Victoria RIZZO, Plaintiff-Appellee, v. CHILDREN'S WORLD LEARNING CENTERS, INC., doing business as CWLC, Incorporated, Defendant-Appellant, 213 F.3d 209

W. EUGENE DAVIS, Circuit Judge: We took this case en banc primarily to determine whether, in this fully-tried case, the district court erred in the instructions it gave to the jury in Victoria Rizzo’s action under the Americans with Disabilities Act and, secondarily, whether the record supports the verdict. The jury, in response to special interrogatories, rendered a verdict in favor of Ms. Rizzo. After carefully reviewing the record, we conclude that the district court committed no plain error in submitting this case to the jury and that the evidence amply supports the verdict.

We therefore affirm the judgment of the district court. I. Appellee, Ms. Victoria Rizzo, was employed by appellant, Children’s World Learning Centers, Inc. (CWLC), as a teacher’s aid. One of her duties was driving a van transporting children to and from school. Ms. Rizzo had a hearing impairment which she disclosed to CWLC before she was hired. After observing Ms. Rizzo in the classroom, a parent expressed concern about whether Ms. Rizzo’s hearing impairment placed the children at risk while they were riding as passengers in Ms. Rizzo’s van. Shortly thereafter, CWLC relieved Ms.

Rizzo of her driving duties because of their concern that her hearing impairment prevented her from safely driving the van and supervising the children in the van. The district court initially granted

summary judgment in favor of CWLC on grounds that the employer took the personnel action for a legitimate non-discriminatory reason and Rizzo failed to show that this reason was pretextual. Ms. Rizzo appealed to this court and we concluded that issues of fact were presented then required resolution at trial. Rizzo v. Children’s World Learning Centers, Inc., 84 F.Sd 758 (5th Cir.1996)(Rizzo I). We stated that “[wjhether one is a direct threat [to the safety of herself or others] 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.” Id. at 764. On the burden of proof, we stated that “[a]n employee who is a direct threat is not a qualified individual with a disability. As with all affirmative defenses, the employer bears the burden of proving that the employee is a direct threat.” Id. On remand, the case was tried to a jury, which rendered a verdict in favor of Ms. Rizzo.

The district court entered a judgment on the verdict and a divided panel affirmed. Rizzo v. Children’s World Learning Centers, Inc., 173 F.3d 254 (5th Cir.1999)(Rizzo II). The dissent took the position that the district court erred in two respects: first, in placing the burden of proof on the defendant to establish that Ms.

Rizzo was a direct threat to the children she was transporting in the van, and; second, in failing to grant defendant’s motion for judgment as a matter of law on grounds that the plaintiff failed to produce sufficient evidence to support the implicit jury finding that she engaged in the interactive process to provide information to the employer about the extent of her disability. We took this case en banc to consider these two issues. II. A. CWLC first challenges the district court's charge to the jury, explaining which party had the burden of establishing that Ms.

Rizzo was a direct threat to her student passengers. In charging the jury, the district court first instructed the jury that the plaintiff, Rizzo, had the burden of proving the essential elements of her claim. The court explained that this required the plaintiff to prove that she was a qualified person with a disability or a person who “can perform the essential functions of the employment position ... and who does not pose a ‘direct threat’ to the health and safety of herself or others.” Neither party objected to this charge and no argument is advanced suggesting that it is erroneous.

The court's next instruction explained the employer's defense that Ms. Rizzo was removed as the school van driver because CWLC thought she posed a direct threat to the health and safety of herself and others. The district court-faithful to our remand order in Rizzo I-charged that the "defendant has the burden to prove by a preponderance of the evidence that a direct threat exists." No objection was made to this charge. The question of who bears the burden of establishing that an individual's disability poses a direct health or safety threat to the disabled employee or others is not a simple one.

A number of cases either hold or suggest that direct threat is an affirmative defense on which the defendant ordinarily has the burden of proof. Other cases hold to the contrary. Because neither side objected to either of the district court’s instructions described above, we review this challenge for plain error. As we stated in Highlands Ins. Co. v. National Union Fire Ins. Co. of Pittsburgh, 27 F.3d 1027, 1031-32 (1994): Federal Rule of Civil Procedure 51 is even more restrictive than Criminal Rule 52(b); indeed, one circuit holds that it allows no new attacks on instructions on appeal.

We thus agree with the Sixth Circuit that “[t]he principles and decision enunciated in Olano apply a fortiori in the civil context where courts pay less strict attention to procedural protocol.” Olano augments this court’s longstanding rule that reversal for plain error is “not a run-of-the-mill remedy” and will occur “only in exceptional circumstances to avoid a miscarriage of justice.” In allocating the burden of proof to the defendant to establish its defense, the district judge carefully followed the marching orders we gave him in Rizzo I.

In this circumstance we are therefore unable to say the district court committed error at all. But, if we assume that the district court somehow committed error, it certainly was not plain or “obvious” error and we need not resolve the burden of proof issue raised for the first time on appeal. Turning to the sufficiency question, our review of the record persuades us that the evidence amply supports the jury’s finding that Rizzo was able to drive the van safely and did not pose a direct threat to her passengers. Ms.

Rizzo produced evidence of her safe driving history and unblemished history of supervising the children without incident. Rizzo also produced evidence that CWLC evaluated her skills and gave her a driving score in excess of the minimum needed to be able to drive the van. She was experienced in life saving procedures and possessed all licenses required by the State of Texas. Rizzo’s own testimony supported the conclusion that she had no difficulty supervising children on the bus. She testified about how she used the van’s internal mirrors and how she kept order on the bus.

The evidence was clearly sufficient to support this jury finding. B. CWLC argues next that Ms. Rizzo failed to communicate with it to provide sufficient Information about her disability to allow the employer to evaluate whether she could perform the job safely. The district court — as part of its charge on reasonable accommodation — explained the obligations of the employer and employee to communicate with each other about the employee’s disability and how that disability relates to job performance. In rendering a verdict for the plaintiff, the jury implicitly found no inadequate responsiveness by Ms.

Rizzo in providing necessary information about her condition. No objection was made to this charge so the question narrows to whether the evidence is sufficient to support this implicit finding. Viewing the evidence in a light favorable to the verdict, our review of the record persuades us that the evidence is sufficient. It is undisputed that before the parent expressed concern that Ms. Rizzo could not safely drive the van and supervise the children, CWLC knew a number of important facts: Ms.

Rizzo possessed a commercial driver’s license; she had taken and passed all of the written and performance criteria established by CWLC relating to van driving; and finally, no one had ever reported to appellant that Ms. Rizzo had failed to safely drive the van and supervise the children. In fact, the parent who expressed concern about Ms. Rizzo did not observe her engaging in any unsafe practices. In response to the statement made by the concerned parent, appellant’s director, Ms. Ryan, told Ms. Rizzo that she was concerned about whether Ms.

Rizzo could hear a siren and whether she could hear a child choking in the van. Ms. Ryan told Ms. Rizzo that she could no longer drive the van until CWLC satisfied itself that she could do it safely. Following this meeting, Ms. Ryan indicated to Ms. Rizzo that CWLC would have an audiologist test Ms. Rizzo at the school. Despite inquiry by Ms. Rizzo, CWLC never arranged for such a test. Approximately three weeks later Ms. Rizzo went to her own audiologist. After testing her hearing, the audiologist reported that Ms. Rizzo should have no difficulty hearing a siren. Ms.

Rizzo delivered the audiologist’s report to Ms. Ryan and told her to call the audiologist if she had any questions. When Ms. Rizzo asked Ms. Ryan whether CWLC planned to have an audiologist test her at the school, Ms. Rizzo received no definitive answer. Ms. Ryan finally told Ms. Rizzo that the matter was in the hands of Ms. Ryan’s superior, Claudia Adame. When it became apparent to Ms. Rizzo that CWLC planned to take no further steps to resolve the question of whether her hearing impairment affected her ability to drive the van and supervise the children in the van, she resigned.

We are satisfied that the jury was entitled to conclude that Ms. Rizzo adequately communicated with CWLC about her hearing impairment and the effect of this impairment on her ability to safely drive the school van. III. For the above reasons, the judgment of the district court is affirmed. .

The dissent disagrees with our reading of the record and takes the position that the defendant objected to the court’s instruction placing the burden of proof on the defendant to establish its affirmative defense of "direct threat.” Some background is helpful to understand why the objection the defendant points to on pages 452 and 453 (Volume

V) of the record does not preserve this issue for appeal. The direct threat issue was presented in the district court in two ways: First, plaintiff was required to prove, as one of the elements of her case, that she was a "qualified individual with a disability.” The court defined this phrase as one who can perform the essential functions of the employment position without posing a "direct threat” to the health or safety of herself or others. The court instructed the jury that the plaintiff had the burden of proving this and other elements of her case.

Second, the defendant asserted an affirmative defense that plaintiff was removed from driving the van because her employment in this capacity posed a "direct threat" to the health or safety of others. The court charged that the defendant had the burden of proving this affirmative defense. The defendant's only objection at trial that related to the defendant's "direct threat" defense was to the court's failure to require the jury to answer a separate interrogatory on this defense.

The defendant was concerned that without a separate jury issue on the defendant's affirmative defense, the jury would become confused and require the defendant to prove an element of the plaintiff's case-that Rizzo was a "qualified individual with a disability." Defendant makes a very different argument on appeal. Instead of arguing that the court should have given the jury a separate interrogatory on the defendant's affirmative defense, it argues that the court erred in assigning the burden of proof to it to establish this affirmative defense.

The defendant's objection did not complain of the court's burden of proof instruction and this issue was not preserved for appeal. . See EEOC v. AIC Security Investigations, Ltd., 55 F.3d 1276, 1283-85 (7th Cir.1995); Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247-48 (9th Cir.1999); Hartog v. Wasatch Academy, 129 F.3d 1076, 1088-1089 (10th Cir.1997); see also 29 C.F.R. § 1630.15(b)(2). . Moses v. American Nonwovens, Inc. 97 F.3d 446, 447 (11th Cir.1996); EEOC v. Amego, Inc., 110 F.3d 135, 142-44 (1st Cir.1997). . It is unclear from the statutory scheme who has the burden on this issue.

It may depend on the facts of the particular case. The EEOC suggested at argument that where the essential job duties necessarily implicate the safety of others, the burden may be on the plaintiff to show that she can perform those functions without endangering others; but, where the alleged threat is not so closely tied to the employee’s core job duties, the employer may bear the burden. See also EEOC v. Amego, 110 F.3d 135, 144 (1st Cir.1997).

None of these issues were raised in the district court and all we decide today is that the district court did not commit plain error in its charge. .The court charged as follows: For example, the individual needing the accommodation may not know enough about the equipment used by the employer or the exact nature of the work site to suggest an appropriate accommodation. Likewise, the employer may not know enough about the individual's disability or the limitations that disability would impose on the performance of the job to suggest an appropriate accommodation.

Where the missing information is of the type that can only be provided by one of the parties, failure to provide the information may be the cause of the breakdown and the party withholding the information may be found to have obstructed the process. This determination must be made in light of the circumstances surrounding a given case. If the employer does not obstruct the process, but instead makes reasonable efforts both to communicate with the employee and provide accommodations based on the information it possesses, the employer has made a good faith effort of accommodation.

An employer does not have the responsibility to go in search of information, such as medical advice, that is uniquely in the hands of the employee, particularly when the employee appears not to have been particularly responsive to requests for further information. . The dissent takes the position that Rizzo’s proof failed as a matter of law to establish that Rizzo suffered an adverse employment action.

We agree with the panel opinion {Rizzo II) that a reasonable jury could have concluded that when Rizzo was prohibited from driving the van, her hours were reduced by about 25% causing a similar reduction in her pay. This is sufficient evidence to establish an adverse employment action.