5th Cir. Pattern Jury Instr. (Civil) 11.12

212

If you find that Defendant [name] [specify adverse

employment action] Plaintiff [name] because of Plaintiff

[name]’s [specify disability], then you must find for

Plaintiff [name] unless Defendant [name] proves by a

preponderance of the evidence that Plaintiff [name]’s

[employment] [continued employment] [posed] [would

have posed] a direct threat to the health or safety of

Plaintiff [name] or others in the workplace.

A direct threat means a significant risk of substantial harm to the health or safety of Plaintiff [name] or

others in the workplace that could not be eliminated or

reduced by a reasonable accommodation.

7

To prove that Plaintiff [name] posed a direct threat,

Defendant [name] must prove that it performed an

individualized assessment of Plaintiff [name]’s present

ability

8

to safely perform the essential functions of the

job.

9

In determining whether Plaintiff [name] posed a

direct threat, you should consider: (i) how long the risk

will last; (ii) the nature and severity of the potential

harm; (iii) how likely it is that the harm will occur; and

(iv) the likely time before the potential harm occurs.

10

Defendant [name] must also prove that no reasonable

accommodation could be made that would eliminate or

reduce the risk so that it was no longer a significant

risk of substantial harm.

11

729 C.F .R. § 1630.2(r).

8In most cases, the timing of the assessment is not an issue. If that

is disputed, the assessment generally measure the plaintiff’s ability to

work safely at the time of the challenged employment action. 29 C.F .R.

§ 1630.2(r) (referencing “present” ability).

9Kapche v. City of San Antonio , 304 F .3d 493, 498 (5th Cir. 2002)

(citing 29 C.F .R. § 1630.2(r)).

10Rizzo v. Children’s World Learning Ctrs., Inc. , 84 F .3d 758, 763 (5th

Cir. 1996) (citing 29 C.F .R. § 1630.2(r)).

1129 C.F .R. § 1630.2(r).

11.12EMPLOYMENT CLAIMS

213

D. Defense to Discrimination Claim—Transitory

and Minor

12

(For a claim involving regarded-as disability)

If you find that Defendant [name] [specify adverse

employment action] Plaintiff [name] because Plaintiff

[name] was regarded as having [specify impairment],

then you must find for Plaintiff [name] unless Defendant [name] proves by a preponderance of the evidence

that the impairment Plaintiff [name] was regarded as

having was transitory and minor. It does not matter

what Defendant [name] believed. To succeed in this

defense, Defendant [name] must prove that the impairment Plaintiff [name] was regarded as having would be

both transitory and minor. “Transitory” means the

[specify impairment] would last six months or less.

OR

(For a claim involving an actual disability) If

you find that Defendant [name] [specify adverse employment action] Plaintiff [name] because of Plaintiff

[name]’s [specify disability], then you must find for

Plaintiff [name] unless Defendant [name] proves by a

preponderance of the evidence that Plaintiff’s impairment was minor. It does not matter what Defendant

[name] believed. To succeed in this defense, Defendant

[name] must prove that Plaintiff [name]’s [specify disability] actually was minor. The duration of the [specify

disability] does not matter.

12Although the Fifth Circuit has not directly ruled on this issue,

district courts have held that the employer bears the burden to prove that

the plaintiff’s impairment was transitory and minor as an affirmative

defense. See Dube v. Tex. Health & Human Servs., No. SA-11-CV-354-XR,

2011 WL 4017959, at *2 (W .D. Tex. Sept. 8, 2011); Mesa v. City of San

Antonio, No. SA-17-CV-654-XR, 2018 WL 3946549, at *13 & n.13 (W .D.

Tex. Aug. 16, 2018) (explaining that the Fifth Circuit has implicitly agreed

with Dube and summarizing other circuit decisions (citing Burton v.

Freescale Semiconductor , Inc., 798 F .3d 222, 230 (5th Cir. 2015)).