* The Honorable Henry A. Politz, Circuit Judge for the United States Court

of Appeals for the Fifth Circuit, sitting by design ation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 13 2001 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LORRAINE “JADE” MCKENZIE, Plaintiff - Appellant, v. DAVID DOVALA, in his official capacity as Sheriff of Natrona County, Defendant - Appellee. No. 99-8084

Appeal from the United States District Court

for the District of Wyoming (D.C. No. 98-CV-289-D)

Bernard Q. Phelan, Cheyenne, Wyoming, for the Plain tiff-Appellant. Peter J. Young (Judith A.W. Studer with him on the brief), Schwartz, Bon, Walker & Studer, Casper, Wyoming, for the Defendant -Appellee.

Before BALDOCK , POLITZ * and LUCERO , Circuit Judges.

LUCERO , Circuit Judge.1 Around the time of her resignation, McKenzie was diagnosed with posttraumatic stress disorder, adjustment disorder, bor derline personality disorder, and major depressive disorder, single episode, severe. - 2 - Plaintiff Lorraine “Jade” McKenzie sued her former employer, the Natrona County Sheriff’s Office, for an alleged violation o f the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 1210 1–12213. The United States District Court for the District of Wyoming g ranted summary judgment in favor of defendant, and plaintiff appealed. Exerci sing jurisdiction under 28 U.S.C. § 1291, we conclude McKenzie made out a prim a facie case of discrimination under the ADA and therefore reverse.
I McKenzie worked as a deputy sheriff with the Natron a County Sheriff’s Office in Casper, Wyoming for ten years. In her de cade of service, she reached the rank of sergeant within the organization, perfo rming the duties of shift supervisor, and never had a negative performance ev aluation. Beginning in early 1996, McKenzie suffered from a variety of psycholog ical afflictions, including post-traumatic stress disorder related to childhood sexual abuse by her father. 1 As her condition worsened, she began to miss work f requently. Then, on August 15, 1996, McKenzie fired six rounds from her revolv er into the ground at her father’s grave; the next day, Sheriff David Dovala placed her on administrative leave. In the weeks that followed McKenzie suffere d serious self-inflicted- 3 -

wounds and drug overdoses requiring several hospita l visits. After being told that her leave pay was exhausted, McKenzie resigned voluntarily in October 1996 to seek psychological care. In late November of the same year, after a course o f medication and therapy, McKenzie was released by her supervising p hysician, Dr. Arlene Viray. After Dr. Viray sent the Sheriff a letter stating M cKenzie’s condition had improved sufficiently that she could return to work , McKenzie immediately sought re-employment at the Sheriff’s Office and wa s assured that her application would be considered if openings became available. Despite her ten years of experience and her fine record as a patrol officer, McKenzie’s application for employment was rejected at all the agencies to whic h she applied throughout Wyoming and Nevada. Unable to find work in law enf orcement anywhere in the area, she returned to the Sheriff’s Office in Octob er 1997 and asked to be considered not only for a position as a patrol offi cer, but also for any job in the department. Dovala told McKenzie that he was unwil ling to consider her application and admitted that the Office was reluct ant to hire her because of “liability” concerns and fear of public uneasiness related to her past illness. (Appellant’s App. at 187.) According to Dovala, me mbers of his staff had told him that “based upon what they knew about what had happened in the previous year,” McKenzie “would be better off in some other field.” (Id. at 97.)2 Since the initiation of this suit, Benton has rep laced Dovala as Sheriff of

Natrona County.

3 Although McKenzie was not decertified by the Boar d upon Benton’s request, her certification lapsed in October 1998, two years after her resignation.

4 Plaintiff also brought a claim of retaliation in violation of Title VII, alleging she was denied a position because of her c omplaints of gender discrimination while still employed by the defendan t. The district court granted summary judgment for the defendant, and that claim is not before us on appeal. - 4 - Dovala admitted to McKenzie that he had passed overher application when positions became available in the department betwee n November 1996 and October 1997. He acknowledged that he eliminated M cKenzie from consideration without ordering a standard psycholog ical evaluation as provided for in Wyoming’s Peace Officer Standards and Traini ng (“POST”) law, Wyo. Stat. Ann. § 9-1-704(b)(vii). McKenzie later learn ed that shortly after her resignation, Undersheriff Mark Benton 2 contacted the POST Commission to request that it revoke her certification as a peace officer. 3 In this suit alleging discrimination prohibited by the ADA, McKenzie claims that Dovala refused to rehire her because he “regarded” her as disabled under 42 U.S.C. § 12102(2)(C) or because of her “re cord” of disability under § 12102(2)(B). 4 Concluding that McKenzie had not produced suffici ent evidence to allow a jury to find she was “disabled” under ei ther of those provisions, the district court granted defendant’s motion for summary judgment. McKenzie v. Dovala , No. 98-CV-289-D, slip order at 1 (D. Wyo. Aug. 16 , 1999).5 Recently, the Supreme Court held that the Elevent h Amendment bars

suits by state employees to recover money damages f or violations of the ADA.

(continued...) - 5 - II “We review the district court’s grant of summary ju dgment de novo, applying the same legal standard used by the distri ct court.” Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Se rvs. , 165 F.3d 1321, 1326 (10th Cir.) (citation omitted), cert. denied , 528 U.S. 815 (1999). Summary judgment is appropriate only “if the pleadings, dep ositions, answers to interrogatories, and admissions on file, together w ith the affidavits, if any, show that there is no genuine issue as to any material f act and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “When applying this standard, we view the evidence and draw reason able inferences therefrom in the light most favorable to the nonmoving party.” Simms , 165 F.3d at 1326 (citation omitted). The nonmovant is given “wide b erth to prove a factual controversy exists.” Jeffries v. Kansas , 147 F.3d 1220, 1228 (10th Cir. 1998) (quoting Ulissey v. Shvartsman , 61 F.3d 805, 808 (10th Cir. 1995)).
III The ADA provides that no covered employer “shall di scriminate against a qualified individual with a disability because of t he disability of such individual in regard to . . . the hiring . . . of employees.” 42 U.S.C. § 12112(a). 5 A5 (...continued)

Bd. of Trs. of Univ. of Ala. v. Garrett , No. 99-1240, 2001 WL 167628, slip op. at 16–17 (February 21, 2001). Because “the Eleventh A mendment does not extend its immunity to units of local government,” that de cision does not call into question the applicability of the ADA to counties, which are considered units of local government. Id. , slip op. at 11 (citing Lincoln County v. Luning , 133 U.S. 529, 530 (1890)); cf. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle , 429 U.S. 274, 280–81 (holding a school board is not entitled to assert Eleventh Amendment immunity because it more closely resembles a county or city than an arm of the state). - 6 - “qualified individual with a disability” is “an ind ividual with a disability who, with or without reasonable accommodation, can perfo rm the essential functions of the employment position that such individual hol ds or desires.” Id. § 12111(8). To establish a prima facie case of dis crimination under the ADA, a plaintiff must show “(1) that [s]he is disabled within the meaning of the ADA; (2) that [s]he is qualified—with or without reasonable accommodation; and (3) that [s]he was discriminated against because of [he r] disability.” Aldrich v. Boeing Co. , 146 F.3d 1265, 1269 (10th Cir. 1998) (internal qu otation omitted); see also MacDonald v. Delta Air Lines, Inc. , 94 F.3d 1437, 1443 (10th Cir. 1996). The district court granted summary judgmentfor the defendant because it concluded McKenzie could not show she was “disabled ” so as to satisfy the first prong of the test. McKenzie v. Dovala , No. 98-CV-289, tr. oral ruling at 10 (D. Wyo. Aug. 16, 1999).- 7 -

A “disability” is defined by the ADA as: “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment ; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2); see also Sutton v. United Air Lines, Inc. , 527 U.S. 471, 478 (1999). The ADA’s implementing regulations, promulgated by the Equal Employment Opportunity Com mission (“EEOC”), clarify what constitutes an “impairment that substantially limits . . . major life activities” under 42 U.S.C. § 12102(2)(A). Those r egulations provide that “[w]ith respect to the major life activity of worki ng . . . [t]he term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as comp ared to the average person having comparable training, skills and abilities.” 29 C.F.R. § 1630.2(j)(3)(i). A. Disability The district court concluded there was no genuine i ssue for trial as to whether McKenzie has a “disability” as defined in t he ADA, 42 U.S.C. § 12102(2). McKenzie does not allege she had an ac tual limiting impairment at the time she sought re-employment. To the contrary , she testified that she was healthy and had obtained permission to resume work. Instead, McKenzie contends she suffered discrimination because she wa s “regarded as” disabled or, alternatively, because of a “record of” disability. Id. § 12102(2)(C), (B).- 8 - 1 McKenzie argues that she submitted evidence creatin g a genuine issue of material fact as to whether the defendant “regarded ” her as disabled. See id. § 12102(2)(C). Under this theory of disability, sh e sought to establish that she “[h]as none of the impairments defined in . . . thi s section but is treated by a covered entity as having a substantially limiting i mpairment,” 29 C.F.R. § 1630.2( l)(3), arguing on summary judgment that she was “tre ated” by the Sheriff’s Office as significantly restricted in herability to perform the class of jobs under the broad heading of law enforcement. The district court had before it abundant evidence supporting McKenzie’s claim that she was regarded as disabled. Soon afte r McKenzie’s resignation, Benton sought to have her decertified by the POST C ommission because, as he explained, he lacked “trust” and “confidence” in he r and “didn’t feel that [she] should be a law enforcement officer any longer.” ( Appellant’s App. at 115.) Because certification as a peace officer requires t hat an individual “[b]e free of any physical, emotional or mental conditions which might adversely affect [her] performance of duty,” Wyo. Stat. Ann. § 9-1-704(b)( vii), a reasonable jury could infer from Benton’s seeking decertification that Be nton believed McKenzie had an “emotional or mental condition[]” that impaired her performance as a peace officer.- 9 -

The testimony of Dovala and Benton suggests that atthe time of McKenzie’s reapplication, defendant treated her as substantially limited in her ability to work in law enforcement due to the psych ological problems she had suffered in 1996. Dovala testified that when he me t with McKenzie in 1997, I had concerns for her mainly, as a police officer, we often have to testify in court. And what generally happens, or h appens frequently, is the officer is attacked. And I thought that if she had to do something, this might be brought up in court about what had happened to her in the past. And I was quite conce rned that if she had to use violence, for sure, that would be brough t up in court by the opposing side. And I thought she would suffer and so would the whole county. (Appellant’s App. at 97.) The following morning, the Sheriff’s staff concluded at a meeting that McKenzie “would be better off in some other field.” (Id. ) Despite Dovala’s admission that he “was worried abo ut liability,” he did not order a routine psychological or psychiatric examin ation to determine whether McKenzie was qualified to be a peace officer under Wyoming law. (Id. at 99.) Benton, too, testified that at the time of McKenzie ’s 1997 application he was concerned about her history of “problems,” as w ell as the possibility that fellow officers and the public would not “trust” he r, and concluded that “it was [not] in her best interest or the best interest of the office for her to regain her position in law enforcement.” (Id. at 111, 110.) He acknowledged that McKenzie was eliminated from consideration without an evaluation because of her history of psychological problems, admitting “s he didn’t make it to that step.”- 10 -

(Id. at 110.) Benton also testified that although he w as aware McKenzie had been authorized by Dr. Viray to return to work, he “didn’t care for the concept” of her return. (Id. at 108.) According to the EEOC’s interpretive guidelines, if an individual can show that a potential employer refused to hire her based on “myth, fear, or stereotype,” including concerns regarding safety, insurance, liability, and acceptance by coworkers and the public, the individual will satis fy the “regarded as” component of the definition of disability. 29 C.F.R. pt. 163 0 app. § 1630.2( l). Dovala and Benton admitted that their concerns included safety , liability, and public acceptance. The fact that defendant rejected McKen zie’s application without submitting her for a standard psychological or psyc hiatric assessment as provided for by state law is further evidence that those con cerns were based on “myths, fears, and stereotype” rather than on an individual ized assessment of her qualifications. While conceding defendant “may have considered plai ntiff substantially limited in her ability to work as a deputy sheriff, ” the district court ruled that McKenzie failed to establish that she was regarded as unable to perform a “class of jobs” or a “broad range of jobs in various class es” as compared to others with comparable training, skills and abilities. McKenzi e v. Dovala , No. 98-CV-289, tr. oral ruling at 8–9. “[T]o be regarded as subst antially limited in the major life- 11 -

activity of working, one must be regarded as preclu ded from more than a particular job.” Murphy v. United Parcel Serv., In c. , 527 U.S. 516, 523 (1999);

see also Bowen v. Income Producing Mgmt. of Okla., Inc. , 202 F.3d 1282, 1287 (10th Cir. 2000). Citing that rule, defendant argues that McKenzie ha s not shown a substantially limiting impairment under the ADA bec ause after her resignation from the Sheriff’s Office she worked in several dif ferent occupations, including caretaker, store clerk, and resident counselor. Co ntrary to this assertion, McKenzie’s employment in the wake of her illness is beside the point in two respects. First, her claim under 42 U.S.C. § 12102 (2)(C) is not that she currently has an impairment limiting her ability to work, butthat the Sheriff’s refusal to consider her application was based on his mistaken perception that she continues to suffer from such an impairment. Second, none of the positions in which McKenzie was employed during the cited period is part of the “class” of law enforcement jobs, her prior and preferred field. 2 9 C.F.R. § 1630.2(j)(3)(i). The evidence McKenzie submitted shows a factual con troversy as to whether defendant viewed McKenzie as limited in herability to work in the class of jobs comprising law enforcement. Dovala’s refus al to consider employing her in a less sensitive post within the Office, such as in the civil division responsible for serving papers and subpoenas, the records divis ion, the administrative6 Our principal case rejecting a claim of disability under 42 U.S.C.

§ 12102(2)(C) is readily distinguishable. Sorensen v. University of Utah Hospital , 194 F.3d 1084, 1089 (10th Cir. 1999), in which we held that a nurse diagnosed with multiple sclerosis did not establish she was “regarded as” disabled by her employer, is inapplicable because t he plaintiff in that case alleged only that the hospital regarded her as precluded fr om holding the position of flight nurse. The plaintiff admitted that the hosp ital provided her with numerous opportunities to work as a nurse in other units fol lowing her diagnosis and hospitalization. Id. Likewise, in Murphyit was undisputed that the plaintiff, a mechanic, was (continued...) - 12 - division, or the jail division, suggests that he re garded her as substantially limited in her ability to work in an entire class of jobs, not merely in the particular job of patrol officer. Additionally, by seeking to have M cKenzie decertified as a “peace officer” because he “didn’t feel that [she] should be a law enforcement officer any longer,” defendant effectively sought to bar he r from taking a job as a campus police officer, an investigator for hunting and fishing outfitters, an inspector of livestock, a park superintendent or as sistant park superintendent, a park ranger, or any other post that in Wyoming fall s within the definition of “peace officer.” Wyo. Stat. Ann. § 7-2-101(iv). S ignificantly, Dovala also testified that his staff rejected McKenzie’s reques t to reapply because “[t]hey thought that she would be better off in some other field.” (Appellant’s App. at 97.) These statements constitute persuasive eviden ce that Dovala regarded McKenzie as unable to work in a class of jobs becau se of a psychological impairment. 66 (...continued)

generally employable in his preferred field. 527 U .S. at 524. He was thus unable to show that he was regarded as restricted in a cla ss of jobs and was “at most, regarded as unable to perform only a particular job .” Id. at 525. By contrast, McKenzie submitted uncontroverted evidence that, si nce her illness, she has been regarded as unemployable in the “class of jobs util izing [her] skills.” Id. at 524.

- 13 - By refusing to consider her for a job in her formerworkplace despite ten years of successful service, the Sheriff treated he r as significantly restricted “as compared to the average person having comparable tr aining, skills and abilities.” 29 C.F.R. § 1630.2(j)(3)(i). As Dovala and Benton acknowledged in their respective depositions, it is undisputed that someo ne with McKenzie’s training, skills, and abilities, but without a psychological disability, could have been hired as a patrol officer. Viewing the factual record in the light most favorable to the plaintiff, we see a genuine issue for trial as to w hether the Sheriff regarded McKenzie as disabled under the ADA.
2 Alternatively, McKenzie argues the defendant refuse d to consider her application on the basis of a “record” of disability. 42 U.S.C. § 12102(2)(B). A record of disability is a history of impairment that substantially limited a major life activity of a plaintiff. 29 C.F.R. § 1630.2(k); see also Sorensen v. Univ. of Utah Hosp. , 194 F.3d 1084, 1086–87 (10th Cir. 1999). To sati sfy this definition, McKenzie therefore must establish that at some poin t her impairment actually did- 14 -

substantially limit her ability to work. Noting “[ i]t is dispositive that any arguable record of impairment related exclusively t o her position of deputy sheriff,” the district court concluded there was in sufficient evidence to show that McKenzie ever was “significantly restricted” in eit her a class of jobs or a broad range of jobs in various classes. McKenzie v. Dova la , No. 98-CV-289, tr. oral ruling at 7–8. In determining whether an impairment is substantial ly limiting such that it may support a record of disability under the ADA, the following factors are considered: “(i) [t]he nature and severity of the impairment; (ii) [t]he duration or expected duration of the impairment; and (iii) [t]h e permanent or long term impact” of the impairment. 29 C.F.R. § 1630.2(j)(2 ). McKenzie’s record of absence from work on administrative leave, along wi th her physicians’ reports, tends to show that her ability to work was substant ially limited by her illness. Her complete inability to work prior to her resignation was due in part to at least one hospital admission, suggesting that the nature and severity of her impairment were grave. Physicians’ reports indicate that McKe nzie suffered from psychiatric problems during the year prior to her resignation. At least as early as April 1996, she missed work because of symptoms of post-traumat ic stress disorder. The duration of her illness, which kept her from workin g throughout much of the summer and autumn of 1996, also indicates a record of impairment. Although- 15 -

the permanent or long-term impact of McKenzie’s ill ness would not tend to support a finding of disability, inasmuch as she ha s been released to return to work, the evidence as a whole could lead a reasonab le jury to conclude that she had a record of a disability for purposes of the AD A. When Dovala placed McKenzie on administrative leave , he told her that she would not be reinstated without “a complete psy chological evaluation.” (Appellant’s App. at 49.) His subsequent failure t o order a psychological assessment before turning down McKenzie’s applicati on suggests that his decision was based on his knowledge of her previous impairment and not on any current inability to perform the job’s essential fu nctions. This lack of an employer evaluation contrasts with McKenzie’s own p hysician’s assessment that “she is ready to return to work” and her psychother apist’s statement that she is “qualified to perform the duties of any law enforce ment position for which she is technically qualified at the time she was discharge d from treatment.” (Appellant’s App. at 145, 160.) Dovala even admitt ed in his deposition that the staff members’ belief that McKenzie should no longe r work in law enforcement was “based upon what they knew about what had happe ned the previous year.” (Id. at 97.) That evidence suffices to create a genuin e issue of material fact as to whether the Sheriff relied on McKenzie’s history of psychiatric illness when he rejected her application.- 16 - B. Qualification While the district court’s ruling did not address the second prong of a prima facie case under the ADA, which requires a sh owing that the plaintiff is a qualified individual, the defendant argues that McK enzie did not establish she could perform the essential functions of the job sh e sought. 42 U.S.C. §§ 12112(a), 12111(8). Contrary to that assertion, McKenzie produced unrebutted evidence that she was qualified for a po sition within the Sheriff’s Office. She submitted the following exchange from Dovala’s deposition: Q. [E]xcluding what you knew about Lorraine [McKenz ie] relative to the events that occurred in 1996 . . . she was otherwis e qualified for the position as a sheriff’s officer, wasn’t she? A. Excluding the events, yes, sir. (Appellant’s App. at 98.) In Benton’s deposition, he agreed: Q. And excluding her history or her record of her p sychological therapy, the events at the cemetery and on the mountain, was she—would she have been otherwise qualified for the position? . . .
A. Yes. (Id. at 110.) Dovala also acknowledged that during McK enzie’s tenure, she had become a sergeant, “probably the most ranking offic er in the sheriff’s office” according to his testimony. (Id. at 94.) Nonetheless, defendant argues that because Dr. Viray’s letter did not articulate the specific tasks McKenzie was able or unable to perform at the time- 17 -

of her release in November 1996, the letter can notsupport a finding that she was qualified to work in the Sheriff’s Office. That co nclusion would follow only if we were to view the evidence in the light leastfavorable to the non-moving party, and that is not our task on review of summary judgment. See Simms , 165 F.3d at 1326. The ADA’s definition of a “qualified individual wit h a disability” includes an individual who can perform the essential functio ns of the job she “holds or desires .” 42 U.S.C. § 12111(8) (emphasis added). Because the ADA explicitly covers job applicants as well as employees, its pro tection extends to a former employee with a disability who is qualified for a p osition she desires. See id. § 12112(a) (prohibiting, inter alia, “discriminat[i on] . . . in regard to job application procedures” and “the hiring . . . of employees”), § 12112(b)(5)(A) (stating “discriminate” includes “not making reason able accommodations to the . . . limitations of . . . an applicantor employee” (emphasis added)); Smith v. Midland Brake, Inc. , 180 F.3d 1154, 1161 (10th Cir. 1999) (en banc) (“ To read the ADA otherwise, would render the word ‘desires’ meaningless, and we must avoid such a construction.” (citations omitted)). McKenzie asked to be considered for any existing job in the Sheriff’s Of fice. Under the ADA, McKenzie is a “qualified individual” even if she is no longer qualified as a patrol7As Dovala and Benton admit, firing a gun in a cem etery, which prompted

Dovala to place McKenzie on administrative leave, w as not an illegal act. - 18 - officer as long as she can perform another job with in the Sheriff’s Office that she “desires.” 42 U.S.C. § 12111(8). According to defendant, McKenzie was denied employm ent based on conduct, including cutting her wrists and firing he r gun at her father’s grave, that would preclude her from passing the background chec k required under Wyoming law. See Wyo. Stat. Ann. § 9-1-704(b)(vi) (requiring backgr ound investigations for all peace officer candidates). That argument i s flawed in two respects. The background investigation is conducted to determine that candidates “[h]ave good moral character.” Id. Defendant does not argue the above-mentioned inci dents are relevant to McKenzie’s moral character, and suc h an argument would be implausible. The conduct that precipitated McKenzi e’s resignation reflects her illness, not an absence of “good moral character” t hat would cause her to fail a background investigation. 7 More importantly, subject to narrow exceptions such as those for employees who pose a “direct threat” to the health or safety of others, Den Hartog v. Wasatch Acad. , 129 F.3d 1076, 1087 (10th Cir. 1997), the ADA’s antidiscrimination provision “does not contemplate a st ark dichotomy between ‘disability’ and ‘disability-caused misconduct,’ bu t rather protects both.” Nielsen- 19 -

v. Moroni Feed Co. , 162 F.3d 604, 608 (10th Cir. 1998) (quoting Den H artog , 129 F.3d at 1088). In the instant case, the ADA pr otects McKenzie from adverse employment action based on conduct related to her i llness so long as she does not pose a “direct threat.” 42 U.S.C. § 12113(a), (b); see Borgialli v. Thunder Basin Coal Co. , 235 F.3d 1284, 1295 (10th Cir. 2000) (holding that a disabled plaintiff, to show she is qualified to work in an inherently d angerous job, must show that she does not pose a direct threat to others). A “d irect threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” 42 U.S.C. § 12111(3). The determination that an individual is unqualified because she poses a direc t threat must be “based on an individualized assessment of the individual’s prese nt ability to safely perform the essential functions of the job,” which in turn mustbe based on “a reasonable medical judgment that relies on the most current me dical knowledge and/or on the best available objective evidence.” 29 C.F.R. § 1630.2(r); see also Den Hartog , 129 F.3d at 1089. Defendant has not argued that McKenzie poses a dire ct threat that could not be eliminated by reasonable accommodation. See 42 U.S.C. § 12111(3). There is no evidence suggesting in what way, once s he had undergone rehabilitation and been cleared by her doctor, empl oying McKenzie in a position that does not require the use of force would create a direct threat to the public or8 At summary judgment, defendant alleged that emplo ying McKenzie

would create “a significant safety risk.” (Appelle e’s App. at 41.) Even if we were to read his motion as raising a “direct threat ” defense, defendant did not present that argument on appeal, much less support it with a “reasonable medical judgment” that relied on “the best available object ive evidence.” 29 C.F.R. § 1630.2(r). - 20 - to her co-workers. 8 In fact, when Benton was asked whether McKenzie h ad “act[ed] out in any way that . . . was detrimental to the Natrona County Sheriff’s [Office] in her performance of her duties,” he resp onded “I can’t think of any at this time.” (Appellant’s App. at 111.) See Den Hartog , 129 F.3d at 1088–89 (holding that where the record contained testimony that plaintiff did not pose a direct threat, defendants were not entitled to summ ary judgment on the ground that plaintiff posed such a threat). As we noted above, Dovala did not even submit McKenzie for a standard psychological test a s provided for by Wyo. Stat. Ann. § 9-1-704(b)(vii). Without an “individualizedassessment” of the precise nature and likelihood of the risk stemming from McK enzie’s illness, a genuine dispute of material fact remains regarding whether she is qualified to resume a position in the Office where she worked successfull y for a decade. 29 C.F.R. § 1630.2(r). McKenzie may or may not have had a di squalifying mental condition, but that is a question for a jury to ans wer with all the available evidence before it.- 21 - C. Discrimination With respect to the third and final element of her prima facie case, McKenzie submitted ample evidence that the Sheriff discriminated against her on the basis of his view that she suffered from a subs tantially limiting impairment. The ADA defines the term “discriminate” to include “not making reasonable accommodations to the known physical or mental limi tations of an otherwise qualified individual with a disability who is an ap plicant or employee, unless such covered entity can demonstrate that the accomm odation would impose an undue hardship.” 42 U.S.C. § 12112(b)(5)(A). Under the ADA, reasonable accommodation includes re assignment to a vacant position as well as “other similar accommodations.” Id. § 12111(9)(B). The crux of McKenzie’s case is her claim that defen dant refused to accommodate her by considering her for a position in which she would not pose a threat to the public. As we noted above, see supraPart III.B, the ADA explicitly protects job applicants as well as employees. 42 U.S.C. § 12112 (a), § 12112(b)(5)(A). According to McKenzie’s deposition testimony, defen dant passed over her application when openings became available at leastonce between her release in November 1996 and her meeting with Dovala in Octobe r 1997, and defendant has not advanced any evidence showing that there was no vacant position in one of those departments into which McKenzie could have be en hired. The Sheriff’s- 22 -

refusal to consider McKenzie for a position in, forexample, the jail or the records division is evidence of discrimination unde r the ADA. Of course, whether McKenzie will ultimately succeed in proving that prohibited discrimination occurred is a different question, on e not appropriate for consideration on summary judgment. McKenzie submitted sufficient evidence for a reason able jury to find that she was qualified for a position within the Sheriff’s Office, that she had a record of impairment or that the defendant regarded her as substantially limited in her ability to perform a class of jobs, and that he dis criminated against her on the basis of that record or belief. Dismissing her cla im on summary judgment was therefore improper. While it is disputed whether M cKenzie can work safely in the Sheriff’s Office, that is precisely the kind of dispute traditionally resolved by a jury, not by a court at the summary judgment stag e. The ADA does not require Natrona County to put its staff and the public at r isk by employing an individual who poses a threat to others, but it does require t he County to provide due consideration to a disabled individual who might be able, with reasonable accommodation, to perform her work productively and safely.
IV
We REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion.