PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT 

KELLY OSBORNE, 

 Plaintiff - Appellant/CrossAppellee, 

v. 

BAXTER HEALTHCARE 

CORPORATION, d/b/a BioLife Plasma 

Services, L.P., 

Defendant - Appellee/CrossAppellant. 

Nos. 14-8047, 14-8052 

 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF WYOMING 

(D.C. No. 2:13-CV-00139-SWS) 

 

Dale A. Gaar, Denver, Colorado (Stephen H. Kline and Melinda S. McCorkle, Kline Law 

Office, PC, Cheyenne, Wyoming, with him on the briefs), appearing for PlaintiffAppellant/Cross-Appellee. 

Bradley T. Cave, P.C., Holland & Hart LLP, Cheyenne, Wyoming, appearing for 

Defendant-Appellee/Cross-Appellant. 

 

Before HARTZ, HOLMES, and MATHESON, Circuit Judges. 

 

MATHESON, Circuit Judge. 

 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 24, 2015

Elisabeth A. Shumaker 

Clerk of Court

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 Kelly Osborne, who is deaf, applied to work as a plasma center technician 

(“PCT”) at BioLife Plasma Services.1

 After two interviews, Ms. Osborne was 

conditionally offered the PCT position pending final tests and paperwork. When 

BioLife’s human resources department received Ms. Osborne’s medical information, it 

determined Ms. Osborne could not safely monitor the donor area of the facility because 

she could not hear the alarms on the plasmapheresis machines,2

 which audibly sound 

when something goes wrong or requires attention. When Ms. Osborne reported to the 

facility for her first day of work, Joe Elder, the manager, informed her BioLife had 

rescinded her offer of employment. 

Ms. Osborne filed a lawsuit alleging that BioLife’s revocation of her job offer 

violated the Americans with Disabilities Act (“ADA”). The district court determined Ms. 

Osborne failed to identify accommodations that would allow her to perform essential 

functions of the PCT position. The court granted summary judgment to BioLife and 

instructed each party to bear its own costs. 

 1

 Baxter Healthcare Corporation does business in Wyoming as BioLife Plasma 

Services, L.P. Like the parties, we refer to the appellee as “BioLife.” 

2

 The plasmapheresis machines, or “Auto C” machines, remove blood from a 

donor, separate the plasma, and return the red blood cells to the donor. See Aplt. App. at 

28-29. 

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Both parties appeal. Ms. Osborne appeals the district court’s grant of summary 

judgment to BioLife. BioLife cross-appeals, seeking reversal of the district court’s 

determination that each party should bear its own costs. 

We conclude Ms. Osborne has identified a genuine dispute of material fact 

regarding her ability to perform essential functions of the PCT position with reasonable 

accommodation, making summary judgment premature. Exercising jurisdiction under 28 

U.S.C. § 1291, we reverse the district court’s grant of summary judgment for BioLife and 

deem BioLife’s cross-appeal for costs moot. 

I. BACKGROUND 

A. Factual History 

In 2007, BioLife replaced three positions—medical historian, phlebotomist, and 

sample prep technician—in its workforce with a single PCT position, which performed 

three primary functions: (1) taking donors’ medical history, (2) monitoring the area 

where donors give plasma to watch for adverse reactions, and (3) working in the sample 

preparation area where donated plasma is processed and stored. In late 2007, BioLife 

formalized a position description for the PCT position. Employees in one of the prior 

positions were given one year to train into the PCT position, and all entry-level 

employees hired by BioLife after January 2008 were hired as PCTs. 

In August 2008, Ms. Osborne applied to work as a PCT at BioLife’s facility in 

Cheyenne, Wyoming. Mr. Elder initially interviewed Ms. Osborne. She subsequently 

met with BioLife’s supervisory staff. In both instances, Ms. Osborne made clear she is 

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deaf and communicates primarily through lip reading. Mr. Elder made Ms. Osborne a 

conditional offer of employment contingent upon a background check, a drug test, and a 

medical screening. 

After receiving Ms. Osborne’s medical paperwork, BioLife’s human resources 

department—which is based in Illinois—determined she could not safely monitor the 

donor area of the facility because she could not hear the audible alarms on the 

plasmapheresis machines, which sound when something goes wrong or needs attention. 

When Ms. Osborne reported to work in September 2008, Mr. Elder informed her that, 

because of safety issues, BioLife had rescinded her offer of employment.3

 Ms. Osborne 

contacted BioLife, and Melissa Grabiner, a Staffing Manager, explained in an email that 

BioLife could not hire her as a PCT because she would be unable to hear audible alarms 

on the plasmapheresis machines and could not safely monitor donors.4

 3

 In her deposition, Ms. Osborne stated Mr. Elder identified safety concerns 

related to the plasmapheresis machine as the reason for rescinding the offer of 

employment: “Q: Did he discuss with you why he did not think you could do the 

phlebotomist job? A: He was—I think it was a safety reason because I couldn’t hear the 

monitors.” Aplt. App. at 151. 

4

 BioLife initially justified withdrawing Ms. Osborne’s job offer by noting she 

could not perform two essential functions: (1) hearing the audible alert or alarm from the 

plasmapheresis machine, and (2) perceiving a donor’s need for attention when her back 

was to the donor. See Aplt. App. at 328-30, 421. After litigation began, BioLife 

identified two additional essential functions: (3) verbally communicating with donors, 

and (4) responding to donor reactions. In their briefs, the parties refer to “donor 

monitoring” as an essential function of the PCT position, which we understand to include 

both perceiving and responding to adverse reactions. 

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B. Procedural History 

Ms. Osborne filed a lawsuit alleging that BioLife’s revocation of her job offer 

violated the ADA. She proposed four accommodations to allow her to perform the 

essential functions of a PCT: (1) job restructuring, (2) enhanced alerts on the 

plasmapheresis machines, (3) paging or call button systems for donors, and (4) a hearing 

oral interpreter.5

 BioLife moved for summary judgment, arguing Ms. Osborne could not 

perform the essential functions of a PCT with or without reasonable accommodation and 

was not entitled to relief under the ADA. 

On May 30, 2014, the district court issued an oral ruling granting BioLife’s 

motion for summary judgment. The court concluded Ms. Osborne had not carried her 

burden of showing she could perform the essential functions of the PCT job with or 

without reasonable accommodation. The court granted summary judgment to BioLife 

and instructed each party to bear their own costs. 

II. DISCUSSION 

Ms. Osborne appeals the district court’s summary judgment order, and BioLife 

cross-appeals the district court’s decision on costs. As we detail below, we believe there 

are material disputes of fact as to whether Ms. Osborne’s proposed accommodations are 

 5

 On appeal, Ms. Osborne argues (1) job restructuring, (2) visual or vibrating alerts 

on the plasmapheresis machines, and (3) call buttons for donors are reasonable 

accommodations. She does not challenge the district court’s determination that providing 

a hearing oral interpreter is not a reasonable accommodation because employers are not 

required to reassign or hire employees to perform functions of a disabled employee’s job. 

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reasonable, and conclude that summary judgment is therefore inappropriate at this stage 

in the litigation. We reverse the district court’s summary judgment order and remand for 

further proceedings. On the basis of this determination, we deem BioLife’s cross-appeal 

for costs moot. 

A. Summary Judgment 

Ms. Osborne argues reasonable accommodations would allow her to perform the 

essential functions of perceiving the alarms on the plasmapheresis machines and 

engaging in donor monitoring. To determine whether summary judgment is appropriate, 

we (1) identify the applicable standard of review, (2) discuss relevant legal standards that 

narrow the issues before us on appeal, (3) review the district court’s determinations, 

(4) consider each of Ms. Osborne’s proposed accommodations in turn, and (5) address a 

remaining concern BioLife has raised regarding essential functions of the PCT position. 

1. Standard of Review 

On appeal, “[w]e review summary judgment determinations de novo, applying the 

same standard as the district court.” Smothers v. Solvay Chems., Inc., 740 F.3d 530, 538 

(10th Cir. 2014). We view the facts in the light most favorable to the non-moving party 

and draw all reasonable inferences in his or her favor. Id. Summary judgment is 

appropriate “if the movant shows that there is no genuine dispute as to any material fact 

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In this 

inquiry, “[t]he nonmovant is given wide berth to prove a factual controversy exists.” 

Davidson v. Am. Online, Inc., 337 F.3d 1179, 1182 (10th Cir. 2003) (quotations omitted). 

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2. Legal Background 

We evaluate BioLife’s decision to rescind Ms. Osborne’s job offer using ADA 

law. Our analysis is guided by: (1) the elements of a prima facie case of discrimination 

under the ADA, (2) the burden-shifting framework used to determine whether an 

accommodation is reasonable, and (3) the criteria used to determine whether health and 

safety concerns render an employee unqualified to perform the essential functions of a 

position. Before turning to the merits of Ms. Osborne’s claims, we review these legal 

standards in turn. 

a. Prima facie case of discrimination under the ADA 

The ADA prohibits employers from discriminating against “a qualified individual 

on the basis of disability.” 42 U.S.C. § 12112(a).6

 “To establish a prima facie case of 

discrimination under the ADA, an employee must show: (1) she is disabled within the 

meaning of the ADA; (2) she is qualified, with or without reasonable accommodation, to 

perform the essential functions of the job held or desired; and (3) she was discriminated 

against because of her disability.” Mason v. Avaya Commc’ns, Inc., 357 F.3d 1114, 1118 

 6

 The burden-shifting framework described in McDonnell Douglas Corp. v. Green, 

411 U.S. 792 (1973), does not apply in this case. “If the employer admits that the 

disability played a prominent part in the decision, or the plaintiff has other direct 

evidence of discrimination based on disability, the burden-shifting framework may be 

unnecessary and inappropriate.” Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 n.3 (10th 

Cir. 1997). BioLife indisputably rescinded Ms. Osborne’s job offer because of her 

disability. We therefore ask instead whether Ms. Osborne has established the three 

elements of a prima facie case of discrimination under the ADA. Davidson, 337 F.3d at 

1189. 

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(10th Cir. 2004). Establishing a prima facie case is “not onerous,” Hawkins v. Schwan’s 

Home Serv., Inc., 778 F.3d 877, 883 (10th Cir. 2015) (quoting Plotke v. White, 405 F.3d 

1092, 1099 (10th Cir. 2005)), and “summary adjudication may be improper when the 

employee has presented evidence she could perform the essential functions of her 

position” with the aid of an accommodation, Mason, 357 F.3d at 1124. 

The parties agree Ms. Osborne’s deafness constitutes a disability for purposes of 

the ADA, and agree that she satisfies the first element of the prima facie test insofar as 

she cannot hear the audible alert on the plasmapheresis machine or verbal requests from 

donors.7

 The parties also do not dispute that BioLife rescinded Ms. Osborne’s job offer 

specifically because she is deaf, which constitutes discrimination on the basis of 

disability. See 42 U.S.C. § 12112(a) (prohibiting discrimination against qualified 

individuals in job application procedures and hiring). 

But the parties disagree whether Ms. Osborne satisfied the second element of the 

prima facie test. For this element, courts use a two-step inquiry to determine whether a 

plaintiff is qualified, with or without reasonable accommodation, to perform the essential 

functions of the job held or desired: 

First, the court determines whether the individual can perform the essential 

functions of the job. Second, if (but only if) the court concludes that the 

 7

 The district court based its ruling only on the essential functions of hearing the 

plasmapheresis machines and monitoring donors. It did not address the essential function 

of verbal communication. The parties do dispute whether Ms. Osborne satisfies the first 

element of the prima facie test with regard to the essential function of verbal 

communication, and we address this issue below. See infra Section II.A.5. 

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individual is unable to perform the essential functions of the job, the court 

determines whether any reasonable accommodation by the employer would 

enable [her] to perform those functions. 

Davidson, 337 F.3d at 1190 (citation omitted); see also 42 U.S.C. § 12111(8) (defining 

the phrase “qualified individual”). Throughout this inquiry, “[t]he plaintiff bears the 

burden of showing she is able to perform the essential functions of her job.” Mason, 357 

F.3d at 1119; see US Airways v. Barnett, 535 U.S. 391, 400 (2002). Our analysis here is 

limited to the second step—whether reasonable accommodations would enable Ms. 

Osborne to perform the essential functions of the PCT position. 

b. Using burden shifting at summary judgment to determine whether the plaintiff 

is qualified with reasonable accommodations 

“Whether an accommodation is reasonable under the ADA is a mixed question of 

law and fact.” Mason, 357 F.3d at 1122. When an employer moves for summary 

judgment in an ADA suit, courts use a burden-shifting framework to decide this issue. 

White v. York Int’l Corp., 45 F.3d 357, 361 (10th Cir. 1995). 

First, the employee “need only show that an ‘accommodation’ seems reasonable 

on its face, i.e., ordinarily or in the run of cases.” Barnett, 535 U.S. at 401. A proposed 

accommodation is not reasonable on its face if it would not enable the employee to 

perform the essential function at issue. See 29 C.F.R. § 1630.2(o)(1)(ii) (defining 

“reasonable accommodations” to include those “that enable an individual with a 

disability who is qualified to perform the essential functions of that position”); Hennagir 

v. Utah Dep’t of Corr., 587 F.3d 1255, 1264 (10th Cir. 2009) (deeming proposed 

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accommodations unreasonable because they would not enable the plaintiff to perform the 

essential functions of a position).8

 

Second, if the employee presents a facially reasonable accommodation, “[t]he 

burden of production then shifts to the employer to present evidence of its inability to 

accommodate.” Mason, 357 F.3d at 1122; White, 45 F.3d at 361. The employer “must 

show special (typically case-specific) circumstances that demonstrate undue hardship in 

the particular circumstances.” Barnett, 535 U.S. at 402.9

 

Third, “[i]f the employer presents such evidence, the employee has the burden of 

coming forward with evidence concerning her individual capabilities and suggestions for 

 8

 As we discuss below, where essential functions of a position implicate health and 

safety, an accommodation is also facially unreasonable when it is unable to eliminate a 

significant risk to health and safety. See infra Section II.A.2.iii. 

9

 The ADA specifies considerations to guide the undue hardship inquiry: 

In determining whether an accommodation would impose an undue 

hardship on a covered entity, factors to be considered include—(i) the 

nature and cost of the accommodation needed under this chapter; (ii) the 

overall financial resources of the facility or facilities involved in the 

provision of the reasonable accommodation; the number of persons 

employed at such facility; the effect on expenses and resources, or the 

impact otherwise of such accommodation upon the operation of the facility; 

(iii) the overall financial resources of the covered entity; the overall size of 

the business of a covered entity with respect to the number of its 

employees; the number, type, and location of its facilities; and (iv) the type 

of operation or operations of the covered entity, including the composition, 

structure, and functions of the workforce of such entity; the geographic 

separateness, administrative, or fiscal relationship of the facility or facilities 

in question to the covered entity. 

42 U.S.C. § 12111(10)(B). 

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possible accommodations to rebut the employer’s evidence.” Mason, 357 F.3d at 1122. 

“As with discrimination cases generally, the plaintiff at all times bears the ultimate 

burden of persuading the trier of fact that he has been the victim of illegal discrimination 

based on his disability.” White, 45 F.3d at 361; see also Hawkins, 778 F.3d at 894. 

We discuss below whether the district court correctly allocated and considered 

these burdens when evaluating Ms. Osborne’s proposed accommodations. 

c. Evaluating health and safety concerns with the direct threat criteria 

This case implicates an additional legal standard in the ADA known as “direct 

threat.” In its motion for summary judgment, BioLife argued that if Ms. Osborne would 

pose any risk to health and safety—however small—she is unqualified to perform the 

essential functions of the PCT position. BioLife’s argument misstates the law because 

we apply the “direct threat” standard to determine whether an employee, with or without 

accommodation, is a significant risk to health and safety and therefore unqualified for a 

position. Here we describe this standard and how courts have used it to assess the second 

element of a prima facie case under the ADA. 

The ADA defines a “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).10 

 10 The assertion that an employee would pose a direct threat to the health and 

safety of others also can function as an affirmative defense under the ADA. See 42 

U.S.C. § 12113(a)-(b); Borgialli v. Thunder Basin Coal Co., 235 F.3d 1284, 1290 (10th 

Cir. 2000) (“Under the ADA it is a defense to a charge of discrimination if an employee 

poses a direct threat to the health or safety of himself or others.”). As we discuss below, 

Continued . . . 

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The EEOC’s direct threat regulation identifies four criteria courts may consider when 

determining whether an individual would pose a direct threat: “(1) [t]he duration of the 

risk; (2) [t]he nature and severity of the potential harm; (3) [t]he likelihood that the 

potential harm will occur; and (4) [t]he imminence of the potential harm.” 29 C.F.R. 

§ 1630.2(r). 

When the “direct threat” standard is applied in the ADA’s summary judgment 

burden-shifting framework described above, a plaintiff must initially demonstrate that her 

performing essential functions with a proposed accommodation would not significantly 

threaten the health and safety of others, McKenzie v. Benton, 388 F.3d 1342, 1354 (10th 

Cir. 2004); otherwise the accommodation would not be “reasonable on its face,” Barnett, 

535 U.S. at 402. Because the “direct threat” standard applies in this context, BioLife’s 

argument—that any de minimis risk makes an accommodation unreasonable—fails. 

In School Board of Nassau County v. Arline, 480 U.S. 273, 287-88 (1987), the 

Supreme Court determined whether an employee was “otherwise qualified” under the 

Rehabilitation Act by applying to health and safety concerns the same criteria the EEOC 

subsequently codified in its direct threat regulation. See Bragdon v. Abbott, 524 U.S. 

624, 649 (1998) (observing that the ADA’s direct threat provision codifies Arline); 

______________________________________ 

Cont. 

the same direct threat criteria used in the affirmative defense context are relevant when 

determining whether an employee is qualified to perform the essential functions of a 

position with reasonable accommodation—the second element of a prima facie case. 

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EEOC v. Amego, Inc., 110 F.3d 135, 143 (1st Cir. 1997) (examining the relevant 

legislative history). When the essential functions of a position implicate health and 

safety, courts consider these criteria to determine whether an employee is qualified for 

purposes of the second element of the prima facie case. See Arline, 480 U.S. at 287-89; 

Jarvis v. Potter, 500 F.3d 1113, 1122 (10th Cir. 2007); Branham v. Snow, 392 F.3d 896, 

905-07 (7th Cir. 2004); McKenzie, 388 F.3d at 1354-55; Amego, 110 F.3d at 145-46. 

Applying these criteria, we have said an employer’s determination that an employee 

posed an impermissible threat to health and safety must be “objectively reasonable.” 

Jarvis, 500 F.3d at 1122-23; see also EEOC v. Beverage Distribs. Co., LLC, 780 F.3d 

1018, 1021-22 (10th Cir 2015). 

As we explain in our analysis below, the “direct threat” criteria are relevant and 

helpful in assessing whether an employee is qualified to perform the essential functions 

of a position when an issue is whether a proposed accommodation satisfies health and 

safety concerns. We note “direct threat” analysis is useful only up to the point of 

determining whether an accommodation eliminates a significant risk to others. If it does 

not, the accommodation is unreasonable. If the accommodation does eliminate a 

significant risk, further analysis may be required to determine whether it enables a 

disabled individual to perform the essential functions of the position and is therefore 

reasonable on its face. 

* * * 

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 The following summarizes our discussion of the legal landscape applicable to this 

case. To make out a prima facie case for discrimination under the ADA, Ms. Osborne 

must show (1) she is disabled; (2) she is qualified, with or without reasonable 

accommodations, to perform the essential functions of the job; and (3) she was 

discriminated against based on her disability. Because the parties agree elements (1) and 

(3) are met and Ms. Osborne is not qualified for the PCT position in the absence of 

reasonable accommodations, the issue is whether she is qualified with reasonable 

accommodations. 

To determine this issue at summary judgment, courts employ a burden-shifting 

framework: (1) the plaintiff has the initial burden to show an accommodation is 

reasonable on its face, then (2) the defendant must show it cannot provide the 

accommodation without undue hardship, and finally (3) the plaintiff must rebut the 

employer’s evidence based on her individual capabilities. 

When the reasonableness of an accommodation turns on whether it alleviates 

health and safety concerns related to the essential functions of a position, the ADA’s 

direct threat standard—whether a significant risk can be eliminated by reasonable 

accommodations—applies to whether the plaintiff has met her initial burden to show an 

accommodation is reasonable on its face. In other words, we ask whether the plaintiff 

has shown that her proposed reasonable accommodation would eliminate significant risk. 

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3. District Court Order 

 The district court based its order granting summary judgment to BioLife on the 

second element of a prima facie case of discrimination under the ADA, which asks 

whether Ms. Osborne “is qualified, with or without reasonable accommodation, to 

perform the essential functions of the job held or desired.” Mason, 357 F.3d at 1118. 

The court determined the first step of the qualification inquiry—whether Ms. Osborne is 

equipped to perform the essential functions of the job without reasonable 

accommodation—was not in dispute. It noted “the parties agree the essential functions of 

the PCT position include monitoring the donor area for any adverse reactions to the 

plasmapheresis process.” Aplt. App. at 498. The plasmapheresis machines sound an 

alarm when something has gone wrong, and the description of the PCT position specified 

that the “ability to hear equipment sounds from a distance is required.” Id. at 108. 

Because she is deaf, Ms. Osborne cannot hear the equipment sounds or verbal requests 

for assistance, and the parties agree she could not perform the essential function of donor 

monitoring without accommodation. 

The district court then moved to the second step of the qualification inquiry. 

Applying the burden-shifting framework to consider whether any reasonable 

accommodation would enable Ms. Osborne to perform the essential functions of the PCT 

position, the court concluded Ms. Osborne failed to meet her initial burden because her 

proposed accommodations were not reasonable. The court therefore granted summary 

judgment to BioLife. Of the three proposed accommodations at issue on appeal, the 

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district court rejected (1) job restructuring because it altered the nature of the PCT 

position, (2) visual or vibrating alerts because Ms. Osborne had not shown such 

modifications were feasible, and (3) call buttons because they did not completely 

eliminate health and safety risks and they shifted the essential function of donor 

monitoring to donors themselves. 

4. Ms. Osborne’s Proposed Accommodations 

Ms. Osborne argues she demonstrated that her three proposed accommodations—

job restructuring, installing visual or vibrating alerts, and providing call buttons to 

donors—are reasonable on their face and that this should have shifted the burden of proof 

to BioLife rather than resulting in summary judgment. We agree with the district court 

that job restructuring is not a reasonable accommodation, but conclude there are genuine 

disputes of fact as to whether installing visual or vibrating alerts and providing call 

buttons to donors together would allow Ms. Osborne to perform the essential functions of 

the position, satisfying her initial burden of showing her proposed accommodations are 

facially reasonable.11 This precludes summary judgment at this stage of the litigation and 

moots the dispute over the proper allocation of costs. 

a. Job restructuring 

The first accommodation Ms. Osborne identifies was initially proposed by Mr. 

 11 Because her proposed accommodations address different essential functions, 

Ms. Osborne has argued that they should be considered in conjunction with one another. 

See Aplt. App. at 282. 

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Elder. When Ms. Osborne applied for a position with BioLife, Mr. Elder proposed 

restructuring the PCT position by having Ms. Osborne work primarily in the sample 

preparation area and less often in the phlebotomy area where monitoring donors was 

required. Mr. Elder testified that the restructuring would lessen, but not eliminate, Ms. 

Osborne’s donor monitoring duties as a PCT. BioLife, which had recently restructured 

the position so that all PCTs would assist with medical histories, donor monitoring, and 

sample preparation, subsequently insisted that Ms. Osborne must be able to perform each 

of the position’s three core tasks. 

The district court determined the proposed job restructuring was not a reasonable 

accommodation because it “fundamentally alters the nature of the PCT position . . . by 

removing or reducing Ms. Osborne’s duty to monitor donors and, in turn, increasing the 

other PCTs’ duty to monitor donors.” Aplt. App. at 500. 

Ms. Osborne disagrees with the court’s assessment. She contends the 

accommodation would not alter the nature of the PCT position, but would merely 

reallocate the time spent in the sample processing area versus the phlebotomy area where 

donor monitoring takes place.12 She suggests she would spend most of her time in the 

 12 Mr. Elder’s deposition describes BioLife’s concerns about hiring Ms. Osborne 

and details how he envisioned restructuring the PCT position for her: 

I believe—as I recall, they were concerns that we, as a management team, 

had. That—that we thought at that time might be overcome by 

concentrating primarily in the sample prep area. However, she would still 

have to be out in the phlebotomy area as a PCT and would—would have to 

Continued . . . 

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sample preparation area, but would still be engaged in donor monitoring in some 

capacity, and thus would still be responsible for all of the essential functions of the PCT 

position. She also argues the reasonableness of job restructuring involves issues of 

material fact that should not have been resolved at the summary judgment stage. 

Ms. Osborne’s arguments are unavailing. BioLife asserts that because Ms. 

Osborne cannot hear the alarms on the plasmapheresis machines or verbal requests for 

assistance, she cannot safely perform the essential function of donor monitoring. 

Allowing Ms. Osborne to work primarily (but not exclusively) in the sample preparation 

area mitigates but does not eliminate BioLife’s concerns about her capacity to hear 

______________________________________ 

Cont. 

put sets on, you know, would have to take bags off, and so on—bottles off. 

So she was going to be in a situation where she’s going to be monitoring 

donor safety. Everyone was going to be in that situation. 

Aplt. App. at 94. 

I think my plan would have been to—generally she would not—she 

wouldn’t be in a capacity—she would have been more—it was just in the 

sample prep role, what was historically the sample prep role, and her time 

on the floor would have been limited or—in other words—I mean, she 

would have had to have been trained in all areas. And certainly she could 

have been adept in putting up sets and disconnecting donors. But as far as 

monitoring them, probably my goal would have been to—that wouldn’t 

have been something—a situation we would have placed her in on a regular 

basis. So she would have been trained—she would have had to have been 

trained all the way through the PCT, but whether she fulfilled on a daily 

basis the scope of those functions, that—that was my way of making it 

work, was that she wouldn’t—she would be primarily sample prep. 

Id. at 97. 

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alarms and engage in donor monitoring. Reweighting the time spent in different roles is 

not a reasonable accommodation because it would leave Ms. Osborne responsible at least 

to some extent for the essential function of donor monitoring that BioLife asserts she is 

unable to perform. 

We have said employees must be able to perform all of a position’s essential 

functions, even if they are rarely called upon to perform them in practice. See, e.g., 

Hennagir, 587 F.3d at 1262-64; Martin v. Kansas, 190 F.3d 1120, 1132 (10th Cir. 1999), 

overruled on other grounds by Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 

(2001); Anderson v. Coors Brewing Co., 181 F.3d 1171, 1176-78 (10th Cir. 1999). And 

for an accommodation to be reasonable, it must actually enable the employee to perform 

the essential function at issue. See Hwang v. Kan. State Univ., 753 F.3d 1159, 1161-62 

(10th Cir. 2014); Hennagir, 587 F.3d at 1264; 29 C.F.R. § 1630.2(o). Ms. Osborne has 

not shown the proposed accommodation would enable her to perform the essential 

functions of the PCT position, and therefore has not carried her initial burden of showing 

the accommodation “seems reasonable on its face.” Barnett, 535 U.S. at 402. 

Under these circumstances, Ms. Osborne failed to carry her initial burden to show 

job restructuring is a reasonable accommodation. She therefore could not satisfy the 

second element of a prima facie case of discrimination under the ADA. Ms. Osborne’s 

failure on this accommodation, however, does not foreclose her from making a case for 

other accommodations. 

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b. Visual or vibrating alerts 

The second accommodation Ms. Osborne proposes is to add visual or vibrating 

alerts to the plasmapheresis machines, which would notify her when the alarms on the 

machines sound.13 She argues that this accommodation—adopted in conjunction with 

call buttons enabling donors to alert her if they are in distress, which we discuss at greater 

length below—would enable her to perform all of the essential functions of the PCT 

position. 

The district court determined Ms. Osborne had not carried her initial burden of 

showing strobe lights or vibrating features feasibly could be added to the plasmapheresis 

machines. On appeal, Ms. Osborne argues she made the required showing that, on its 

face, adding visual or vibrating alerts to equipment with audible alarms is a reasonable 

accommodation for a deaf individual. BioLife disagrees. First, it contends the evidence 

in the record casts doubt on the feasibility of altering the plasmapheresis machines, and 

argues Ms. Osborne therefore failed to carry her burden on the second step of the prima 

facie case.14 Second, it contends that such a modification would only enable Ms. 

 13 The record suggests the plasmapheresis machines already have a light that 

illuminates when the alarm sounds. Ms. Osborne argues an added strobe light or 

vibrating feature could alleviate any concerns BioLife might have about her inability to 

notice the illuminated light. 

14 BioLife’s argument misconstrues the burden-shifting framework for summary 

judgment by placing the second burden in that framework—undue hardship for the 

employer—on Ms. Osborne. In fact, Ms. Osborne must make only the initial showing 

that the proposed accommodation is reasonable on its face, at which point BioLife bears 

Continued . . . 

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Osborne to perform the essential function of perceiving the alarm on the plasmapheresis 

machines and would not enable her to perform the essential function of donor 

monitoring.15

i. Burden-shifting analysis 

We conclude the court misallocated the burden of proof by requiring Ms. Osborne 

to show not only that her proposed accommodation is reasonable on its face, but also that 

the accommodation would be feasible for BioLife. For her initial burden on the 

qualification element of a prima facie case, Ms. Osborne was required to show only that 

equipment modification for a deaf employee is reasonable on its face. Mason, 357 F.3d 

at 1122. She did. Ms. Osborne offered expert testimony describing individuals with 

disabilities who were successfully employed in the health care industry because of simple 

technological interventions. She also provided evidence of a process by which BioLife 

could request modifications that would add enhanced alert systems to its plasmapheresis 

machines. 

Such modifications are endorsed by ADA’s definition of “reasonable 

______________________________________ 

Cont. 

the burden to demonstrate undue hardship. See Mason, 357 F.3d at 1122. 

15 The district court only addressed the feasibility of visual or vibrating alerts and 

did not assess whether the direct threat criteria were relevant in assessing any remaining 

risk. On appeal, BioLife does not dispute that visual or vibrating alerts, if installed, 

would allow Ms. Osborne to perceive the alarms on the plasmapheresis machines. We 

limit our discussion here to the district court’s analysis, and address the direct threat 

criteria in our analysis of Ms. Osborne’s proposed call button accommodation. 

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accommodation,” which specifically includes “acquisition or modification of equipment 

or devices.” 42 U.S.C. § 12111(9)(B). The EEOC has said the use of appropriate 

emergency notification systems—like strobes or vibrating pagers—is one form of 

reasonable accommodation for a deaf employee, including those in health care settings. 

See EEOC, Questions and Answers about Deafness and Hearing Impairments in the 

Workplace and the Americans with Disabilities Act, § 9, 

http://www.eeoc.gov/eeoc/publications/qa_deafness.cfm (last accessed Aug. 6, 2015); 

EEOC, Questions and Answers about Health Care Workers and the Americans with 

Disabilities Act, http://www.eeoc.gov/facts/health_care_workers.html (last accessed Aug. 

6, 2015). We consider Ms. Osborne’s showing sufficient to carry her burden of 

demonstrating that the accommodation “seems reasonable on its face, i.e., ordinarily or in 

the run of cases.” Barnett, 535 U.S. at 402. 

Upon Ms. Osborne’s satisfying this burden, the burden of production shifted to 

BioLife, which was required to show the proposed accommodation is not feasible or 

would constitute an undue hardship. See id.; Mason, 357 F.3d at 1122. Considerations 

about how much alarms would cost, when they could be added in the production process, 

and who would install them are not part of Ms. Osborne’s initial burden. Instead, they 

are considerations BioLife, as the employer, must identify with specificity to illustrate 

why the proposed accommodation constitutes an undue hardship and is thus 

unreasonable. Allocating burdens in this fashion recognizes that employees are illequipped to demonstrate that an accommodation is feasible for an employer. Instead, the 

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employer can more readily identify why an accommodation is not feasible under the 

ADA. 

The only evidence in the record on the feasibility of equipment modifications is 

the testimony of a BioLife employee, who indicated BioLife was unable to modify the 

machine and any modifications would have to be requested through its vendor. Aplt. 

App. at 501-02. Merely noting that modifications would require BioLife to contact its 

vendor does not show undue hardship and fails to satisfy BioLife’s burden of showing it 

would be infeasible to implement Ms. Osborne’s proposed accommodation.16 Although 

 16 The record testimony from BioLife employees does not illustrate they 

investigated the possibility of equipment modifications or established it would constitute 

an undue hardship: 

Q: . . . Did Baxter/BioLife give any consideration to modifying the alert 

and alarm lights on the plasmapheresis machine as an accommodation for 

Ms. Osborne? 

A: I believe that was discussed, but those machines cannot be altered. 

They are regulated by the FDA, and so we are not at liberty to make 

changes to the machines. 

Q: And what’s your basis for saying that? Are you referring to a 

regulation that you’ve read? 

A: No. I’m familiar with the fact that we’ve had these machines. 

Aplt. App. at 327 (quoting Sheila Stachura). 

Q: . . . [I]s it your understanding that modification of a 510(k) medical 

device is prohibited by the FDA? If you know. 

A: No, it’s not prohibited. It’s a process that would have to—a lengthy 

process, and we would have to go through our vendor. 

Id. at 362 (quoting Sherrie Stevenson). 

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the services of an experienced vendor may be necessary to modify many types of medical 

equipment, BioLife has not shown the specific modifications proposed here are costly or 

difficult, leaving a question of fact for the jury. We therefore conclude the district court’s 

grant of summary judgment on this accommodation was premature. 

ii. Incomplete accommodation 

Although we conclude Ms. Osborne showed her proposed accommodation is 

reasonable on its face and BioLife did not show undue hardship, we agree with BioLife 

that Ms. Osborne’s proposal would not allow her to perform the full range of essential 

functions of the position unless additional accommodations are adopted. The visual and 

vibrating alerts would address BioLife’s concern about the plasmapheresis machines, but 

would not enable Ms. Osborne to perform the essential function of donor monitoring. 

Ms. Osborne does not dispute that some incidents demanding her attention would not 

trigger the plasmapheresis alarms. At best, adding visual or vibrating alerts would alert 

Ms. Osborne to some portion of the concerns that might arise during the donation 

process. They would not alert her to donors’ physiological reactions that have little or 

nothing to do with the functioning of the machines. As we note above, a reasonable 

accommodation, by definition, must enable an employee to perform the essential 

functions of a position. See 29 C.F.R. § 1630.2(o). 

iii. Conclusion 

We conclude summary judgment was inappropriate insofar as Ms. Osborne 

demonstrated an issue of material fact as to whether visual or vibrating alerts would 

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enable her to perceive the alarms on the plasmapheresis machines. This determination 

does not merit reversal, however, unless Ms. Osborne’s remaining accommodation, in 

tandem with the visual and vibrating alerts, would permit her to perform the other 

essential functions of the PCT position. Because Ms. Osborne argued her 

accommodations should be considered in conjunction with one another, see Aplt. App. at 

282, we turn to her final accommodation to resolve the appeal. 

c. Donor call buttons

The third accommodation Ms. Osborne proposes is to issue call buttons to donors 

to notify her if they experience discomfort or distress. The district court concluded this 

accommodation did not satisfy the second element of a prima facie case of 

discrimination. It determined that the potential of a donor’s severe reaction, even if 

statistically de minimis, was sufficient to show that call buttons are not a reasonable 

accommodation. It also concluded that issuing a call button to donors was unreasonable 

because it would place the onus on donors to alert Ms. Osborne to their adverse reactions, 

and donors in distress may be impaired in their ability to use these tools. 

The parties agree that perceiving and responding to donor reactions is an essential 

function of the PCT position. Mr. Elder testified that the BioLife facility experienced 

roughly four to five significant adverse reactions annually.17 BioLife’s expert recalled 

 17 A “significant” adverse reaction is one where a donor required medical attention 

outside the center. Aplt. App. at 91. Mr. Elder noted, “And that probably wouldn’t be, 

you know, an ambulance coming. That would be us recommending that they have some 

Continued . . . 

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seven adverse reactions over the previous three years—five of these required a nurse to 

administer epinephrine to a donor and arrange for transportation to a hospital and the 

other two involved falls by donors who became dizzy. Because adverse reactions 

increase in severity over time, however, BioLife stresses that prompt responses are 

important. As BioLife’s Associate Medical Director testified, relatively minor adverse 

reactions can progress to serious conditions without swift intervention. See Aplt. App. at 

120-22. BioLife observes that all PCTs in the donor area must be capable of promptly 

perceiving and responding to adverse reactions because other PCTs may be occupied 

with other duties. The question before us is whether call buttons would enable Ms. 

Osborne to perform the essential function of donor monitoring. Our answer is that a jury 

should decide. 

i. Ms. Osborne’s arguments 

On appeal, Ms. Osborne argues that call buttons are a reasonable accommodation 

that would allow her to perform the essential function of donor monitoring. First, Ms. 

Osborne suggests that to determine whether she can safely perform the essential functions 

of the PCT position, we must consider whether she is a “direct threat,” which the ADA 

defines as “a significant risk to the health or safety of others that cannot be eliminated by 

______________________________________ 

Cont. 

additional treatment.” Aplt. App. at 91. The record does not indicate whether those four 

or five reactions also triggered the alarm on the plasmapheresis machine, such that Ms. 

Osborne’s proposed visual or vibrating alerts would have sufficed to alert her when they 

occurred. 

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reasonable accommodation.” 42 U.S.C. § 12111(3). Ms. Osborne emphasizes the 

plasma donation process is safe and has historically carried a low risk—about 0.0004%—

of significant adverse donor reactions, and that she would be able to attend to those 

reactions using call buttons in spite of her hearing impairment. She argues the district 

court erred in assuming that any de minimis risk of harm would be unacceptable and in 

ignoring the comparative risk of a hearing PCT providing an inadequate response. 

Second, Ms. Osborne contends a call button would allow her to perform the 

essential function of donor monitoring. Joe Schaffner, an expert in adaptive technology 

for persons with disabilities, testified that donors could have been provided with a call 

button system that would visually alert Ms. Osborne that a donor needed her attention. 

Ms. Osborne notes this would be similar to call buttons in hospitals, where patients use 

them to contact a nurse. Like a call button in a hospital or an airplane, Ms. Osborne 

argues the button could indicate the source of the request, and even if the specific source 

were not identified, Ms. Osborne could ask who needs assistance and quickly survey the 

room. She further notes that when a donor has a reaction, a PCT must get help from a 

senior PCT. See Aplt. App. at 291-92, 295, 333, 368. To perform the essential function 

of donor monitoring, Ms. Osborne must only be able to recognize that a patient is in 

distress and get help, which she would be equipped to do with the call button 

accommodation. She therefore argues she is qualified with reasonable accommodations 

and satisfies the second element of the prima facie test under the ADA. 

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ii. BioLife’s arguments 

BioLife contends call buttons would be insufficient to allow Ms. Osborne to 

perform the essential function of donor monitoring. First, BioLife contends we need not 

consider whether Ms. Osborne constitutes a “direct threat” to health and safety in the 

PCT position. Instead, it is enough that Ms. Osborne has not shown she can perform the 

essential functions of the position and therefore is not a qualified individual under the 

ADA. 

Second, BioLife argues call buttons are not a reasonable accommodation because 

an adverse reaction may impair the donor’s ability to recall or follow instructions on 

using the call button, particularly because some adverse reactions cause donors to 

become confused, incoherent, or temporarily disabled. BioLife contends it would be 

more difficult for donors to remember to push a button to alert Ms. Osborne than it would 

be for them to follow a natural instinct to call out for help. It also notes that when a call 

button alert sounds, Ms. Osborne would still have to determine which of the donors in the 

section—from as many as 18 people—had sounded the alarm, which may delay her 

response. 

iii. Analysis 

To address the call button accommodation, we first clarify how we evaluate 

essential functions that implicate the health and safety of others, and then consider 

whether Ms. Osborne has carried her initial burden by identifying a facially reasonable 

accommodation. We conclude Ms. Osborne has raised a genuine issue of material fact as 

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to whether the call buttons, used in conjunction with visual or vibrating alerts, would 

allow Ms. Osborne to perform the essential function of donor monitoring, making 

summary judgment inappropriate. 

1) The direct threat criteria applied 

BioLife’s sole concern is whether Ms. Osborne can safely perform the essential 

function of donor monitoring. It does not argue that Ms. Osborne would be unable to 

perform this function as a general matter, but instead argues there are limited 

circumstances where she might be unable to perceive adverse donor reactions and 

respond as swiftly as a hearing person. BioLife therefore contends it must prevail so long 

as Ms. Osborne, working with the benefit of her proposed accommodations, poses a de 

minimis risk to donors. As noted above, BioLife misapprehends ADA law. To prove the 

prima facie case element that she is “qualified” for the PCT position, Ms. Osborne must 

show she would be able to perform the essential functions of the position without 

endangering others. The direct threat criteria from Arline determine whether Ms. 

Osborne demonstrated her proposed accommodation is reasonable on its face and met her 

initial burden. 

Ms. Osborne points to evidence in the record that the plasma donation process is 

safe and has historically carried a low risk—about 0.0004%—of significant adverse 

donor reactions. BioLife argues an employer may require employees to be able to 

perform all of the essential functions of a position “even if some of those essential 

functions are rarely required or required only when demand for the function arises.” 

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Aplee. Br. at 17. It points to Tenth Circuit precedent establishing the principle that 

employers need not excuse employees from essential functions simply because those 

functions are rare. See, e.g., Hennagir, 587 F.3d at 1262-64; Martin, 190 F.3d at 1132; 

Anderson, 181 F.3d at 1176-78. Based on this principle, BioLife contends Ms. Osborne’s 

accommodation is unreasonable because she would be unable to perform the essential 

function of donor monitoring in rare—0.0004%—instances of significant adverse 

reactions. 

BioLife misconstrues both these cases and Ms. Osborne’s argument. The cases 

address the likelihood that an employee will have to perform a particular essential 

function in the course of employment, not the likelihood that a particular set of factual 

circumstances might arise that could preclude an employee’s ability to perform that 

function. Ms. Osborne is not arguing that she should be excused from any aspect of 

donor monitoring—to the contrary, her argument for the installation of call buttons 

indicates she expects to engage in that function. She argues she can perform the essential 

function of donor monitoring with reasonable accommodation, and the potential mishaps 

BioLife identifies are so remote and hypothetical that they do not implicate her ability to 

perform that function.18 We therefore consider whether she could perform the essential 

 18 Rizzo v. Children’s World Learning Centers, Inc., 84 F.3d 758 (5th Cir. 1996), 

is instructive. Ms. Rizzo had a hearing impairment. Her job as a teacher’s aide included 

driving the school van. Concerned about her ability to hear a choking child while driving 

the van, her employer relieved Ms. Rizzo of her driving duties. She ultimately resigned 

and sued under the ADA. The district court granted summary judgment for the employer. 

Continued . . . 

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functions of the position using the direct threat criteria. 

Both Arline and the EEOC regulations identify the nature, duration, severity, and 

probability of the risk as relevant factors in our inquiry. 480 U.S. at 288; 29 C.F.R. 

§ 1630.2(r). The parties here focus primarily on probability and severity. Because the 

specific kinds of donor reactions and attendant factual circumstances BioLife identifies 

are neither likely nor in each instance necessarily serious, they do not undermine Ms. 

Osborne’s ability to fulfill the essential function of donor monitoring with reasonable 

accommodations. 

The significant adverse reactions BioLife identifies are historically rare, occurring 

in about 0.0004% of donations.19 BioLife does not dispute that Ms. Osborne will be able 

______________________________________ 

Cont. 

The Fifth Circuit reversed. On the issue of whether Ms. Rizzo was qualified—the second 

element of her prima facie case—the court said: “the question is whether the person is 

able to safely drive the van and not present a direct threat to the children’s safety.” Id. at 

763. Applying the Arline direct threat criteria, and noting that “[n]o evidence was 

presented regarding the ability of anyone to hear a choking child while driving a van,” id.

at 764, and that Ms. Rizzo presented “evidence showing that it was safe for her to drive 

the van,” id., including evidence she could hear emergency vehicles, id., the court 

concluded “there exists a genuine issue of material fact as to whether Rizzo is a direct 

threat, and thus, whether she was a qualified individual with a disability,” id. As in 

Rizzo, the record in this case contains no evidence—just speculation—that Ms. Osborne, 

working with the benefit of her proposed visual or vibrating alert and call button 

accommodations, would present a direct threat to others, and therefore presents at least as 

strong a case against summary judgment. See also Branham, 392 F.3d at 905-09. 

19 We further note the significant adverse reactions BioLife identifies are not 

necessarily severe. Although adverse reactions can be serious, in many instances the 

potential harm to donors is both minor and temporary. The FDA defines the universe of 

Continued . . . 

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to deal with nearly all of the reactions that donors may experience. Instead, it argues that 

so long as there is a risk that (1) a donor will experience a significant adverse reaction—a 

0.0004% risk—and (2) the reaction is a type that is not picked up by the visual or 

vibrating alerts on the plasmapheresis machine, and (3) the reaction is a type that 

prevents the donor from pressing the call button but would not prevent the donor from 

calling out, and (4) Ms. Osborne’s back happens to be turned at the time of the distress, 

and (5) other donors do not assist in getting anyone’s attention, Ms. Osborne might be 

unable to perform the essential function of responding to that donor and getting help from 

a senior PCT. The infinitesimal risk of these hypotheticals occurring simultaneously—

which is much less than 0.0004% when the risk of adverse reaction is multiplied by the 

probability of the other occurrences20—does not come anywhere close to constituting a 

“direct threat.” Indeed, nothing in the record establishes whether or how often 

______________________________________ 

Cont. 

“adverse reactions” to include things like “lightheadedness, fainting, nausea, tingling, 

flushing, wheezing, chest pain, low blood pressure, rapid heart rate, low back pain, 

bronchial spasms, difficulty breathing, loss of consciousness, and convulsions.” Aplt. 

App. at 113. So long as these result in a recommendation for follow-up care, they may be 

characterized as “significant.” Aplt. App. at 91. BioLife notes minor reactions can 

become severe over time, but the severity of adverse reactions and their physical 

consequences varies widely and is mitigated by timely intervention. Whether Ms. 

Osborne can intervene in a timely manner with reasonable accommodation is a question 

of fact for a jury. 

20 Even if the factors are not independent variables for purposes of using the 

product rule to yield a probability, the number will still be much less than 0.0004%. See 

Paul C. Giannelli & Edward J. Imwinkelried, Scientific Evidence § 15.07 (4th ed. 2007). 

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occurrences (2) through (5) would occur. “Whether one is a direct threat is a 

complicated, fact intensive determination, not a question of law. To determine whether a 

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

for the trier of fact to determine after weighing all of the evidence about the nature of the 

risk and the potential harm.” Rizzo v. Children’s World Learning Centers, Inc., 84 F.3d 

758, 764 (5th Cir. 1996). Permitting employers to obtain summary judgment by 

identifying such unlikely scenarios would eliminate ADA protection for disabled 

individuals working in professions where they might be tasked with the health and safety 

of others. See Justice v. Crown Cork & Seal Co., Inc., 527 F.3d 1080, 1092 n.5 (10th Cir. 

2008). 

To shift the burden of proof to BioLife, Ms. Osborne must show only that her 

proposed accommodation is reasonable on its face; that is, it would permit her to perform 

the essential function at issue—here, donor monitoring. She need not show that the 

accommodation would eliminate every de minimis health or safety risk that BioLife can 

hypothesize. See id. at 1091-92. Because significant adverse donor reactions are highly 

improbable and not always serious, and because no record evidence shows Ms. Osborne 

would be unable to handle them, we cannot conclude they render Ms. Osborne 

unqualified as a matter of law to perform the essential function of donor monitoring. See 

Arline, 480 U.S. at 288 (determining “the resolution of whether Arline was otherwise 

qualified requires further findings of fact”). A reasonable jury could find otherwise. 

Whether the risk of a series of hypotheticals occurring is sufficiently real, whether any 

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such risk is any greater than one pertaining to a hearing person, and whether any such 

risk renders Ms. Osborne unqualified to perform the essential function even with the aid 

of reasonable accommodations are questions of fact for the jury, not questions for the 

district court to decide as a matter of law. 

Although we reject the argument that any de minimis risk to health and safety 

merits summary judgment, this determination does not necessarily mean that Ms. 

Osborne’s proposed accommodation is reasonable on its face. To survive summary 

judgment, Ms. Osborne must also show that call buttons would make her qualified to 

perform the essential function of donor monitoring. 

2) Ms. Osborne’s reasonable accommodation showing and 

BioLife’s other arguments 

 In addition to its de minimis risk argument addressed above, BioLife makes two 

related objections to the call button accommodation: (1) donors may find it difficult to 

use and should not be required to do anything other than call out if they need assistance, 

and (2) Ms. Osborne may not be able to determine who pressed the call button, resulting 

in delayed identification of a donor in distress. These arguments address whether Ms. 

Osborne can meet her initial burden to show her proposed accommodation is reasonable 

on its face.21 Construing the evidence in her favor, we conclude she has sufficiently 

shown a triable issue as to whether the accommodation is reasonable. 

 21 BioLife does not contend providing call buttons would constitute an undue 

hardship. We therefore limit our analysis to whether call buttons are facially reasonable. 

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 Through expert testimony and EEOC guidelines, Ms. Osborne has demonstrated 

the call buttons would alert her to a donor experiencing an adverse reaction. She also has 

shown she is a skilled lip reader and contends she can communicate effectively with a 

donor having an adverse reaction or notify a senior PCT. Unless BioLife’s two 

arguments convince us otherwise, Ms. Osborne has carried her “not onerous” burden of 

identifying an accommodation that is reasonable on its face. Hawkins, 778 F.3d at 883 

(quoting Plotke, 405 F.3d at 1099). 

First, BioLife contends the call button is unreasonable on its face because it is 

insufficient to alert PCTs. BioLife argues donors may not be familiar with the call button 

system or remember to press the button and will find it more natural to call out for help. 

But this is purely speculative, and BioLife does not support these assertions with any 

proof. As Ms. Osborne points out, call buttons are common in hospitals and other 

medical settings, and there is no indication they would be insufficient in the plasma 

donation context. BioLife suggests donors suffering a significant adverse reaction—

again, a 0.0004% risk—may lose consciousness, become less and less alert, or suffer 

seizures, but these problems are not unique to pushing a call button; presumably, a donor 

who loses consciousness would also be unable to verbally call out or make noise to alert a 

hearing PCT.22 Whether donors are capable of using a call button system and whether 

 22 Nor are verbal cues and call buttons mutually exclusive. Ms. Osborne’s 

proposed accommodation would allow donors to either verbally or visually request help 

from the PCTs working in the area, who collectively monitor the donors in the donation 

Continued . . . 

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call buttons would materially affect their ability to alert the PCT in the event of an 

adverse reaction are questions of fact for the jury.23 

As part of this argument, BioLife asks us to affirm the district court’s 

determination that the accommodation is unreasonable because the call buttons would put 

the onus of monitoring on the donor. We do not because the call button would not put 

any more onus on the donor than the donor already bears. Ms. Osborne, like a hearing 

PCT, can visually assess the room when she is facing donors. When her back is turned, a 

donor will have to press the call button. When a hearing PCT’s back is turned, a donor 

will have to call out or make a physical noise. In both cases, the donor must get a PCT’s 

attention. The method of alerting a PCT differs, but the burden of alerting a PCT remains 

on the donor in both instances. Whether Ms. Osborne would be any less able to respond 

than a hearing PCT in this circumstance is a factual question a jury should decide. 

Second, BioLife contends call buttons are unreasonable on their face because 

when an alert sounds, Ms. Osborne would still have to determine who sounded the alarm, 

______________________________________ 

Cont. 

area. Such an arrangement would likely be safer and more comprehensive than verbal 

cues alone. See Aplt. App. at 282 (arguing for accommodations working in tandem). 

23 BioLife contends the call button is insufficient because it is less effective than a 

verbal request. Even if BioLife had offered factual support for this assertion in the 

record—and it has not—it would not prove Ms. Osborne’s accommodation is 

unreasonable. Ms. Osborne must show her accommodation will allow her to perform the 

essential function of donor monitoring; as long as she is able to perform the essential 

function, we are unaware of any case law requiring that she be able to do it identically to 

a non-disabled person. 

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thereby delaying her response. As an initial matter, BioLife could easily resolve this 

problem by having each call button illuminate an individual light over the relevant donor, 

as is common in airplanes, hospitals, and other settings where call buttons are used. 

More significantly, the record does not establish that the time it takes for Ms. Osborne to 

identify a donor in distress would be any different from a hearing employee turning 

around and trying to identify a donor in distress based on a verbal alert. BioLife has not 

supported its assertion that Ms. Osborne’s identification of the donor in distress would 

produce a delay, nor has it shown that any delay that does occur would render Ms. 

Osborne unable to perform the essential function of donor monitoring.24 

Because Ms. Osborne has shown the call-button accommodation is reasonable on 

its face, and because BioLife has not shown Ms. Osborne’s proposed accommodation is 

unreasonable as a matter of law, BioLife bears the burden of showing call buttons are 

infeasible or an undue hardship. It has not made that showing. Ms. Osborne’s ability to 

perceive and respond to adverse donor reactions is a question of fact for a jury to decide. 

 24 BioLife has not identified objective criteria for the essential function of donor 

monitoring, nor does the evidence suggest that BioLife generally assesses the perception 

or reaction times of incoming employees. The lack of objective criteria makes this case 

different from cases like Hennagir, 587 F.3d at 1259, where a correctional officer was 

unable to complete a physical safety training requirement, Hawkins, 778 F.3d at 881, 

where a facility supervisor was unable to obtain required Department of Transportation 

certification to drive the employer’s vehicles, or Milton, 53 F.3d at 1120, where 

warehouse employees were unable to meet defined production standards. The lack of 

discrete criteria makes it difficult, if not impossible, for us to say that any potential delay 

would make Ms. Osborne unable to perform the essential function of donor monitoring as 

a matter of law. 

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5. Verbal Communication 

In its filings before the district court, BioLife identified verbal communication as 

an essential function of the PCT position, and each party presented competing evidence 

regarding Ms. Osborne’s abilities to communicate verbally. The district court, however, 

did not address Ms. Osborne’s verbal communication skills in its ruling. Instead, it 

specifically granted summary judgment on the basis that she could not perform the 

essential function of donor monitoring. 

We have said “[a]n issue is preserved for appeal if a party alerts the district court 

to the issue and seeks a ruling.” Somerlott v. Cherokee Nation Distribs., Inc., 686 F.3d 

1144, 1150 (10th Cir. 2012) (quotations omitted). Both parties alerted the district court 

to the essential function of verbal communication, and both reiterate their arguments on 

appeal. Because we believe the record is fully developed on this point, we opt to resolve 

the issue before remanding the case to the district court. 

After reviewing the record, we conclude there is a genuine dispute of material fact 

as to whether Ms. Osborne could perform the essential function of verbal communication. 

BioLife employees testified they did not recall discussing whether Ms. Osborne could 

speak clearly when deciding to revoke her offer of employment. Mr. Elder indicated he 

was “impressed with her ability to communicate” and “felt she could communicate 

effectively in the workplace.” Aplt. App. at 95, 307-08. BioLife presented expert 

testimony to the contrary, but BioLife’s expert did not meet Ms. Osborne or personally 

test her abilities, and the record does not suggest the expert has visited the BioLife 

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facility or is familiar with its day-to-day operations. BioLife suggests Ms. Osborne’s 

ability to read lips may be impaired when a donor is having a significant adverse reaction, 

but BioLife does not contend Ms. Osborne would be unable to give orders or instructions 

under those circumstances, nor does it establish that donors experiencing significant 

adverse reactions would be able to communicate with hearing individuals unimpeded. 

Based on this record, we believe that whether Ms. Osborne can perform the essential 

function of verbal communication is a genuine issue of material fact, and that summary 

judgment on this ground would be improper. 

* * * 

Because Ms. Osborne’s ability to respond to donor reactions involves disputes of 

material fact and BioLife has not illustrated that using call buttons in conjunction with 

visual and vibrating alerts would be unreasonable as a matter of law, we reverse the grant 

of summary judgment and remand for further proceedings. 

B. Allocation of Costs 

BioLife argues Federal Rule of Civil Procedure 54(d)(1) generally requires that 

costs be awarded to the prevailing party. We have said that Rule 54 creates a 

presumption that costs will be awarded, and that if district courts decline to award costs 

to the prevailing party, they must provide a reason for doing so. See Cohlmia v. St. John 

Med. Ctr., 693 F.3d 1269, 1288 (10th Cir. 2012). BioLife argues that because the district 

court did not give a basis for its decision not to award costs, we should reverse the award. 

BioLife’s argument is premised on the determination that it is the prevailing party, 

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and because we reverse and remand the grant of summary judgment, that determination is 

moot. On remand, the district court will have an opportunity to allocate costs as it sees fit 

in light of the proceedings to follow. 

III.CONCLUSION 

Because Ms. Osborne marshalled sufficient evidence to avoid summary judgment 

and BioLife offered insufficient proof to show an absence of factual dispute, under the 

burden-shifting framework for an ADA case, we reverse the district court’s grant of 

summary judgment to BioLife. We therefore deem BioLife’s cross-appeal for costs moot 

and remand to the district court. 

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