Eileen M. Felix v. Wisconsin Department of Transportation

In the
United States Court of Appeals
For the Seventh Circuit
No. 15‐2047
EILEEN M. FELIX ,
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 FEBRUARY 12, 2016 — D ECIDED J ULY 6, 2016
Before WOOD , Chief Judge, R OVNER , Circuit Judge, and
BLAKEY , 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.

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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 fees

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No. 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 resources

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4 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 to

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No. 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, Felix

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6 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 management

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No. 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.

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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.

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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 her

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10 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.

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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‐

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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 the

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No. 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.

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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 discrimination

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No. 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 illness

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16 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)

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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).

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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., Hotel

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No. 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‐

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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 an

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No. 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.,

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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 for

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No. 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 it

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24 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 independent

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No. 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 for

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26 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 credit

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No. 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.

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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.

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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.

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