### In the



# United States Court of Appeals

For the Seventh Circuit

No. 15

‐ 2047

E ILEEN M. F ELIX

, Plaintiff

‐ Appellant

,

v.

W ISCONSIN D EPARTMENT OF

T RANSPORTATION

, Defendant

‐ Appellee.

Appeal from the United States District Court for the

Eastern District of Wisconsin,.

No. 1:13

‐ cv

‐ 01188

‐ WCG

— William C. Griesbach

, Chief Judge.

A RGUED F EBRUARY 12, 2016

— D ECIDED J ULY 6, 2016

Before W OOD

, Chief Judge

, R OVNER

, Circuit Judge

, and

B LAKEY

, District Judge. *

R OVNER

, Circuit Judge. Eileen Felix sued her former em

‐ ployer, the Wisconsin Department of Transportation, under the

* The Honorable John Robert Blakey, of the Northern District of Illinois,

sitting by designation.2 No. 15

‐ 2047

Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 et seq.

, contending that she was discharged solely because of an

anxiety disorder and related disabilities. The district court

entered summary judgment against Felix, reasoning that the

undisputed facts demonstrated that she was discharged not

solely because of her disabilities but rather based on workplace

behavior that indicated to her employer that she posed a safety

risk to herself and others. Felix v. Wis. Dep’t of Transp.

,

104 F. Supp. 3d 945 (E.D. Wis. 2015). We affirm.

I.

Eileen Felix suffers from a variety of mental health disabili

‐

ties, including post

‐ traumatic stress disorder (“PTSD”), major

depressive disorder, anxiety, obsessive compulsive disorder,

and a medical phobia. For ease of reference, and because her

PTSD and anxiety disability appear to be the conditions most

relevant to the facts of this case, we will refer to her disabilities

collectively as an anxiety disorder. She manages the symptoms

of her disorder by taking prescribed medication and attending

counseling and therapy sessions.

Felix was employed by the Wisconsin Department of

Transportation (“WisDOT”) from 1998 to 2013 in the Division

of Motor Vehicles (“DMV”) customer service facility in

Appleton, Wisconsin. At the time of her discharge in 2013, she

held the position of DMV Field Agent Examiner

‐ Advanced.

Her duties included administering road tests to new drivers

applying for licenses (approximately 20 per week) and per

‐ forming a variety of duties behind the counter at the DMV

office, including processing paperwork for vehicle and driver’s

licenses and other DMV documentation and collecting the feesNo. 15

‐ 2047 3

associated with these transactions. She was regarded as a good

employee overall: “she was punctual, reliable, friendly with

customers, and patient with new drivers.” R. 26 at 4. She

excelled in administering road tests.

The one area in which Felix tended not to meet expectations

was in financial accountability. She would occasionally collect

the wrong fee amount from a customer or key in the wrong

amount in recording a transaction, accept an unsigned or

undated check, or make an error in tallying customer pay

‐

ments that would result in discrepancies between her record

‐ keeping and the amount actually present in her cash register at

the close of business. Prior to 2011, her performance in this area

was rated unsatisfactory in seven annual reviews, but her

performance overall was nonetheless deemed satisfactory. In

2011, however, a rule change precluded an overall rating of

satisfactory if the employee did not meet expectations in

certain specified areas, including financial accountability.

Because WisDOT determined that Felix did not meet financial

accountability performance standards in 2011, she was given

an overall evaluation of unsatisfactory. Felix was placed on

probation from April through September 2012 on this basis,

and she received an unsatisfactory evaluation at the end of that

period when her difficulties persisted. Her performance

improved during a consecutive three

‐ month probationary

period that ended in December 2012. But her performance

evaluation at the end of the first quarter in 2013 reflected

renewed problems. Under WisDOT’s procedures, this called

for the commencement of a final performance improvement

plan which, if Felix did not complete successfully, would result

in her discharge. Felix contacted WisDOT’s human resources4 No. 15

‐ 2047

director, Randy Sarver, on both April 17 and 18, 2013, regard

‐ ing her evaluation. She was concerned about the evaluation

and the possibility that she was at risk of losing her job.

Prior to April 18, Felix had experienced a number of panic

attacks at work, but typically not in front of others and not in

the public areas of the office. One exception was an attack that

occurred on June 19, 2012, after a supervisor informed her that

her cash drawer was missing ten dollars and a check. She was

noticeably upset, and reported to a supervisor that she was

having difficulty breathing and holding back tears and needed

to leave work. She was then absent from work for the remain

‐

der of the week. It was at that time that she first apprised her

employer that she suffered from an anxiety

‐ related disorder.

But in general, if Felix felt an attack coming on, she would

inform her supervisor that she needed to retreat to the rest

‐

room for 15 minutes and do some breathing exercises, after

which she could return to her station and continue working.

Felix had also explored the possibility of a transfer to

another WisDOT facility. She requested a transfer to the Eau

Claire DMV facility in or around June 2012. But because she

was subject to a performance improvement plan due to her

unsatisfactory performance, she was deemed ineligible for a

transfer at that time. She later inquired about the possibility of

a medical transfer as an accommodation to her disability, but

according to WisDOT, she never followed through on the

inquiry by completing and submitting the appropriate paper

‐

work.

On the morning of April 18, 2013, a coworker known by the

nickname “Ace” came into Felix’s work area at the DMV toNo. 15

‐ 2047 5

look through some reference materials that were stored on a

shelf. (Felix and Ace were at one time on friendly terms, but

they had fallen out several years earlier. Felix had filed an

incident report early in 2012 contending that Ace had inten

‐ tionally rammed her with her shoulder. WisDOT investigated

the report but had been unable to substantiate Felix’s allega

‐ tions.) Ace bent over while looking through the reference

materials, and when she straightened up at the conclusion of

her search, static electricity caused strands of her long hair to

cling to Felix’s person. As Ace left the area, Felix felt a panic

attack coming on. She went to her supervisor, Cliff Ehlert, and

told him that she needed to visit the restroom in order to calm

down. Ehlert told her to take all the time she needed.

About 30 minutes later, Ehlert heard muffled screaming

coming from the public lobby of the office. As he was rising

from his desk to investigate, an employee told him that Felix

had fallen down. When Ehlert arrived in the lobby area, he saw

Felix on the floor behind one of the work counters. She was

lying on her side, clutching her cell phone, and crying out.

Ehlert noticed that she had marks, scratches, and cuts on her

right wrist, some of which were bleeding slightly. As Felix

struggled to speak through her cries, Ehlert could only make

out some of what she was saying. He would later recall her

saying that “[y]ou all hate me

... they all hate you

... every

‐ body hates you” and “[t]hey think you’re crazy

... you all think

I’m crazy

... they want to get rid of you.” R. 36 at 55 ¶ 89. She

also said, “I want my insurance

... they will take your insur

‐

ance

... don’t let them take your insurance ...”and “I need to

get my money—don’t take my money

... they don’t trust you

... they steal your money.” R. 36 at 55 ¶ 89. At one point, Felix6 No. 15

‐ 2047

rolled onto her back and began kicking her legs. Ehlert then

noticed that she also had scratches and cuts on her left wrist.

Ehlert heard Felix say, “They’re too dull

... the knives were too

dull” and “God let me die

... I just want to die.” R. 36 at 56 ¶

91. Felix would later aver that at no time had she ever been

suicidal, including during the April 18th incident.

Emergency personnel were summoned to the DMV by an

employee’s 9

‐ 1

‐ 1 call. A paramedic and a co

‐ worker eventually

succeeded in calming Felix down and moving her to a break

room. She was ultimately transported to the hospital. Felix’s

co

‐ workers were shaken and concerned by the incident. Ehlert

subsequently brought in a counselor to meet with staff

members.

On the following day, in response to an email inquiry from

regional manager Don Genin, Sarver indicated that Felix

would have to undergo an independent medical examination

(“IME”) in order to determine whether she could return to

work. Sarver wanted the IME to consider both her own safety

and the safety of others in the workplace. Ehlert, as Felix’s

supervisor, was concerned about the fact that Felix’s road

‐ test

responsibilities regularly placed her alone in automobiles with

16

‐ year

‐ old drivers seeking their first licenses. He wanted to be

sure that Felix would not have another panic attack during one

of these tests. Sarver thus notified Felix by letter on April 25,

2013, that she would be required to participate in a fitness

‐ for

‐ duty evaluation as a result of the events of April 18, and that

she would not be able to return to work until this evaluation

had been conducted and the results reviewed by managementNo. 15

‐ 2047 7

personnel. 1 At no time between the April 18th episode and

Felix’s subsequent discharge did WisDOT permit Felix to

return to work.

Meanwhile, on April 19, Ehlert and Genin signed an

evaluation officially deeming Felix’s performance during the

preceding three

‐ month performance improvement period to be

unsatisfactory. They were aware, obviously, that Felix was out

of the office, but their evaluation was due to human resources

and they did not know when Felix would return. In view of the

negative rating, Felix thereafter would be subject to a final

performance improvement plan if and when she returned to

work.

Ehlert, in the meantime, filled out a Family & Medical

Leave Act (“FMLA”) leave request on Felix’s behalf several

days after the incident. After speaking with Felix about the

request, he submitted the form on April 24. Felix’s daughter

subsequently delivered a notice from Dr. Michael Panzer, a

physician who had seen Felix in the emergency room following

the April 18th episode, indicating that Felix would be “unable

to work for medical reasons” until she saw her doctor on May

22. R. 25 Ex. A.

1 The letter cited Wis. Stat. § 230.37(2) as authority for the IME. That statute

in relevant part provides that a state employer may demote, reassign,

reschedule, or (as a last resort) discharge an employee who becomes

physically or mentally incapable of efficiently and effectively performing

the duties of his position by reason of a disability; the statute also authorizes

the employer to require an employee to submit to a medical or physical

examination in order to determine his fitness to continue in service.8 No. 15

‐ 2047

WisDOT designated Dr. Daniel Burbach, an independent

medical examiner, to examine Felix and determine whether she

could safely resume her duties. 2 Rebecca English, WisDOT’s

medical coordinator, emailed Felix on May 8 to advise her that

her fitness

‐ for

‐ duty examination with Burbach was scheduled

for May 28, 2013. English “strongly recommend[ed]” that Felix

provide pertinent medical information from her treating

professionals directly to Burbach prior to the examination.

R. 20

‐ 1 DOJ 146. (Sarver had given her the same recommenda

‐

tion in his April 25th letter to Felix.) Felix instead provided a

list of her providers to Burbach and a signed release, thinking

it would be simpler for Burbach to contact them directly.

Burbach saw Felix as scheduled on May 28. According to Felix,

he spoke with her for no more than 30 minutes. Burbach also

conducted two collateral interviews as part of his evaluation,

but the record does not disclose with whom, other than Felix,

he spoke. Burbach evidently did not obtain records from either

of the two mental health professionals Felix was then seeing

for her anxiety

‐ related conditions—Dr. John Thomas Beld, her

psychiatrist, and John R. Pilon, a licensed professional

counselor—or from her family practitioner, Dr. Meena P. Vir.

On June 2, WisDOT received Burbach’s IME. Burbach

concluded that “Ms. Felix remains at increased risk for

potentially violent behavior toward self and others within the

workplace.” Ex. 1001 DOJ 493. (emphasis in original). He

added that on the basis of his evaluation,

2 Burbach was not employed by or affiliated with WisDOT. He was

selected by or recommended to WisDOT by PsyBar, a private third

‐ party

vendor.No. 15

‐ 2047 9

I would predict future episodes of crying, com

‐ plaining, excuse making, blaming others, isola

‐ tion/estrangement, resistance to supervisory

efforts, retaliatory verbal threats, purposeful

provocation/antagonism of others, angry and

irrational outbursts (e.g. shouting, screaming,

slamming door/drawers, breaking items), physi

‐

cal altercations with coworkers (e.g., shoving,

elbowing, shouldering, slapping), self

‐ inflicted

injuries, suicidal threats and gestures (e.g.,

vague suicidal comments, non

‐ lethal self

‐ cutting

or pill ingestion), and true suicidal efforts.

Ex. 1001 DOJ 494. Burbach opined that “Ms. Felix is unable to

safely and effectively resume her position at the Appleton

DMV Service Center.” Ex. 1001 DOJ 496. “Less clear,” he

added, “is whether she would be able to do so at another DMV

Service Center subsequent to additional psychiatric treatment.”

Ex. 1001 DOJ 496. In the exercise of his professional judgment,

Burbach “would not recommend that Ms. Felix be permitted

by the Wisconsin DOT to continue in her current position at

the Appleton DMV Service Center.” Ex. 1001 DOJ 497 (empha

‐

sis in original). Burbach noted that his opinions were not based

on Felix’s current course of treatment.

On June 19, Sarver provided Felix with a copy of Burbach’s

report along with a letter inviting her to submit any other

information that Felix believed would be relevant to assessing

her status with WisDOT. Sarver noted in the letter that

WisDOT was considering the possibility of discharging her.

Separately, English had been working with Felix since May to

gather additional documentation required as support for her10 No. 15

‐ 2047

ongoing FMLA leave. Felix’s psychiatrist, Dr. Beld, had

submitted an incomplete form to WisDOT on May 28. English

followed up with Felix on June 6 to advise her that WisDOT

required complete documentation by June 17. Despite a

number of reminders, Felix did not submit the requested

documents by that deadline. English received a completed

form from Dr. Beld on June 19 indicating that Felix could

return to work on July 15, 2013, but should work on a part

‐ time

basis of 20 hours per week until August 20, 2013. Some of Dr.

Beld’s handwriting on the form was illegible to English. She

was able to read Beld’s observation that “current work

environment worsens the above, she may tolerate a new work

environment better.” Ex. 1001 DOJ 489. 3 On June 24, Felix

supplied English with a follow

‐ up note from Beld stating

simply, “Please allow my patient to return to work starting

July 15, 2013.” Ex. 1001 DOJ 465. That note made no mention

of Felix working initially on a part

‐ time basis when she

returned and offered no explanation for Beld’s apparent

conclusion that Felix was ready to return to work on a full

‐ time

basis. English also received and reviewed a variety of medical

records from Felix’s other medical and counseling providers,

but none of these records included a statement or opinion as to

whether Felix was fit to return to work. Only Beld’s note

addressed that question, albeit in summary fashion. The

3 Beld would later note in his declaration that the form reflected his

findings that Felix was suffering from depression and anxiety; that her

depression was negatively affecting her mood, energy, motivation, and

functioning; that her anxiety was negatively affecting her stress tolerance;

and that Felix would continue with follow

‐ up visits with Beld and with

medical management as part of her treatment plan.No. 15

‐ 2047 11

medical certification form he submitted added only that Felix

would continue her course of therapy with him and with

medical management of her condition. But as English had

noticed, Beld himself had indicated on that form that Felix’s

current work environment tended to aggravate her condition.

English, believing that she needed additional information

from Beld, followed up with him directly. At that time, English

learned that Beld lives in Utah and sees his patients, including

Felix, by video conference. Beld spoke with English on June 25.

He informed English that he was aware of the April 18th

episode and that Felix had undergone a fitness

‐ for

‐ duty

evaluation, but he told English he had not spoken with

Burbach and declined to see a copy of Burbach’s report. In an

apparent reference to the possibility of a transfer, English

advised Beld that Felix was subject to a “final improvement

plan” and would not be changing work locations. Beld stated

that Felix could safely return to work and was capable of

resuming her duties at the Appleton DMV facility. According

to Beld, English voiced disagreement with his assessment that

Felix posed no “risk” to herself or others. Beld inferred from

her tone and attitude that English was simply assuming that

because Felix had posed a risk at one time she must still be a

risk now, and he told her that, in his view, she was wrong to

make this assumption. Beld would later aver that English’s

remarks and attitude betrayed “a shocking level of stigmatiza

‐

tion against [Felix] based on her mental illness.” R. 33 at 5 ¶ 22

& Ex. Felix 35.

WisDOT determined that Felix was unfit for continued

employment and terminated her on that basis. It considered

the information supplied by Felix’s medical providers, includ

‐12 No. 15

‐ 2047

ing Beld, but concluded in light of Burbach’s independent

medical assessment that she could not safely perform her

duties at the Appleton DMV office. It considered her ineligible

for transfer to another office because, in view of her persistent

failure to meet expectations as to financial accountability, she

was subject to a final performance improvement plan. Felix

had been on FMLA leave since the April 18th incident and

would exhaust all of her available state and federal leave time

by July 12. On June 26, WisDOT notified Felix by letter that it

intended to discharge her effective July 12. The letter cited the

episode of April 18, which it described as “a critical incident

... that called into question your own safety as well as the safety

of your coworkers and the general public.” R. 25

‐ 9 at 1. As a

result of that incident, the letter explained, an IME had been

called for to evaluate her fitness for duty. The results of the

IME indicated that Felix remained unfit for duty. The letter

went on to reference essentially the same portions of the IME

from which we ourselves have quoted. WisDOT had consid

‐

ered the additional information that Felix had submitted, but

“this information did not contribute new information about

your ability to perform your job duties in a safe, efficient and

effective manner.” R. 25

‐ 9 at 2. WisDOT had thus resolved to

terminate Felix’s employment.

Felix filed suit against WisDOT pursuant to the Rehabilita

‐

tion Act and the FMLA, 29 U.S.C. § 2601 et seq. She subse

‐ quently stipulated to a dismissal of one of her two FMLA

claims and she does not challenge the resolution of the other

FMLA claim on appeal.

The district court granted summary judgment to WisDOT

on Felix’s claim that she was discharged in violation of theNo. 15

‐ 2047 13

Rehabilitation Act. 4 It found that the undisputed facts demon

‐

strated that Felix’s termination was based not solely on her

disability but rather on her behavior, the disruption it caused

in the workplace, and the danger it posed to herself and others.

Felix

, 104 F. Supp. 2d at 954

‐ 55 The court rejected Felix’s

contention that WisDOT was necessarily making a “direct

threat” defense that it had not pleaded as an affirmative

defense and as to which WisDOT would bear the burden of

proof. Id. at 953. Instead, the court understood WisDOT to be

arguing, consistent with Palmer v. Circuit Ct. of Cook Cnty.

,

117 F.3d 351, 352 (7th Cir. 1997), and Brumfield v. City of

Chicago

, 735 F.3d 619, 630

‐ 31 (7th Cir. 2013), that Felix’s

behavior during the April 18th incident demonstrated that she

was not qualified to continue in WisDOT’s employ, irrespec

‐

tive of the fact that the behavior was caused by her disabilities.

Hysterical screaming and suicidal behavior by

an employee in front of co

‐ workers and mem

‐

bers of the public is simply not something an

employer generally has to tolerate or accommo

‐

date.

... Absent a disability, an employer would

be entirely justified in terminating an employee

who engaged in such behavior immediately.

Here, because of the perceived mental health

component, the DOT required Felix to undergo

a fitness for duty evaluation before she would

be allowed to return. Upon reading the resulting

4 Felix also argued below, unsuccessfully, that WisDOT had failed to

accommodate her disabilities by not transferring her to a different office.

Felix has not challenged the district court’s disposition of that claim.14 No. 15

‐ 2047

report and considering the submissions by

Felix’s doctors, the DOT decided to terminate

her employment.

Id. at 954. In the wake of the April 18th episode, the district

court reasoned, WisDOT had ample cause to be concerned not

only for Felix’s own safety, but for the safety of her co

‐ workers

and members of the general public, including the new drivers

to whom she administered road tests. Dr. Burbach’s report

concluded that Felix remained at risk for potentially violent

behavior toward herself and others, and the Department was

entitled to rely on Dr. Burbach in discharging Felix, notwith

‐ standing the contrary opinion of Felix’s own therapists. Id. at

955. Ultimately, “Felix has offered no evidence suggesting that

the DOT was not truly convinced that she was unfit for duty as

a result of her outburst on April 18, 2013, and instead fired her

because of a disability.” Id.

II.

Felix argues there are disputes of material fact that preclude

summary judgment, including disputes as to whether she was

discharged solely because of her disabilities and whether, after

the April 18th episode, she remained a qualified individual

with a disability who was able to perform the essential

functions of her job and did not present a direct threat to the

safety of herself and others in the workplace. She contends that

the court improperly weighed the evidence in entering

summary judgment against her, and additionally that it did not

employ the correct legal analysis in assessing the record.

Section 504 of the Rehabilitation Act, as amended, protects

a “qualified individual with a disability” from discriminationNo. 15

‐ 2047 15

“solely by reason of“ her disability in any program receiving

federal assistance. 29 U.S.C. § 794(a). To succeed on a claim of

employment discrimination under this statute, a plaintiff must

prove that: (1) she is disabled within the meaning of the

statute; (2) that she was otherwise qualified for the job in

question; (3) that she was discharged or the subject of other

adverse action solely because of her disability; and (4) the

employment program of which her job was a part received

federal financial assistance. See Novak v. Bd. of Trustees of S. Ill.

Univ.

, 777 F.3d 966, 974 (7th Cir. 2015); Jackson v. City of Chicago

,

414 F.3d 806, 810 (7th Cir. 2005); Branham v. Snow

, 392 F.3d 896,

902 (7th Cir. 2004); Silk v. City of Chicago

, 194 F.3d 788, 798 n.6

(7th Cir. 1999). In this case, there is no dispute that Felix is

disabled for purposes of the Rehabilitation Act or that WisDOT

receives federal financial assistance and is therefore subject to

the Act’s provisions. The parties do dispute whether Felix was

otherwise qualified for continued employment following the

April 18th incident and whether she was discharged solely

because of her disabilities.

As they were below, the parties are at odds as to the

particular legal criteria and burdens that govern their dispute.

We have just noted that Felix bears the burden under the

Rehabilitation Act to show that, notwithstanding her disabili

‐

ties, she was otherwise qualified to perform the essential

functions of her job. WisDOT contends that in view of our

decision in Palmer

, Felix cannot make that showing. Palmer

held that when an employee engages in behavior that is

unacceptable in the workplace (there, making phone calls to

her office threatening her supervisor with bodily harm), the

fact that the behavior is precipitated by her mental illness16 No. 15

‐ 2047

“does not present an issue under the Americans with Disabili

‐

ties Act”; the behavior itself disqualifies her from continued

employment and justifies her discharge. 117 F.3d at 352.

The Act does not require an employer to retain

a potentially violent employee. Such a require

‐

ment would place the employer on a razor’s

edge—in jeopardy of violating the Act if it fired

such an employee, yet in jeopardy of being

deemed negligent if it retained him and he hurt

someone. The Act protects only “qualified”

employees, that is, employees qualified to do the

job for which they were hired; and threatening

other employees disqualifies one.

Id. (collecting cases); see also Pernice v. City of Chicago

, 237 F.3d

783, 785 (7th Cir. 2001); Sullivan v. River Valley Sch. Dist.

,

197 F.3d 804, 813 (7th Cir. 1999); Duncan v. Wis. Dep’t of Health

& Family Servs.

, 166 F.3d 930, 935 (7th Cir. 1999). Palmer was an

ADA case, but the Rehabilitation Act incorporates the stan

‐

dards applicable to Title I of the ADA concerning employment,

see 29 U.S.C. § 794(d); Brumfield

, 735 F.3d at 630, and we have

applied Palmer ’s approach to Rehabilitation Act claims. See

Brumfield

, 735 F.3d at 630

‐ 31. There is no dispute as to what

Felix did and how she behaved during the April 18th incident;

and although Felix does not concede that her behavior would

have justified her immediate discharge, neither does she

contend that the Rehabilitation Act required WisDOT to accept

that behavior. Cf. Mayo v. PCC Structurals, Inc.

, 795 F.3d 941,

944 (9th Cir. 2015) (“An essential function of almost every job

is the ability to handle stress and interact with others.”);

Williams v. Motorola, Inc.

, 303 F.3d 1284, 1290 (11th Cir. 2002)No. 15

‐ 2047 17

(“An employee’s ability to handle reasonably necessary stress

and work reasonably well with others are essential functions

of any position.”). In WisDOT’s view, she was thus unfit for

continued employment.

Rather than moving immediately to fire Felix after April 18,

however, WisDOT required that she undergo a professional

assessment to determine whether she continued to pose a risk

to herself and/or others in her workplace; and in Felix’s view,

that takes this case out of the Palmer qualified

‐ to

‐ work frame

‐

work and into the direct

‐ threat framework. The direct

‐ threat

defense is set forth in the ADA and is among the legal princi

‐ ples that are incorporated into the Rehabilitation Act. See

Branham

, 392 F.3d at 905

‐ 06. The ADA explicitly recognizes as

a defense to a charge that the plaintiff has been denied employ

‐

ment as a result of qualification standards that “screen out or

tend to screen out” individuals with disabilities, the assertion

that such standards are “job

‐ related and consistent with

business necessity” and that performance of the job cannot be

satisfied through a reasonable accommodation. 42 U.S.C.

§ 12113(a). “Qualification standards” are defined to include a

requirement that an individual “shall not pose a direct threat

to the health or safety of other individuals in the workplace.”

§ 12113(b). 5 A “direct threat” is in turn defined by regulation

to ”mean[] a significant risk of substantial harm to the health

5 The direct

‐ threat defense derives from the Supreme Court’s decision in

Sch. Bd. of Nassau Cnty., Fla. v. Arline

, 480 U.S. 273, 107 S. Ct. 1123 (1987),

which, inter alia

, construed the Rehabilitation Act not to require the hiring

of a person who poses a “significant risk of communicating an infectious

disease to others.” Bragdon v. Abbott

, 524 U.S. 624, 649, 118 S. Ct. 2196, 2210

(1998) (quoting Arline

, 480 U.S. at 287 n.16, 107 S. Ct. at 1131 n.16).18 No. 15

‐ 2047

or safety of the individual or others that cannot be eliminated

or reduced by reasonable accommodation.” 29 C.F.R. §

1630.2(r) (emphasis supplied); see also id. § 1630.15(b)(2). The

regulatory definition thus broadens the concept of direct threat

to include individuals who pose a risk of harm to themselves

instead of or in addition to others in the workplace. See

Branham

, 392 F.3d at 905

‐ 06. The defense requires an individu

‐

alized assessment, based on reasonable medical judgment, of

an employee’s present ability to safely perform the essential

functions of his job. § 1630.2(r). Among the factors to be

considered are:

(1) The duration of the risk posed by the em

‐ ployee’s condition;

(2) The nature and severity of the potential harm

that might result;

(3) The likelihood that the potential harm will

occur; and

(4) The imminence of the potential harm.

Id. Because the direct

‐ threat defense is an affirmative defense,

it is the employer that bears the burden of proving the defense.

Branham

, 392 F.3d at 906 (collecting cases). Consequently, if

WisDOT’s motion for summary judgment were grounded in

the direct

‐ threat defense, as Felix insists it was, WisDOT would

have had to do more than simplify identify evidence support

‐ ing the defense; it would have had to demonstrate that the

evidence was so one

‐ sided that no reasonable jury could

resolve the defense in Felix’s favor. Id. at 907; see also

, e.g.

, HotelNo. 15

‐ 2047 19

71 Mezz Lender LLC v. Nat’l Retirement Fund

, 778 F.3d 593, 601

(7th Cir. 2015).

The district court, however, did not evaluate WisDOT’s

summary judgment motion through the lens of the direct

‐

threat framework, and Felix contends that this amounted to

legal error. She reasons that whenever an employer has

decided to have an employee professionally evaluated to

assess what risk, if any, she poses to herself or to her co

‐

workers, the employer is necessarily focusing on the future

rather than on anything the employee may have done in the

past. In Felix’s view, any forward

‐ looking assessment of the

risk posed by continued employment of the plaintiff necessar

‐ ily invokes the direct

‐ threat framework. She points out that

WisDOT’s own memorandum in support of its request for

summary judgment spoke of the risk that WisDOT believed

she posed to herself and others, and her counsel surmised from

those references that WisDOT necessarily was presenting a

direct

‐ threat defense. Not until its reply brief, after Felix had

emphasized the substantial burden that the direct

‐ threat

defense imposes on the employer, did WisDOT disavow that

defense and insist that it was relying on Palmer ’s qualified

‐ to

‐

work framework instead. This was too late in the day for a

switch in legal theory, Felix argues, and effectively deprived

her of the opportunity to respond to WisDOT’s belated

invocation of Palmer

.

We will give Felix this: There necessarily is some logical

overlap between the direct

‐ threat framework and Palmer

, and

by deciding to assess what, if any, danger Felix posed in the

wake of the April 18th incident, WisDOT was, in part, making

the sort of forward

‐ looking assessment that underlies a direct

‐20 No. 15

‐ 2047

threat affirmative defense. Even so, we do not agree with Felix

that WisDOT was pursuing such a defense or that the district

court erred in not applying the direct

‐ threat framework to

WisDOT’s motion for summary judgment.

WisDOT’s motion itself did not invoke the direct

‐ threat

framework. Its opening memorandum did not cite the defense

by name or by reference to its statutory and regulatory

provisions. By contrast, the memorandum did reference Palmer

in support of an argument that after the April 18th incident,

Felix was no longer a qualified person with a disability for

purposes of her Rehabilitation Act claim. R. 26 at 16

‐ 19. Felix

nonetheless infers that WisDOT was making a direct

‐ threat

type of argument because the memorandum repeatedly

referred to Burbach’s IME and, in light of the results of that

IME, argued that Felix’s superiors could legitimately conclude

that “Felix was a safety risk to herself and others in the

workplace.” R. 26 at 17.

The fact that WisDOT chose to have Felix evaluated for

ongoing risk rather than making its discharge decision solely

on the basis of the April 18th incident did not inevitably place

this case within the direct

‐ threat framework. It should go

without saying that when a disruptive incident like the April

18th episode has occurred, an employer may seek a profes

‐

sional assessment of the likelihood of an employee’s unaccept

‐

able behavior recurring before it decides, within the Palmer

framework, whether the employee is qualified for continued

employment. It may be possible, for example, that an em

‐ ployee’s behavior is explained by an adverse reaction to a

particular medication and can be prevented from recurring by

switching to a different medication or dosage. Insisting that anNo. 15

‐ 2047 21

employer make an immediate decision to fire an employee

based on his unacceptable conduct in order to invoke

Palmer —without the benefit of a professional opinion as to

whether this likely was a one

‐ time incident or something that

was bound to recur—would serve neither employer nor

employee. Hasty and reactive employment decisions are the

last thing the Rehabilitation Act or the ADA were meant to

encourage. Moreover, although WisDOT delayed making a

decision until Burbach evaluated Felix, it did not permit Felix

to resume her duties while it pondered her fate. She was

placed on FMLA leave immediately, and she remained on

leave while WisDOT solicited both the IME and information

from her own physicians. By Felix’s own account, she was

unable to work during this period of time. See R. 29 ¶ 82.

WisDOT’s course of action consequently does not undermine

the notion that it viewed Felix’s behavior during the April 18th

episode as potentially disqualifying. By contrast, the employer

in Wright v. Ill. Dep’t of Children & Family Servs.

, 798 F.3d 513,

526 (7th Cir. 2015), permitted the plaintiff caseworker to

continue working with children after the behavior in question

occurred, which was wholly inconsistent with the employer’s

professed concern that the plaintiff’s behavior might pose an

unacceptable risk to those children.

As a number of courts have recognized, when an em

‐ ployee’s disability has actually resulted in conduct that is

intolerable in the workplace, the direct

‐ threat defense does not

apply: the case is no longer about potential but rather actual

dangers that an employee’s disability poses to herself and

others. See Mayo

, 795 F.3d at 945; Sista v. CDC Ixis N.A., Inc.

,

445 F.3d 161, 170

‐ 71 (2d Cir. 2006); Sper v. Judson Care Ctr., Inc.

,22 No. 15

‐ 2047

29 F. Supp. 3d 1102, 1112

‐ 13 (S.D. Oh. 2014). Put another way,

what is at issue once an employee has engaged in threatening

behavior is not the employer’s qualification standards and

selection criteria and whether they tend to screen out people

with disabilities, see 42 U.S.C. § 12113(a), but whether the

employer must tolerate threatening (and unacceptable)

behavior because it results from the employee’s disability.

Palmer answers no: the employee is no longer “otherwise

qualified” to perform the job. 117 F.3d at 352. The Second

Circuit reaches essentially the same conclusion by means of a

slightly different route. Once an employee’s disability has

manifested in threatening conduct, that court views the

question as one of disparate treatment: if the employer has

terminated a disabled employee because of the danger her

conduct poses to herself or others, then the question is simply

whether it would have taken the same disciplinary action

against a non

‐ disabled employee. Sista

, 445 F.3d at 171. In other

words, the Second Circuit sees the employee’s conduct as

affecting not whether she is “otherwise qualified” to perform

the job, as we did in Palmer

, but rather whether her employer

had a legitimate, non

‐ discriminatory reason to fire her. Id. at

171

‐ 72. Under either approach, however, the direct

‐ threat

defense and its evaluation of prospective dangers no longer

has any role to play. As Sista explains:

Under these circumstances, no “individualized

assessment,” see 29 C.F.R. § 1630.2(r) is neces

‐

sary, because the employee is not being termi

‐

nated for posing a “ direct threat ” as defined by

the ADA, but rather for making a threat—a

legitimate, non

‐ discriminatory reason forNo. 15

‐ 2047 23

termination—in accordance with the standard

McDonnell Douglas analysis. Moreover, rules

established by the EEOC make clear that the

“poses a direct threat defense” is meant to be

applied in cases alleging discriminatory applica

‐

tion of qualification standards as opposed to

cases in which a plaintiff alleges “disparate

treatment,” which may be “justified by a legiti

‐

mate, non

‐ discriminatory reason.” 29 C.F.R. §

1630.15(a), (b). Here, Sista does not claim that

[the employer’s] policies against employee

misconduct and threats in the workplace consti

‐

tute “qualification standards, tests, or criteria”

that “screen out or tend to screen out” individu

‐

als with disabilities; rather, the gravamen of

Sista’s claim is that he suffered disparate treat

‐

ment at the hands of [his employer] when he

was fired for being disabled. Accordingly, the

“poses a direct threat” defense has no applicabil

‐ ity in this case.

445 F.3d at 171 (emphasis in original). Just so here. The dispute

in this case is not over qualification standards and selection

criteria. No one, including Felix, is affirmatively suggesting

that her behavior during the April 18th episode is behavior

that WisDOT might have to tolerate lest it inappropriately

screen out disabled individuals from its employ. Felix, in the

end, is contending based on a variety of factors (including

WisDOT’s decision to have her undergo a fitness for duty

examination rather than discharging her immediately), that

WisDOT was not in fact relying on her conduct when it24 No. 15

‐ 2047

discharged her but instead was animated solely by her

disability. That is a perfectly appropriate and logical theory of

the case for Felix to pursue. But as the Second Circuit ex

‐ plained in Sista

, it presents a straightforward claim of disparate

treatment attended by the usual evidentiary burdens. It is not

a claim that requires her employer to shoulder the burdens

imposed by the direct

‐ threat framework.

Our decision in Bodenstab v. Cnty. of Cook

, 569 F.3d 651, 658

‐

59 (7th Cir. 2009), concluded that the plaintiff’s unacceptable

behavior (there, threatening to take the lives of his supervisor

and other co

‐ workers if he received bad news on whether his

cancer had metastasized) justified his employer’s decision to

discharge him, wholly apart from its assessment of whether he

presented a direct threat to the safety of himself and others in

the event he were allowed to return to work. In discharging the

plaintiff, the employer had relied on both the threats he had

made as well as a psychiatric assessment concluding that his

mental condition posed a continuing threat to himself and

others. The plaintiff argued that the evidence did not support

the latter assessment. We concluded that it was unnecessary to

reach that argument, as the threats the plaintiff had already

made (or the employer reasonably believed he had made—the

plaintiff disputed the details) by themselves warranted his

discharge. Id.

The same rationale arguably might apply here, given that

WisDOT specifically cited the events of April 18 as one of its

reasons for discharging Felix, but we need not go that far. We

may regard Felix’s behavior on April 18 and the IME’s conclu

‐

sion that she continued to pose a risk to herself and others as

inextricably intertwined rather than as wholly independentNo. 15

‐ 2047 25

reasons for WisDOT’s decision to discharge Felix. For the

reasons we have already discussed, WisDOT may still argue

that its decision to discharge Felix was warranted under

Palmer

. And for the reasons that follow, there is no dispute of

material fact that WisDOT, consistent with Palmer

, regarded

Felix as unfit for continued employment after April 18.

WisDOT’s actions following the April 18th incident are

consistent with a genuine concern about the danger that Felix’s

conduct presented to herself and others. Prior to that episode,

WisDOT had accommodated Felix’s anxiety disorder by

allowing her the time to compose herself in the restroom when

she felt an anxiety attack coming on, for example. Never before

April 18, however, had Felix’s disorder manifested in suicidal

gestures or publicly disruptive behavior as it did on April 18.

WisDOT immediately placed Felix on medical leave (which is

exactly what she herself requested in the aftermath of the

incident), directed that she submit to an independent medical

examination, asked that she submit information from her own

treating professionals, and, after reviewing the IME and the

information from Felix’s providers, concluded that she

continued to present a threat to her own safety and that of

others and therefore should be discharged.

The discharge letter itself cites the April 18th incident along

with the IME as grounds for the termination decision. In

essence, the letter reflects WisDOT’s conclusion that, in view

of the IME, WisDOT could not be sure that behavior akin to

what had occurred on April 18 would not repeat in the future.

Although Felix does not concede that the reasons articu

‐

lated by WisDOT on their face constitute a legitimate basis for26 No. 15

‐ 2047

her discharge under Palmer

, we are satisfied that they do.

Felix’s behavior on April 18 suggested that she was a danger

to herself: she had attempted to cut her wrists, although the

cuts were shallow; she vocally bemoaned the dullness of the

knife she had used; and she repeatedly said that she wanted to

die. She made these and other remarks in a hysterical state,

literally kicking her legs and crying out, and she did so in a

public area of the office. Emergency personnel were sum

‐

moned.

Felix submitted a statement from her psychiatrist indicating

that she was fit to return to work as of the date she was

discharged; but we do not regard this as sufficient to establish

a dispute of fact as to the legitimacy or sincerity of WisDOT’s

stated reasons for terminating her. Dr. Beld had given conflict

‐ ing statements as to when Felix could return to work, and

beyond asking that Felix be allowed to return to work on July

15, 2013, on a full

‐ time schedule, Beld offered no more than an

abbreviated summary of Felix’s condition and course of

treatment and no real explanation for his conclusion that she

was able to return to work, especially given his acknowledg

‐

ment that her work environment tended to worsen her anxiety

‐

and depression

‐ related conditions. His comments on the form

submitted in support of Felix’s FMLA leave acknowledged that

Felix’s current work environment aggravated her condition.

Likewise, the other medical records Felix submitted to her

employer offered no assessment of her current status and no

analysis of why, notwithstanding what had occurred on April

18, Felix could resume her duties. Finally, whatever shortcom

‐ ings there may have been in Burbach’s IME, Felix has cited no

evidence suggesting that WisDOT could not and did not creditNo. 15

‐ 2047 27

his opinion and conclude that Felix remained in danger of

repeating the type of behavior that she had exhibited on April

18. 6 The question, after all, is not whether Dr. Burbach’s

opinion was correct or whether WisDOT was right or wrong to

accept his assessment, but whether it did, in fact, rely on his

assessment and honestly conclude that Felix’s behavior, and

the risk of it recurring, warranted her discharge. See

, e.g.

, Magnus v. St. Mark United Methodist Church

, 688 F.3d 331, 338

(7th Cir. 2012).

Felix argues that several facts betray a bias against persons

with anxiety disorders, and that a factfinder could thus

conclude that WisDOT’s decision to fire her was based solely

on her disabilities. She argues, for example, that notes from a

June 25 meeting between English and Maya Rudd, WisDOT’s

affirmative action/equal employment opportunity and diver

‐ sity program officer, reflecting a decision to proceed with a

“medical separation

... [b]ased on IME comments and recom

‐

mendations,” necessarily indicate that WisDOT was discharg

‐ ing her based on her disability rather than her conduct. In

Felix’s view, “[c]haracterizing an employee’s termination as a

‘medical separation’ is the definition of terminating an em

‐ ployee because of her disabilities.” Felix Reply Br. 3. But

“medical” is not a term inherently suggestive of bias or

disapproval. And given that Palmer and similar cases recognize

that an employer may, consistent with the ADA and the

6 Burbach’s observation that WisDOT might choose to have Felix undergo

a second fitness

‐ for

‐ duty evaluation at a later date does not alter the

calculus. Burbach simply noted that as an option, without qualifying his

opinion that Felix was not fit for duty as of the date of his evaluation.28 No. 15

‐ 2047

Rehabilitation Act, terminate an employee for inappropriate

behavior even when that behavior is precipitated by the

employee’s disability, see Brumfield

, 735 F.3d at 631, it is by no

means surprising nor damning that an employer might refer to

the employee’s disability or to medical opinion in articulating

its reasons for the discharge. 7 Felix also highlight’s English’s

repeated use of the term “risk” when speaking to Beld, and his

conclusion that her tone and attitude were redolent of fear and

prejudice regarding Felix’s condition. (She criticizes the district

court itself for using the term “risk.”) But we do not think that

the use of the term “risk” is problematic; our own cases use

that very term and ones similar to it in addressing disability

‐

related conduct that may pose a danger to one’s self or one’s

co

‐ workers. E.g.

, Branham

, 392 F.3d at 908 (risk of harm);

Palmer

, 117 F.3d at 352 (jeopardy); Knapp v. Nw. Univ.

, 101 F.3d

473, 483 (7th Cir. 1996) (risk of injury). And Beld’s perception

of English’s tone and attitude is, on this record, no more than

his unsubstantiated opinion. Other than English’s use of the

term “risk,” there is nothing to objectively support the notion

that she was acting out of prejudice rather than a legitimate

concern for Felix’s safety and the safety of others in her

workplace. Finally, Felix suggests that WisDOT’s purported

pursuit and then abandonment of a direct

‐ threat defense

represents the sort of shift in rationale for an employer’s

conduct that would support a finding of pretext. See Zaccagnini

v. Chas. Levy Circulating Co.

, 338 F.3d 672, 677

‐ 78 (7th Cir. 2003)

7 The same may be said of WisDOT’s reliance upon Wis. Stat. § 230.37(2)

in ordering Felix to participate in a fitness

‐ for

‐ duty evaluation and in

concluding that, in light of that evaluation, she could not safely, efficiently,

and effectively resume her duties. See n.2, supra

.No. 15

‐ 2047 29

(collecting cases). But, as we have discussed, WisDOT did not

change its rationale. It has consistently represented that Felix’s

unacceptable behavior on April 18, coupled with the IME’s

conclusion that she remained at risk of repeating such behav

‐

ior, rendered her unqualified to remain in her position.

III.

For all of the reasons we have discussed, we AFFIRM the

district court’s decision to enter summary judgment against

Felix and in favor of WisDOT.