FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                     June 24, 2008
                   UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 DAVID M. JUSTICE,

       Plaintiff-Appellant,
 v.                                                      No. 07-8036
 CROWN CORK AND SEAL
 COMPANY, INC., a Pennsylvania
 corporation,

       Defendant-Appellee.



                                     ORDER


Before BRISCOE, McKAY, and LUCERO, Circuit Judges.


      Appellant’s motion to correct the opinion filed June 3, 2008, is granted. A

revised opinion, filed nunc pro tunc to June 3, 2008, is attached.



                                       Entered for the Court




                                       Elisabeth A. Shumaker, Clerk
                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                    June 3, 2008
                                    PUBLISH                    Elisabeth A. Shumaker
                                                                   Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT



 DAVID M. JUSTICE,

       Plaintiff-Appellant,
 v.                                                      No. 07-8036
 CROWN CORK AND SEAL
 COMPANY, INC., a Pennsylvania
 corporation,

       Defendant-Appellee.



        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF WYOMING
                     (D.C. No. 2:06-CV-66-J)


Richard C. LaFond (Jay Dee Schaefer, Laramie, Wyoming, with him on the
briefs), LaFond & Sweeney, LLC, Denver, Colorado, for Plaintiff-Appellant.

Tracy A. Miller (Christopher J. Meister with her on the brief), Ogletree, Deakins,
Nash, Smoak and Stewart, P.C., Phoenix, Arizona, for Defendant-Appellee.


Before BRISCOE, McKAY, and LUCERO, Circuit Judges.


BRISCOE, Circuit Judge.


      Plaintiff-Appellant David Justice filed suit in federal district court under

the Americans With Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., alleging
that his employer, Defendant-Appellee Crown, Cork, & Seal, Co. (Crown)

discriminated against him on the basis of his physical impairment. The district

court granted summary judgment to Crown, concluding that (1) Justice failed to

establish that he was disabled within the meaning of the ADA, a necessary

element of his prima facie case; and (2) the evidence showed that Justice posed a

“direct threat” to workplace safety. Justice now appeals. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we reverse the district court’s grant of

summary judgment to Crown and remand the case for further proceedings.

                                          I.

      Crown owns and operates a plant in Worland, Wyoming, that produces

aluminum beverage cans. Justice began working as an electrician at the Worland

plant in September of 1989, and worked there without difficulty for nearly ten

years. In his position as an electrician, Justice was required to work regularly

around large machines, including power presses, cutters, conveyors, ovens, spray

machines, unwinders, and lubricators. Justice was also required to use hydraulic

and electric lifts, climb ladders, and navigate catwalks suspended above the floor

of the plant, all of which were outfitted with safety rails. When working at

heights, Justice and other employees of the Worland plant used standard safety

equipment such as waist belts and harnesses.

      In March of 1999, Justice suffered a stroke that impaired his ability to see,

speak, walk, balance, and care for himself. Justice’s doctors withheld him from

                                          2
returning to work for a short period of time. After intense rehabilitative therapy,

Justice regained his ability to perform many of his life activities but suffered

permanent impairment to his ability to balance. Justice also continued to suffer

from vertigo, or a feeling of movement when there was none. Though these

conditions caused Justice to walk with an unstable gait and otherwise appear

unsteady, he was able to adapt and was in actuality more agile than he appeared,

experiencing little difficulty with walking and standing. He was eventually

released to return to work. The medical release set forth several restrictions: “He

should not work at heights on ladders or scaffolding. His balance is impaired.”

Aplt. App’x at 610.

      Upon Justice’s return to work, Crown initially did not require him to

engage in any activities in violation of his medical restrictions. Justice was

scheduled alongside other electricians who could perform any tasks that he could

not perform due to his restrictions (which occurred infrequently). He was also

permitted to work the day shift with reduced hours. While Justice was working

under these conditions, Crown did not observe any safety problems with his

performance and considered him “a valuable employee” who “could contribute to

the company.” 

      Justice’s treating neurologist, Dr. Roger Williams, reexamined him on an

annual basis. Following his May 5, 2000 examination of Justice, Dr. Williams

opined that Justice had reached maximum medical improvement, and

                                          3
recommended that Justice “continue work restriction[s] that relate to working at

unprotected heights, such as on ladders or scaffolding. Working on stepladders

no higher than six feet should be relatively safe.” 

After examining

Justice on May 14, 2001, Dr. Williams again recommended that Justice “avoid

working on tall ladders or at unprotected heights. Experience has shown he can

work effectively and safely on shorter ladders and platform lifts.” 

      These restrictions notwithstanding, Justice was able to work safely in the

Worland plant for approximately two years. A strike began on June 1, 2001, and

lasted over eight months, until February of 2002. During this time, Justice did

not work at the Worland plant. When Crown’s employees returned to work,

Crown initially refused to allow Justice and another employee with similar work

restrictions to return. After Justice’s union filed a grievance and Justice obtained

a new work release from Dr. Williams, Crown permitted Justice to return to work

in late March of 2002. Dr. Williams’s March 2002 work release again

recommended that Justice “should not work at unprotected heights. When on

extension ladders, scaffolding, cherry pickers, etc., [he] should be restrained with

a waist belt and strap.” Aplt. App’x at 614.

      After Justice returned to work at the plant, he was placed on the night shift,

rather than the day shift he worked before the strike. Justice was also assigned a

new supervisor, Frank Pacheco, who had not previously supervised Justice

directly. Pacheco was unaware of the medical restrictions placed on Justice, and

                                          4
asked Justice to perform tasks that may have been outside his restrictions, such as

accessing heights without protection. After observing Justice experiencing what

Pacheco believed to be difficulties with balance, Pacheco wrote a memorandum

on May 7, 2002, summarizing his observations. Pacheco also had a face-to-face

meeting with the Plant Manager and Plant Supervisor about his concerns. 1

      In early October of 2002, Richard Backlund and Brian Rogers, two of

Crown’s Area Managers, visited the plant. While there, they observed Justice

acting in an unsteady manner, swaying, and having difficulty with his balance.

Upon learning that Justice had previously been observed acting in a similar

manner, the men became concerned for his safety.

      On October 15, 2002, Backlund and Rogers held a conference call with

several Crown employees, including the Plant Manager and Richard Mangus, the

Worland plant’s Department Manager for Human Resources, to review Justice’s

problems. During the call, they discussed their belief that Justice may pose a

danger to himself and others at the plant. Following the conference call, Mangus

met with Justice and informed him of Crown’s concern that although he had not

necessarily been working unsafely, “there was potential for injury to himself and

others” due to Justice’s vertigo and balance problems. 

Justice was

then placed on an involuntary leave of absence pending further medical

      1
        Pacheco and Mike Snyder, another supervisor, also noted other problems
with Justice’s performance, such as memory loss, the failure to complete projects
in a timely manner, and general tiredness.

                                         5
evaluation. Crown scheduled an appointment for Justice with a

neuropsychologist, but Justice did not attend, stating that he wanted to see Dr.

Williams first. Dr. Williams reexamined Justice on October 31, 2002, and

concluded that Justice’s “minor neurological complaints do not seem to limit his

vocational abilities. It is still my opinion that he should not put himself at

unnecessary risk, such as working at unprotected heights or in unprotected

fashion around hazardous machinery.” 

      Following Dr. Williams’s examination, Justice attended a December 2,

2002 functional capacity evaluation (FCE) with physical therapist Rhonda Wakai.

Ms. Wakai prepared an initial report of the FCE on December 9, 2002. Though

Justice generally performed well on the tests that Ms. Wakai administered, she

did note some concerns: “it is recommended that Mr. Justice utilize safety

equipment as is standard to the industry when accessing heights, particularly

when balance is required. This would include open beams, scaffolding, ladders,

and other similar situations. This is in line with Dr. Williams’ recommendations,

as well.” Aplt. App’x at 117. Based on her examination, Ms. Wakai concluded

that Justice was able to work at the “very heavy” Physical Demand Level for an

eight hour day according to the United States Department of Labor’s Dictionary

of Occupational Titles. 

124.

      Because Justice’s job description was not available at the time of the FCE,

Ms. Wakai was unable to draw any conclusions about his ability to physically

                                           6
perform his job. After providing Ms. Wakai with a letter purporting to list the

physical demands of Justice’s job, Crown invited her to perform an on-site

evaluation of Justice’s workplace. Accompanied by Richard Mangus, Ms. Wakai

toured the Worland plant and observed the areas where electricians were required

to work. Whether this tour accurately outlined the requirements of the electrician

position is unknown. Neither Justice nor a representative of his union

accompanied Ms. Wakai on the tour, and Ms. Wakai did not see an electrician

performing the tasks associated with the position during the tour. Following her

visit to the Worland plant, Ms. Wakai prepared a report detailing the results of

her on-site evaluation.

      Ms. Wakai’s visit to the Worland plant revealed a number of potential

hazards that challenged her perception of her footing and her sense of balance:

      slippery footing, the multiple level changes throughout the physical
      plant, the frequent tight turns in the catwalk area, the frequent need
      to crouch under structures, and the occasional need to crouch and
      make a turn at the same time, bouncy walking surfaces, protruding
      obstacles, and particularly in one area, the visual distraction of
      having a catwalk that is a grating type material with a very quickly
      moving object underneath . . . .

Aplt. App’x at 126-27. Ms. Wakai noted that “the operators have taken many

precautions to ensure worker safety.” 

Nonetheless, she recommended

“that Mr. Justice be encouraged to seek employment that presents fewer obstacles

to his physical safety.” 

left the final approval or disapproval of

Justice’s workplace with Crown’s corporate medical director, Dr. David Spratt.

                                          7
      Dr. Spratt examined Justice’s medical records, but did not personally

evaluate Justice. After examining Justice’s records, Dr. Spratt concluded “that

Mr. Justice should not work in an assignment that requires him to maintain

balance, work at heights, nor work near moving equipment.” Aplt. App’x at 571.

He did not, however, reach a conclusion as to whether Justice could be permitted

to continue his job as an electrician in the Worland plant.

      The management of Crown’s Worland plant held a meeting with Justice and

the president of his local union on February 10, 2003, to discuss the results of the

examinations with him. Justice was informed that “he was disqualified from any

assignment that requires working at heights or around moving equipment.” 

Justice was asked what job he felt he could perform in the plant under those

limitations and said that he felt he could perform any job available. Though

Justice’s experience did, in fact, qualify him to perform any job in the plant, he

was assigned the position of janitor beginning on February 17, 2003. The

position of janitor was the lowest-ranking position in the plant and paid

substantially less than Justice had earned as an electrician.

      On April 8, 2003, two months after being reassigned to the position of

janitor, Justice filed a complaint with the EEOC. After conducting an

investigation into Justice’s complaint, the EEOC issued a letter on August 31,

2004, finding reasonable cause to believe that Crown had discriminated against

Justice in violation of the ADA. When attempts to conciliate the parties failed,

                                          8
the EEOC issued a right-to-sue letter on December 19, 2005. Justice filed this

suit in federal district court on March 14, 2006.

      Crown moved for summary judgment, arguing that Justice had presented no

evidence that he was disabled under the ADA, an essential element of his prima

facie case. In the alternative, Crown argued that the evidence showed that Justice

posed a direct threat to workplace safety, a defense to his ADA claim. On March

30, 2007, the district court granted summary judgment to Crown, concluding that

Justice had not shown he was disabled within the meaning of the ADA, as he had

not shown that Crown “regarded him as disabled or suffering an impairment that

substantially limits one or more of his major life activities.” Aplt. App’x at 812-

13. In addition, the court concluded that “Crown rightly considered that [Justice]

was a direct threat to himself and others in the workplace.” 

                                          II.

      We review a grant of summary judgment de novo, “taking the facts and the

reasonable inferences to be drawn from them in the light most favorable to the

nonmoving party.” Trainor v. Apollo Metal Specialties, Inc., 

, 979

(10th Cir. 2002). Applying the same legal standard as the district court, we will

affirm “if the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The

movant “bears the initial burden of presenting evidence to show the absence of a

                                          9
genuine issue of material fact”; if this burden is met, it then becomes the

responsibility of the non-moving party “to set forth specific facts showing there is

a genuine issue for trial.” 

. “Where the record taken as a

whole could not lead a rational trier of fact to find for the non-moving party,

there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 

, 587 (1986) (quoting First Nat’l Bank of Ariz. v. Cities Serv.

Co., 

, 289 (1968)).

A.    Disability under the ADA

      A prima facie case of ADA discrimination consists of three elements:
      the plaintiff (1) is a disabled person as defined by the ADA; (2) is
      qualified, with or without reasonable accommodation, to perform the
      essential functions of the job held or desired; and (3) suffered
      discrimination by an employer or prospective employer because of
      that disability.

Zwygart v. Bd. of County Comm'rs, 

, 1090 (10th Cir. 2007)

(citation omitted). Crown sought (and the district court granted) summary

judgment on only the first of these elements, arguing that Justice failed to show

that he was a disabled person as defined by the ADA. Under the ADA,

      [t]he term “disability” means, with respect to an individual—
             (A) a physical or mental impairment that substantially limits
             one or more of the major life activities of such individual;
             (B) a record of such an impairment; or
             (C) being regarded as having such an impairment.

42 U.S.C. § 12102(2). In claiming that he has a disability, Justice did not assert

before the district court and does not now assert that either of the first two parts



                                          10
of this definition apply, i.e., that he is actually disabled or that he has a record of

actual disability. Rather, he argues only that Crown regarded him as having a

substantially limiting impairment under subsection (C).

      An individual may qualify as disabled under the “regarded as” subsection

in one of two ways: “(1) a covered entity mistakenly believes that a person has a

physical impairment that substantially limits one or more major life activities, or

(2) a covered entity mistakenly believes that an actual, nonlimiting impairment

substantially limits one or more major life activities.” Sutton v. United Air Lines,

Inc., 

, 489 (1999); see also 29 C.F.R. § 1630.2(l) (defining “regarded

as having such an impairment”). In either event, our focus is on an employer’s

subjective state of mind: did the employer mistakenly believe that the plaintiff

was substantially limited in performing a major life activity? 

. In answering this question, “[w]e analyze only the major life activity or

activities asserted by the plaintiff.” Rakity v. Dillon Cos., 

, 1158

(10th Cir. 2002) (citing Doyal v. Okla. Heart, Inc., 

, 495-96 (10th

Cir. 2000)). In the present case, Justice argues that Crown regarded him as

substantially limited in the major life activity of working. 2


      2
        On appeal, Justice asserts for the first time that Crown believed him to be
substantially limited in the major life activity of “balance.” Aplt. Br. at 25-28.
Before the district court, Justice asserted only that Crown regarded him as
substantially limited in the major life activity of working, thereby abandoning any
reliance on other major life activities. See Aplt. App’x at 418-19. We thus
consider only the major life activity of working. Similarly, Justice’s arguments
                                                                            (continued...)

                                           11
      To survive summary judgment on this claim, Justice must present some

evidence that Crown believed that he was “significantly restricted in the ability to

perform either a class of jobs or a broad range of jobs in various classes as

compared to the average person having comparable training, skills, and abilities.”

EEOC v. Heartway Corp., 

, 1162 (10th Cir. 2006) (quoting 29

C.F.R. § 1630.2(j)(3)(i)). “[I]t is particularly difficult for a plaintiff to prevail on

this type of claim,” which “‘takes a plaintiff to the farthest reaches of the ADA.’”

v. Campbell Soup Co., 

, 709 (6th Cir. 2001)). It is

not, however, “an insurmountable showing.” 

We conclude that based

on the record evidence, a reasonable factfinder could infer that Crown

misapprehended the nature of Justice’s impairment and the risks it posed, and so

believed him to be significantly restricted in his ability to perform either a class

of jobs or a broad range of jobs in various classes.

      Crown argued, and the district court concluded, that “there is no evidence

that the employer regarded Justice as disabled from performing the class of jobs,

‘electrician,’ in general.” Aplt. App’x at 813. Our reading of the record, though,

reveals evidence to the contrary. Richard Mangus, who took part in the decisions

to suspend and ultimately reassign Justice, testified that Crown’s initial safety


      2
          (...continued)
that Crown committed “per se” violations of the ADA or constructively
discharged him were not presented to the district court, and we do not consider
them here.

                                           12
concerns arose because “[a]s an electrician, [Justice] is subject to a lot of high

voltages, electricity.” 

Mangus admitted that this was a concern

for any electrician, but stated that specific concerns arose with Justice because

“we didn’t feel like he could work safely . . . [b]ased on his documented vertigo

and balance.” 

Similarly, Bill Decker, who was Plant Supervisor at

the time of the relevant events and also took part in the adverse employment

decisions, gave deposition testimony about his perception of Justice’s “inability

to work on [high-voltage electrical] cabinets.” 

In Decker’s opinion,

Justice was unable to work on such cabinets “being that he was not steady enough

to work in them.” 

“[H]e was too unsteady,” in Decker’s view,

“to even be around current like that.” 

      These statements suggest that Crown at least initially believed that Justice’s

balance and vertigo problems could disqualify him from employment as an

electrician in general—or, for that matter, from any employment where he might

have to work with high voltages or electrical current. The statements undercut

Crown’s argument that it only believed that “Justice was unable to perform the

job of electrician in [Crown’s] plant” but could “work as an electrician in other

environments.” Aple. Br. at 19-20. Decker’s and Mangus’s statements do not

relate specifically to the plant environment, but seem to indicate a broader fear

that Justice’s balance problems posed a safety hazard when working around

electrical current in any environment. For this reason, we distinguish the present

                                          13
case from the Supreme Court’s decision in Murphy v. United Parcel Service, Inc.,

, 524 (1999), which held that an employer’s belief that the plaintiff

is incapable of performing a particular job only under certain conditions does not

show that the employer believed the plaintiff to be incapable of performing an

entire class of jobs.

      Subsequent medical reports from Dr. Williams, Rhonda Wakai, and Dr.

Spratt, none of which indicated that Justice had such a limitation, might have

disabused Crown of that notion. There is, however, no indication that this was

the case. In fact, there is evidence suggesting that Crown’s concerns were not

assuaged by the medical reports. After Dr. Williams and Ms. Wakai had issued

their reports on October 31 and December 2, 2002, respectively, Mangus wrote to

Ms. Wakai and gave her a description of the job duties of an electrician “[i]n

order to get a determination regarding [Justice’s] physical ability to safely

perform his job functions.” Aplt. App’x at 634. The letter seemed to presuppose

that Justice’s balance problems disqualified him from electrical work, describing

the “[c]onstant requirement for good balance and steady posture due to

requirements to perform work in energized electrical cabinets etc. . . . .” 

this evidence indicates that Crown believed that Justice’s balance

problems posed a threat when he was working around electricity, a belief

unsupported by any of the medical opinions in the record. If Justice were in fact

incapable of working around electricity due to this perceived impairment, this

                                          14
would “significantly restrict” his ability to perform an entire class of jobs

utilizing his skills, i.e., those jobs in the electrical field. Cf. 

n.6 (providing a list of classes of jobs taken from other circuit court

cases: “truck driving, assembly line jobs, manufacturing jobs, welding jobs, and

animal care jobs” (quotation marks and citations omitted)). We therefore

conclude that Justice has presented evidence supporting an inference that Crown

mistakenly believed him to be substantially limited in the major life activity of

working.

      Also supporting this conclusion is evidence that Crown believed that

Justice’s balance problems significantly restricted his ability to perform a broad

range of jobs. Richard Mangus admitted there were “only about two jobs in the

plant” he thought Justice could do. Aplt. App’x at 538:2-3. This is consistent

with Crown’s later refusal to consider Justice for openings at the plant, all of

which were available to someone with his level of skill and experience. While

this action was taken in 2005, three years after the events at issue in this case, it

may nonetheless shed light on Crown’s state of mind at the time of those events.

Cf. 

n.9 (“Even though [the employer’s] comments . .

. took place four months after [the plaintiff] was terminated, a jury could

reasonably infer that those comments were indicative of his beliefs at the time

that he terminated [the plaintiff].”). The Worland plant does not, of course,

represent a microcosm of all possible jobs, but a reasonable finder of fact could

                                           15
infer from Crown’s determination that Justice could only do one or two jobs

among the variety of jobs in the plant that Crown believed that Justice was unable

perform “a broad range of jobs in various classes.” 

(citation and

internal quotation marks omitted).

      Crown argues that the foregoing evidence is effectively countered by other

evidence in the record. Citing McGeshick v. Principi, 

, 1151 (10th

Cir. 2004), and Rakity v. Dillon Companies, 

, Crown asserts

that the fact that it offered Justice another position in the factory shows that it did

not regard him as substantially limited in the ability to work. While this evidence

is certainly relevant to this inquiry, it does not support summary judgment in this

case for two reasons.

      First, the fact that Crown was willing to consider Justice for a single job

does not show that Crown considered him unlimited in the major life activity of

working. As noted, to meet his burden Justice must show that Crown believed he

was restricted in performing either a “class of jobs” or a “broad range of jobs in

various classes.” 

(citation and internal quotation

marks omitted). Neither requires a belief that Justice is disqualified from every

job imaginable. Crown’s belief that Justice is able to perform a single job, or

even a narrow subset of jobs, is entirely consistent with a belief that he is

nonetheless unable to perform an entire “class of jobs” or a “broad range of jobs.”

The limited job offer in this case stands in contrast to McGeshick, in which the

                                           16
evidence showed that the employer considered the plaintiff disqualified from only

the particular job at issue, housekeeping aid, due to the physical requirements of

the job. 

. There was no indication that the

employer considered the plaintiff disqualified from the entire class of similar

housekeeping jobs, and the employer invited the plaintiff to apply for “other jobs

. . . for which he might be qualified.” 

Thus, the employer

considered a number of jobs in its operation to be available to the plaintiff despite

his limitations; in the present case, by contrast, the evidence indicates that Crown

considered there to be at best only one or two jobs still available to Justice in the

Worland plant.

      Second, Crown’s offer of a janitorial position does nothing to rebut the

evidence suggesting that Crown believed Justice’s balance problems rendered him

incapable of performing the broad class of jobs involving electrical work. This

distinguishes the present case from Rakity, in which the plaintiff’s employer

refused to consider him for a position as an “all purpose” grocery clerk because

the requirements of the job included lifting in excess of the plaintiff’s medical

restrictions. 

. However, the employer continued to be

willing to employ the plaintiff as a “general” grocery clerk, which “amount[ed] to

undisputed evidence” that the employer did not regard the plaintiff “as unable to

perform a broad class of grocery clerk jobs.” 

Thus, the crucial fact

in Rakity was that the job offered to the plaintiff was in the same “broad class” as

                                          17
the job from which he had been disqualified. Here, while Crown offered Justice

another job, the job did not fall within the same class of jobs, and thus sheds no

light on whether Crown considered Justice “significantly restricted in the ability

to perform” this class of jobs. 

(citation and internal

quotation marks omitted).

      Crown also argues that by removing Justice from his position as an

electrician, it was merely acknowledging his medical restrictions. This court has

repeatedly held that “[w]here the recognition of Plaintiff’s limitations is not an

erroneous perception, but is instead a recognition of fact, a finding that Plaintiff

was regarded as disabled is inappropriate.” Lusk v. Ryder Integrated Logistics,

, 1241-42 (10th Cir. 2001) (citing Hilburn v. Murata Elecs. N. Am.,

Inc., 

, 1230 (11th Cir. 1999)). We also find this argument

unconvincing. To begin, assuming Crown believed that it was unsafe for Justice

to be around electricity, as the evidence suggests, the evidence indicates that this

belief was not a “recognition of fact,” but an “erroneous perception.” 

conclude that Crown’s demotion of Justice from electrician to

janitor was based on his actual medical restrictions rather than this erroneous

perception about his abilities would require us to resolve a disputed issue of

material fact in Crown’s favor. Crown argues that Justice’s medical restrictions

precluded him from working as an electrician because, under its version of the

facts, the Worland plant was full of obstacles such as unprotected heights and

                                          18
hazardous machinery. While this may be true, there is contrary evidence in the

record from which a finder of fact could conclude that these hazards were

imagined or exaggerated, and that Crown’s purported reliance on Justice’s

medical restrictions was a pretext masking Crown’s irrational fears about

Justice’s condition. 3

      There were two main restrictions imposed on Justice: he could not work at

unprotected heights and he could not work around “hazardous” or “moving”

machinery or equipment. Though the restriction against working at unprotected

heights was in place long before 2002, Justice was able to work safely prior to

that time, leading to the inference that he was able to do the electrician job

despite this restriction. The only medical professional to express an opinion to


      3
        This discussion also has some bearing on the second and third elements of
Justice’s prima facie case: whether the plaintiff is qualified to perform the
essential functions of the job, or whether the employer’s adverse decision is the
product of disability discrimination. See 

. Because the
parties address these concerns at the first element, though, we also do so here.
Cf. 

(“Because, under the ‘regarded as’ prong, [the
plaintiff’s] prima facie showing that he is disabled turns on the employer’s state
of mind and how it thought [the plaintiff’s] condition affected his performance as
an employee, evidence of the employer’s state of mind that would ordinarily be
used to prove motive or discriminatory intent may also be probative of [the
plaintiff’s] status as a person with a disability as defined by the ADA.”). In
addition, while we may affirm the district court’s grant of summary judgment on
any grounds supported by the record, we believe that a material dispute of fact
remains as to both those elements. As is suggested in the discussion above, there
is evidence that (1) Justice was qualified to work as an electrician in the plant
notwithstanding his medical restrictions; and (2) Crown’s removal of him from
that position was due to unsubstantiated concerns about the dangers posed by his
balance problems.

                                         19
the contrary was Rhonda Wakai. Ms. Wakai’s opinion that Justice should be

encouraged to seek employment elsewhere is by far the strongest evidence in

Crown’s favor, as it speaks directly to Justice’s ability to perform the duties of an

electrician in the Worland plant, and neither Dr. Williams nor Dr. Spratt gave an

opinion directly on this issue. 4

      Ms. Wakai only expressed this opinion, however, after touring the plant

with Richard Mangus, one of the very supervisors who had expressed concerns

about Justice’s safety. This casts doubt on whether the tour accurately outlined

the requirements of the electrician position, particularly because neither Justice

nor a union representative accompanied Ms. Wakai on the tour, nor did Ms.

Wakai see an electrician performing the tasks associated with that position during

the tour. Two long-time employees of the plant expressed their view that Justice

would not be required to access unprotected heights in his position as an

electrician, or in any of the positions for which he was passed over. See Aplt.

App’x at 439-41 (Stidolph Aff.); 

(Heckert Aff.). The objectivity of

the tour, and consequently Ms. Wakai’s opinion, is thus subject to dispute.

      The restriction against working around moving equipment was imposed by

Dr. Williams and reaffirmed by Dr. Spratt, Crown’s corporate physician. Neither

specifically expressed an opinion as to whether this affected Justice’s ability to

      4
       Notably, Ms. Wakai never specifically stated that Justice was incapable of
working as an electrician at the Worland plant, but left the final approval or
disapproval of Justice’s workplace with Dr. Spratt. Aplt. App’x at 127.

                                          20
perform the job of an electrician in the Worland plant. Rather, it was Crown

itself, through its management, which reached this conclusion. The conclusion of

Crown’s management conflicts with the sworn statements of employees of the

Worland plant that employees never had to work around machinery in an

unprotected fashion and that any moving parts on the machinery were covered by

guards. See 

(Stidolph Aff.); 

(Heckert Aff.). In

addition, Justice testified that in his janitorial position, he was occasionally in

close proximity to moving equipment such as lathes, mills, and drill presses,

indicating that Crown may not have sincerely believed that this machinery was

“hazardous” or posed a danger to Justice. 

To the extent that these

assertions conflict with other evidence in the record, this is an issue for the finder

of fact to resolve. Cf. D’Angelo v. ConAgra Foods, Inc., 

, 1228-29

n.5 (11th Cir. 2005) (holding that where an employer’s decision is based on an

erroneous application of plaintiff’s medical restrictions to the work environment,

a material issue of fact remains as to whether the employer regarded the plaintiff

as disabled).

      Based on the foregoing, we conclude that it would be premature to grant

summary judgment on the basis that Crown did not regard Justice as “disabled”

within the meaning of the ADA. A reasonable jury could conclude that Crown

thought that Justice’s balance problems substantially limited his ability to perform

the class of jobs constituting electrical work or a broad range of jobs across

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various classes, and that Crown’s purported reliance on the opinions of medical

professionals was a pretext used to cover for this unsubstantiated belief.

B.    Direct Threat

      “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.”

Borgialli v. Thunder Basin Coal Co., 

, 1290-91 (10th Cir. 2000)

(citing Den Hartog v. Wasatch Acad., 

, 1088 (10th Cir. 1997)); see

42 U.S.C. § 12113(a)-(b). “The term ‘direct threat’ means a significant risk to the

health or safety of others that cannot be eliminated by reasonable

accommodation.” 42 U.S.C. § 12111(3).

      The determination that an individual poses a “direct threat” shall be
      based on . . . a reasonable medical judgment that relies on the most
      current medical knowledge and/or on the best available objective
      evidence. In determining whether an individual would pose a direct
      threat, the factors to be considered include:

             (1) The duration of the risk;

             (2) The nature and severity of the potential harm;

             (3) The likelihood that the potential harm will occur; and

             (4) The imminence of the potential harm.

29 C.F.R. § 1630.2(r). Though the burden of showing that an employee is a direct

threat typically falls on the employer, “where the essential job duties necessarily

implicate the safety of others, then the burden may be on the plaintiff to show that

[he] can perform those functions without endangering others.” McKenzie v.

                                         22
Benton, 

, 1354 (10th Cir. 2004) (quotation marks, alterations, and

citation omitted).

      In the present case, it may be appropriate to assign Justice the burden of

showing that he does not pose a direct threat, as he personally acknowledged that

the position of electrician in the Worland plant can be “deadly” and that “lives are

at stake.” Aplt. App’x at 151. Even so, based on the same evidence already

noted in the preceding section, we conclude that a triable issue of material fact

exists as to whether Justice actually posed a direct threat to plant safety. There is,

as noted, a question whether Ms. Wakai’s opinion can be considered “objective.”

In addition, there is much evidence indicating that Justice’s restrictions, as

recognized by Drs. Williams and Spratt, may not have limited his ability to

perform safely in his environment and that Crown’s application of the medical

judgments to the workplace was unreasonable. 5 Applying the factors set forth in


      5
        The district court, in ruling on Crown’s motion for summary judgment,
concluded that it was “not in a position to second-guess the judgment of those
medical professionals or the employer, Crown, in deciding what would be
acceptable safety risks to Justice and/or others in the Worland plant.” Aplt.
App’x at 815. This presents several difficulties, which ultimately lead us to
disagree with the district court’s ruling. First, allowing the case to go to a jury
would not require second-guessing the medical judgments involved—it would
only require second-guessing Crown’s application of those judgments to the
workplace, or, in Ms. Wakai’s case, examining the objectivity of the facts that
formed the basis of her opinion. Second, to hold that one cannot second-guess an
employer’s conclusion regarding the safety risks posed by an employee would
eviscerate the ADA’s protections by permitting the employer to assert in nearly
every case that it believed the employee’s medical limitations posed a credible
threat to his safety or the safety of others.

                                          23
29 C.F.R. § 1630.2(r), while the risk of harm may have been permanent and the

severity of the harm great, a reasonable jury could conclude that the likelihood of

the harm was extremely small and that Justice therefore did not pose a “direct

threat” to the safety of himself or others in the Worland plant.

                                         III.

      The district court’s grant of summary judgment to Crown is REVERSED

and the case is REMANDED to the district court for further proceedings.




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