

Verzeni v. Potter,

109 F. App’x 485 (3d Cir. 2004)................................................................... 2, 13

Webb v. ABF Freight Sys., Inc.,

155 F.3d 1230 (10th Cir. 1998)............................................................................ 1

Statutes and Regulations

42 U.S.C. § 12101 et seq.................................................................................................. 2

42 U.S.C. § 12113............................................................................................................. 7

42 U.S.C. § 12113(b)................................................................................................... 7, 8

29 C.F.R. § 1630.2(r)......................................................................................... 2, 8, 9, 13

Other Authority

Fed. Civ. Jury Instr. 7th Cir. 4.10 (2010)................................................................ 3, 14

Model Civ. Jury Instr. 3d Cir. 9.3.1 (2011)............................................................ 3, 14

Model Civ. Jury Instr. 9th Cir. 12.12 (2007)......................................................... 3, 14

Rule 35(b) Statement

In this appeal, the panel concluded that reversal of the jury’s verdict was warranted. Relying on this Court’s decision in Jarvis v. Potter, 500 F.3d 1113, 1122-23 (10th Cir. 2007), the panel held that the district court was required to state at the very outset of its “direct threat” instruction that Beverage Distributors Co. (“BDC”) “could avoid liability by showing that it reasonably determined” that its employee posed a direct threat. The panel concluded that beginning by instructing the jury that BDC had to “prove” that the employee posed a direct threat tainted the entire instruction. Slip op. at 3-5.

The panel held, in essence, that a court commits reversible error when, in what the panel denoted the “first part” of the direct threat jury instruction, it gives an instruction that tracks the relevant statutory and regulatory language and then, in the “second part,” provides the jury with the applicable standards developed in the case law for making a direct threat determination. That conclusion is inconsistent with this Court’s recognition that what is critical in assessing jury instructions is whether “‘the charge as a whole adequately states the law,’” Lederman v. Frontier Fire Prot., Inc., 685 F.3d 1151, 1155 (10th Cir. 2012) (citation omitted), and “‘[n]o particular form of words is essential if the instruction as a whole conveys the correct statement of the applicable law,’” Webb v. ABF Freight Sys., Inc., 155 F.3d 1230, 1248 (10th Cir. 1998) (citation omitted).

The panel ruling also conflicts with the precedent of this Court interpreting the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Equal Employment Opportunity Commission’s (“Commission”) ADA regulations, 29 C.F.R.

§ 1630.2(r). Not only is the panel’s ruling not compelled by Jarvis, it conflicts with McKenzie v. Benton, 388 F.3d 1342 (10th Cir. 2004), a direct threat case in which this Court did not focus on “objective reasonableness” as the central issue. Instead, this Court repeatedly observed that the jury found that the plaintiff “posed a direct threat,” not that the employer had reasonably reached that conclusion; this Court referred to the burden of proof as requiring proof that the plaintiff was a direct threat; and the direct threat instruction cited by this Court did not ask the jury to assess the objective reasonableness of the employer’s direct threat determination. 388 F.3d at 1345, 1347, 1352 & n.3, 1356. By contrast, the panel deemed the instruction here to be flawed because, although it used the term “objectively reasonabl[e]” two times, it was insufficiently explanatory at the outset.

The panel’s conclusion is also in conflict with three other courts of appeals that acknowledge the fact-finder’s role as determining the objective reasonableness of the employer’s direct threat determination, yet have model jury instructions that do not require stating at the outset that the jury must assess the objective reasonableness of the employer’s direct threat determination. See Branham v. Snow, 392 F.3d 896, 906 (7th Cir. 2004); Verzeni v. Potter, 109 F. App’x 485, 491-92 (3d Cir. 2004) (unpubl.); Echazabal v. Chevron USA, Inc., 336 F.3d 1023, 1033 (9th Cir. 2003); see also Model Civ. Jury Instr. 3d Cir. 9.3.1 (2011) (attached at Addendum-1); Fed. Civ. Jury Instr. 7th Cir. 4.10 (2010) (attached at Addendum-3); Model Civ. Jury Instr. 9th Cir. 12.12 (2007) (attached at Addendum-4). And as with the instruction in McKenzie, these other courts’ direct threat model jury instructions closely track the instruction given here. To our knowledge, no other court of appeals has adopted the approach to a direct threat jury instruction taken by the panel in this case. Accordingly, the panel decision conflicts with the decisions of this Court and is in tension with the treatment of the issue in other courts of appeals, and panel rehearing or consideration by the full Court is therefore necessary to secure and maintain uniformity of this Court’s decisions.

Statement of Facts

In this ADA enforcement action, the Commission brought suit alleging that BDC refused to hire charging party Mike Sungaila because of his disability. As a child, Sungaila was diagnosed with achromatopsia, a non-progressive eye disease. Defendant/Appellant’s Appendix (“App.”) 636. As a result of this condition, Sungaila is unable to see detail “too well” from a distance. App.636. Sungaila can see better indoors than outdoors in sunlight, and has no problems with his peripheral vision. App.637.

BDC is a wholesale liquor distribution company. App.784-85. Sungaila began working for BDC in 2000, first as a “Lumper” preparing product for delivery, and then, starting in 2003, as a Driver’s Helper. App.649-50, 657, 626. Sungaila was a safe, effective employee who was never injured on the job, did not have any safety incidents, and received safety awards and bonuses. App.403, 675; Supp.App.16-18. In March 2008, BDC eliminated the Driver’s Helper position. App.596. Bob Pieron (BDC’s Director of Safety and Security), John Johnson (Vice President of Operations), Tom Rogers (Delivery Manager), and Curt Eby (Night Shift Manager) all encouraged Sungaila to apply for a Night Warehouse Associate position. App.398, 412, 446, 461, 580, 594, 676. Sungaila was sure he could do the job despite his disability, as he had previously done many of the same tasks in the warehouse while working as a Driver’s Helper and Lumper. App.677. BDC required only a short interview before making Sungaila a conditional job offer. App.678-79. While Sungaila was exempted from the standard pre-employment physical agility test, Sungaila was required to undergo a pre-employment medical examination. App.414, 418; Supp.App.28-29.

Dr. Sanidas performed Sungaila’s medical examination. App.419, 499, 518. Dr. Sanidas testified that when he asked Sungaila whether he has any disabilities, Sungaila responded simply that he was “legally blind.” App.530. Dr. Sanidas did not ask Sungaila any follow-up questions about his vision, did not examine Sungaila’s visual acuity—he simply “took [Sungaila] at his word”—and did not fail Sungaila on his exam. App.530-31, 544. Instead, “the only recommendation [Dr. Sanidas had] is that [Sungaila] should have work accommodations.” App.544. Dr. Sanidas checked a box on the medical evaluation report indicating that “a medical condition exists which may be a direct threat to self or others unless reasonable accommodations are available.” App.544. (emphasis added). Dr. Sanidas also noted that Sungaila was “legally blind. Should not climb ladders. Cannot drive. Not to drive pallet jack, forklift, and avoid being in the way of these or hit by them.” App.545.

After receiving Dr. Sanidas’ report, Pieron, Johnson, and HR Director Linda Hollman decided to withdraw their offer of employment to Sungaila, based entirely on Dr. Sanidas’ report. App.419-20. They made this decision even though none of the decisionmakers knew what “legally blind” meant, and without attempting to contact Dr. Sanidas to discuss his recommendation. App.848. BDC also did not present Sungaila with the opportunity to provide a vision report from his own doctor—an opportunity the company had provided to other employees or applicants after undergoing a pre-employment medical examination. App.407, 449, 451, 842-43, 903. Pieron and Rogers met briefly with Sungaila to tell him that they were revoking their job offer. App.597. They told Sungaila that he was a “liability,” but did not ask questions about his vision or discuss potential accommodations. App.436, 657, 685.

The Direct Threat Instruction

The district court’s direct threat jury instruction read as follows:

If you find that the EEOC has proved [that BDC failed to hire Sungaila because of his disability], then you must determine whether Beverage Distributors has proved its affirmative defense that Mr. Sungaila’s employment in a Night Warehouse position posed a direct threat to himself or other employees.

To establish this defense, Beverage Distributors must prove both of the following by a preponderance of the evidence:

1. Mr. Sungaila’s employment in a Night Warehouse position posed a significant risk of substantial harm to the health or safety of Mr. Sungaila and/or other employees; and

2. Such a risk could not have been eliminated or reduced by reasonable accommodation.

A direct threat means a significant risk of substantial harm to the health or safety of the person or other persons that cannot be eliminated or reduced by reasonable accommodation. The determination that a direct threat exists must have been based on a specific personal assessment of Mr. Sungaila’s ability to safely perform the essential functions of the job. This assessment of Mr. Sungaila’s ability must have been based on either a reasonable medical judgment that relied on medical knowledge available at the time of the assessment, or on the best objective evidence available at the time of the assessment. For evidence to be “available” it must have been in existence at the time of the assessment. An employer’s subjective belief that a direct threat exists, even if maintained in good faith, is not sufficient unless it is objectively reasonable.

. . .

In determining whether Beverage Distributors acted objectively reasonably when it determined that Mr. Sungaila was a direct threat, you must consider the following factors: (a) the duration of the risk; (b) the nature and severity of the potential harm; (c) the likelihood that the potential harm would occur; and (d) the imminence of the potential harm.

App.78.

Panel Decision

The panel concluded that the district court’s direct threat instruction constituted reversible error because it “did not accurately convey the direct-threat standard.” Slip op. at 5. The panel stated that “[a]ccording to the first part of the instruction, [BDC] had to prove that Mr. Sungaila posed a direct threat” but “[t]his was not accurate under our case law.” Id. at 6. Instead, the panel stated, BDC “should have avoided liability if it had reasonably believed the job would entail a direct threat; proof of an actual threat should have been unnecessary” and the instruction “overstated [BDC’s] burden.” Id. at 6-7. The panel added that the “second part of the instruction did not cure the error” because, while “stat[ing] that the jury was to consider the reasonableness of [BDC’s] belief regarding the existence of a direct threat” “the jury was never told why it was to consider the reasonableness of what [BDC] thought.” Id. at 7. The panel further stated that “[e]ven if the instruction had directed the jury to consider [BDC’s] determination, that determination was about the ‘existence’ of a direct threat, not the objective reasonableness of the determination.” Id. at 7 n.2. The panel ultimately determined that reversal was necessary because the jury might have relied upon the given direct threat instruction. Id. at 8.

Argument

While the panel determined that the district court’s direct threat instruction “did not accurately convey the direct-threat standard,” slip op. at 5, this is incorrect. The instruction tracked the legal standard for the direct threat defense, and so did not constitute reversible error. Because of the inter- and intra-circuit confusion caused by the panel’s contrary conclusion, panel rehearing or rehearing en banc is required to clarify the proper legal standard for establishing the direct threat defense.

As an affirmative defense to a claim of disability discrimination, the ADA provides that employers may require “that an individual shall not pose a direct threat to the health or safety of other workers in the workplace.” 42 U.S.C. § 12113(b). The ADA defines “direct threat” as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” 42 U.S.C. § 12111(3). No statutory language indicates that proof of direct threat is connected to the employer’s reasonable belief.

The direct threat instruction in the instant case was substantively identical to both this statutory language, and to language in the Commission’s ADA regulations and this Court’s precedent, explaining the direct threat defense. The instruction first directed the jury to “determine whether Beverage Distributors has proved its affirmative defense that Mr. Sungaila’s employment in a Night Warehouse position posed a direct threat to himself or other employees.” App.78. See 42 U.S.C. § 12113(b) (providing that employers may require “that an individual shall not pose a direct threat to the health or safety of other workers in the workplace”). The instruction next stated:

To establish this defense, Beverage Distributors must prove both of the following by a preponderance of the evidence:

1. Mr. Sungaila’s employment in a Night Warehouse position posed a significant risk of substantial harm to the health or safety of Mr. Sungaila and/or other employees; and

2. Such a risk could not have been eliminated or reduced by reasonable accommodation.

App.78. See 29 C.F.R. § 1630.2(r) (ADA regulations defining “direct threat” 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”); Jarvis, 500 F.3d at 1121 (same). The instruction then repeated this definition of direct threat, and continued:

App.78. See 29 C.F.R. § 1630.2(r) (“The determination that an individual poses a ‘direct threat’ shall be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.”); Jarvis, 500 F.3d at 1122 (same). Later, the instruction stated:

App.78. See 29 C.F.R. § 1630.2(r) (“[I]n determining whether an individual would pose a direct threat, the factors to be considered include: (1) The duration of the risk; (2) The nature and severity of the potential harm; (3) The likelihood that the potential harm will occur; and (4) The imminence of the potential harm.”); Jarvis, 500 F.3d at 1122 (same).

The instruction thus was substantially identical to the statutory and regulatory language that this Court recognizes as describing the requirements of the direct threat defense. In addition, the instruction twice referred to assessing the objective reasonableness of BDC’s direct threat determination:

An employer’s subjective belief that a direct threat exists, even if maintained in good faith, is not sufficient unless it is objectively reasonable.

. . .

In determining whether Beverage Distributors acted objectively reasonably when it determined that Mr. Sungaila was a direct threat, you must consider the following factors . . . .

App.78. Accordingly, reading the charge as a whole reveals that the district court’s direct threat instruction correctly stated the standard of proof BDC was required to meet in order to establish its direct threat defense, and so provided the jury with an ample understanding of the applicable principles of law and factual issues confronting them. See Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 660 (10th Cir. 2006) (“We review de novo whether, as a whole, the district court’s jury instructions correctly stated the governing law and provided the jury with an ample understanding of the issues and applicable standards.”).

To parse out the instructions into two parts walled off from each other, as the panel did here, is at odds with Grace United. The panel’s focus on the reasonableness of the employer’s determination, as opposed to the evidentiary support for its determination, would make sense if, for example, the employer had mistakenly but reasonably relied on false information or an outdated medical analysis. But that is not this case. The jury’s application of the direct threat factors to the evidence BDC submitted is necessarily the same as its assessment of the reasonableness of BDC’s conclusion about whether Sungaila posed a direct threat. Thus, the panel’s belief that it was error not to focus the jury’s attention initially on the reasonableness of BDC’s belief cannot be squared with BDC’s theory of the case or the evidence it presented.

Furthermore, the panel’s conclusion conflicts with the standard for direct threat jury instructions recognized previously by this Court, and with other circuits’ treatment of direct threat jury instructions. Until now, no court of appeals—including this Court—has required that a jury instruction on the direct threat defense state explicitly at the outset that the jury is to assess the “objective reasonableness” of the employer’s direct threat determination. To the contrary, this Court implicitly has approved of direct threat jury instructions that do not mention the objective reasonableness of the employer at all, but instead simply lay out the proper factors to consider. In McKenzie, an ADA failure-to-hire case, the employer asserted the direct threat defense at a jury trial. 388 F.3d at 1345. This Court described certain trial testimony as relevant to “the jury’s examination of whether [plaintiff] was a direct threat to herself and others,” not whether the employer’s determination of such was reasonable. Id. This Court quoted the instruction, which listed the relevant factors and noted, as did the instructions here, that “‘the determination . . . may be based on valued medical analyses and/or on other objective evidence.’” Id. at 1352 n.3.

This Court then held that “the district court did not err by instructing the jury that the burden rested on the plaintiff to prove that she did not pose a ‘direct threat’ to others in the workplace.” Id. at 1356 (emphasis added). While this holding is focused primarily on the question of which party bears the burden of proof, [1] it also indicates that explaining the “objective” evidence on which a direct threat determination may be based adequately instructs the jury. As such, McKenzie is at odds with the panel holding in the instant case.

Nor did Jarvis—the jurisprudential basis for the instant panel decision—suggest that the instruction in McKenzie was erroneous. In Jarvis, this Court mentioned McKenzie in its direct threat analysis, but did not address the jury instruction in McKenzie or otherwise discuss how a jury should be instructed on the direct threat defense.[2] Jarvis, 500 F.3d at 1121-23. This Court stated that “[t]he fact-finder’s role is to determine whether the employer’s decision was objectively reasonable,” but it did not require, contrary to the panel’s interpretation of Jarvis, that to make such an assessment the jury must be instructed at the outset to assess not only whether the employer’s determination was properly based on the requisite criteria, but also, separately, whether the employer’s determination was “reasonable.” Id. at 1122-23.

The panel decision is also inconsistent with how other circuits have treated this question. Three other courts of appeals have recognized, as has this Court, that an employer’s direct threat determination must be objectively reasonable—but this assessment is linked to whether the employer considered the proper criteria. See Jarvis, 500 F.3d at 1122-23 (recognizing that “the fact-finder’s role is to determine whether the employer’s decision was objectively reasonable,” and citing the direct threat criteria described at 29 C.F.R. § 1630.2(r)); Branham, 392 F.3d at 906 (“The assessment of risk ‘must be based on medical or other objective evidence’ and the determination that a significant risk exists must be objectively reasonable.”) (quoting in part Bragdon v. Abbott, 524 U.S. 624, 649-50 (1998)); Echazabal, 336 F.3d at 1033 (stating that courts must assess “whether the opinion that a direct threat existed was objectively reasonable” and adding in a parenthetical that “analysis of direct threat ‘requires the employer to gather “substantial information” about the employee’s work history and medical status, and disallows reliance on subjective evaluations by the employer’”) (citation omitted) (emphasis in original); Verzeni, 109 F. App’x at 491-92 (“Any jury considering this defense should be instructed not to base its determination on unfounded fears, but only on medically accurate facts. . . . [T]he jury should ‘assess the objective reasonableness of the views of health care professionals without deferring to their individual judgments.’ Not providing these warnings to the jury takes the risk that the jury’s determination will be based on the same ‘archaic attitudes’ Congress was trying to prevent.”) (citation omitted). As in these cases, here too the district court’s jury charge directed the jury to evaluate BDC’s determination of Sungaila’s safety threat in light of the relevant factors.

Consistent with this precedent, the Third and Ninth Circuits’ pattern jury instructions provide the same type of instruction that the district court provided here—both start by stating that the employer “must prove” the individual posed a direct threat. Compare App.78 with Model Civ. Jury Instr. 3d Cir. 9.3.1 (2011) (attached at Addendum-1) (“Your verdict must be for [defendant] if [defendant] has proved both of the following by a preponderance of the evidence: First: [Defendant] [specify actions taken with respect to plaintiff] because [plaintiff] posed a direct threat to the health or safety of [plaintiff][others in the workplace]; and Second: This direct threat could not be eliminated by providing a reasonable accommodation.”), and Model Civ. Jury Instr. 9th Cir. 12.12 (2007) (attached at Addendum-4) (“The defendant claiming the direct threat defense must prove by a preponderance of the evidence that plaintiff posed a direct threat to the health or safety of [[others][himself][herself]] that could not be eliminated by a reasonable accommodation.”).[3] Again, like the instruction here, the model instructions list the relevant factors to consider. Id.

The Seventh Circuit’s direct threat pattern jury instruction reads slightly differently, but instructs the jury to consider the defendant’s assessment of direct threat in the same way the district court here instructed the jury. See Fed. Civ. Jury Instr. 7th Cir. 4.10 (2010) (attached at Addendum-3) (“In this case, Defendant says that it [did not accommodate/did not hire/fired] Plaintiff because [accommodating/hiring/retaining] him would have created a significant risk of substantial harm to [plaintiff and/or others in the workplace]. [Defendant must have based this decision on a reasonable medical judgment that relied on [the most current medical knowledge][the best available objective evidence] about whether Plaintiff could safely perform the essential functions of the job at the time.] If Defendant proves this to you by a preponderance of the evidence, you must find for Defendant. . . . [Defendant must prove that there was no reasonable accommodation that it could make which would eliminate the risk or reduce it so that it was no longer a significant risk of substantial harm.]”).

Despite holding a similar understanding of the direct threat defense, no other court of appeals has required that a direct threat jury instruction explicitly direct the jury to assess the objective reasonableness of the employer’s determination at the outset, and the panel’s ruling creates a conflict with the direct threat jury instructions approved in those other jurisdictions.

Conclusion

For the foregoing reasons, the Commission respectfully requests that the Court

grant this petition for panel rehearing and/or rehearing en banc.

Respectfully submitted,

P. DAVID LOPEZ U.S. EQUAL EMPLOYMENT

General Counsel OPPORTUNITY COMMISSION

131 M St. NE, Rm. 5NW10P

CAROLYN L. WHEELER Washington, D.C. 20507

Acting Associate General Counsel (202) 663-4870

James.Tucker@EEOC.gov

JENNIFER S. GOLDSTEIN

Acting Assistant General Counsel

s/ James M. Tucker

JAMES M. TUCKER

Attorney

[1] In McKenzie, this Court concluded that the plaintiff bore the burden of proof on the direct threat question because the parties agreed the occupation at issue was “inherently dangerous.” 388 F.3d at 1355-56. While BDC bore the burden of proof on its direct threat defense here, the relevant considerations are the same whichever party bears the burden of proof.

[2] Similarly, the panel cited McKenzie but only for the proposition that direct threat is an affirmative defense. Slip op. at 4.

[3] The brackets and emphases used in all these model jury instructions were provided by the drafters of the instructions.