USCA1 Opinion
United States Court of Appeals
For the First Circuit
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No. 96-1837
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, Appellant,
v.
AMEGO, INC.,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
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____________________
Before
Cyr and Lynch, Circuit Judges,
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and McAuliffe,* District Judge.
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Karen M. Moran, Attorney, Equal Employment Opportunity
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Commission, with whom C. Gregory Stewart, General Counsel, Gwendolyn
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Young Reams, Associate General Counsel, and Vincent J. Blackwood,
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Assistant General Counsel, were on brief, for appellant.
Mary Jo Hollender, with whom Hollender & Carey, L.L.P., was on
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brief, for appellee.
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April 7, 1997
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*Of the District of New Hampshire, sitting by designation.
LYNCH, Circuit Judge. Amego, Inc., is a small not-
LYNCH, Circuit Judge.
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for-profit organization which cares for severely disabled
people suffering from autism, retardation, and behavioral
disorders. It serves twenty-five to thirty clients,
including six in a residential program in Mansfield,
Massachusetts, where Ann Marie Guglielmi was employed as a
Team Leader. The Team Leader position required her to be
responsible for the care of these disabled clients, including
the responsibility of administering vital medications to
them. After an unresolved investigation of improprieties in
the administering of medication to patients at a related
facility, Amego learned that other staff felt Guglielmi was
not performing her job adequately and was putting patients at
risk. Amego also learned that Ms. Guglielmi had twice
attempted to commit suicide within the previous six weeks by
overdosing on medications. This, Amego decided, meant that
Guglielmi could not safely dispense medications, an essential
job function, and that there was no other job reasonably
available to her. Her employment was thus terminated.
The Equal Employment Opportunity Commission
("EEOC") sued Amego on behalf of Guglielmi under the
Americans with Disabilities Act ("ADA"), 42 U.S.C. 12101 et
__
seq. The district court entered summary judgment against the
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EEOC, holding that the EEOC had not made out a prima facie
case that Guglielmi was an otherwise "qualified" individual,
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that an accommodation could be reasonably made, and that
there was discrimination "because of" her disability.
The EEOC appeals and argues that the question of
whether an employee poses a significant risk to other
individuals in the workplace is an affirmative defense on
which the employer bears the burden of proof and is thus not
part of the plaintiff's burden that the employee is
qualified. Those issues of qualification and risk, the EEOC
says, are matters for the jury to resolve at trial and may
not be resolved on summary judgment. The EEOC also invites
this court to hold that "adverse employment action taken
because of conduct related to a disability is tantamount to
action taken because of a disability itself" for purposes of
the ADA.
We affirm the judgment of the district court.
I.
The following facts are undisputed.
Founded in 1972 by parents of autistic individuals,
Amego receives public funding and is licensed by two state
agencies. A condition of licensing is that Amego provide
conditions that ensure the safety and well-being of its
clients. Amego maintains a very low client-to-staff ratio,
usually one staff member to two clients. One particularly
aggressive client required supervision by three staff
members, eighteen hours a day.
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Amego has a policy of not rejecting those who seek
its help. Most of its clients engage in aggressive and self-
injuring behavior, including self-mutilation. Many have been
rejected by, or discharged from, other agencies. Most
clients are on prescription medications, and in June of 1992,
all clients at the Mansfield residence, save one, were
receiving prescription medications.
Consistent with its philosophy of attempted
integration, Amego provides its clients with access to
community activities on a regular basis. Residential clients
are transported daily to the Day Treatment Program, where
they frequently are taken by direct care staff to stores,
bowling alleys, banks, and the like.
In September 1990, Amego hired Guglielmi as a
Behavior Therapist. She was then about 21 years old and did
not represent herself to have any disability. In January
1991, she was diagnosed as bulimic and clinically depressed;
however, she did not tell her employer about these conditions
until after her first suicide attempt, over a year after the
diagnosis. She was prescribed Prozac in 1991, but it only
partially alleviated the depression. She stopped taking the
drug in April. In the fall of 1991, she started living with
her boyfriend, David Andrade, who worked at a different Amego
residence. That relationship was fraught with problems.
Andrade used cocaine; Guglielmi, however, says she did not
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confirm her suspicions of that until late June 1992. In
early 1992, she started seeing a social worker, Margaret
Posever, for bimonthly therapy sessions.
Earlier, in July 1991, Guglielmi was promoted to
the position of Team Leader at the Mansfield residence. The
essential functions of that position included: supervising
the day-to-day implementation of individual clinical,
educational, and vocational programs and data collection for
all programs; serving as a role model for staff in all areas
of client programming, client services, and professional
practice; assessing staff performance, providing additional
training, support, and counseling as appropriate; ensuring
that Amego's policies and procedures on clients' rights were
implemented and documented; responding appropriately in
crisis situations; and administering and documenting the use
of prescribed medications.
On March 4, 1992, Guglielmi received a performance
evaluation which said she was an "exceptional" Team Leader.
The evaluation was based on her performance through January
1992. In the spring of 1992, Guglielmi applied for promotion
to the position of Program Coordinator for the Mansfield
residence. The promotion instead went to Kristen Stone.
Stone assumed her new responsibilities on May 4, 1992.
That same day, Guglielmi deliberately took an
overdose of nonprescription sleeping pills which she had
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purchased for that purpose. After taking the pills, she told
Andrade what she had done; he took her to the emergency room.
She was transferred to a psychiatric hospital and released
later that evening. She told health care workers that she
attempted suicide because she was upset by problems in her
relationship with her boyfriend, her failure to receive the
promotion, and other work-related stress. She was readmitted
to the psychiatric hospital on May 6, 1992, and stayed there
until May 12 because of concerns about her safety. On the
day of her readmission to the hospital -- two days after her
suicide attempt -- Guglielmi was not able to "contract for
safety" with her therapist Posever. Guglielmi told Posever
that even if she were to so contract, her mood was in such
flux that she could not be sure she would not hurt herself
anyway. A week after returning to work, and again two weeks
later, she told Posever that she felt suicidal.
When Guglielmi returned to work on May 13, she told
her supervisor only that she had been hospitalized for
bulimia and depression. She did not say that she had
attempted suicide. She asked her supervisor to modify her
work schedule so that she could attend therapy twice or
thrice weekly. Her supervisor agreed to this accommodation.
However, Guglielmi stopped going to the therapy sessions
after a few weeks.
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On May 21, 1992, Guglielmi began seeing Dr. Kenneth
Levin for psychopharmacological treatment. He diagnosed her
as suffering from bulimia and major depression, prescribed
Prozac and trazodone, and saw her to monitor her use of
medication. Prozac was one of the medications regularly
administered to Amego's clients. On June 4, 1992, she told
Dr. Levin that she had experienced periodic feelings of
increased depression, including a period when she
contemplated overdosing. She assured Dr. Levin that if such
thoughts recurred, she would not act on them but would inform
her boyfriend or a health care provider. She did not keep
her word.
On June 13, Guglielmi deliberately overdosed again,
this time using her prescription medications, Prozac and
trazadone, as well as aspirin. After taking the overdose,
she called the Plainville police, who took her to the
hospital. She was released on June 15, 1992. She told her
health care providers that she was not really depressed when
she overdosed but wanted to provoke a reaction from her
boyfriend. When Guglielmi returned to work on June 17, she
again did not tell her employer that she had attempted
suicide.
On the day Guglielmi returned to work, the
Executive Director of Amego, Caryn Driscoll, and the Director
of Administrative Services, Karen Seal, met with David
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Andrade about his job performance problems. During this
meeting, Andrade mentioned rumors that clients were being
drugged at the Fales Road residence. He worked at that
location regularly, and Guglielmi worked there occasionally.
Around that time, Driscoll learned that Klonopin, one of the
medications prescribed for clients, was either missing or was
being used at an accelerated rate at the Fales Road
residence. Some cocaine users take Klonopin as an antidote,
to calm them down from the effects of cocaine.
Amego investigated and found that four of the
clients at the Fales Road residence (two of whom should not
have had Klonopin at all) had blood levels of Klonopin which
were too high. Amego asked any employees who had pertinent
information to step forward. Guglielmi did so and was
interviewed on June 26 by Driscoll, Amego's Human Rights
Officer, and a private investigator. During the interview,
Guglielmi focused on her relationship with Andrade, who she
feared might be targeted in the investigation. She said that
she was suffering from bulimia and depression and revealed
for the first time her two recent suicide attempts. In an
attempt to explain Andrade's performance issues, she said
that he had helped her when she attempted suicide two times
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by overdosing on both prescription and over-the-counter
drugs.1
Earlier, on June 5, a shift supervisor at the
Mansfield residence, Chester Millet, had noticed that the
medication log was missing. He conducted a thorough search,
including behind the medication cabinet, and did not find it.
Guglielmi also helped look for it. On the same day of her
interview with Driscoll, June 26, Guglielmi reported that she
had found the missing medication log. She said the log had
been behind the medication cabinet, between the cabinet and
the wall. Millet told Driscoll that he had previously looked
there and had not seen it. Although Driscoll did not
initially consider Guglielmi under suspicion for the improper
drugging of patients at Fales Road, she and other staff
members found the discovery of the book by Guglielmi to be
peculiar. A review of the medication log showed that the
supply of drugs on hand at the Mansfield residence was
excessive. It was not possible to determine from the log
whether medications were missing.
On June 26, Driscoll spoke with the Plainville
police about her concerns about the drugging of patients at
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1. During the interview, Guglielmi was asked whether she had
observed or suspected that Andrade was using cocaine. She
answered "no" to both questions. The latter answer was not
true. Discovery in this case revealed that she had spoken to
her therapist about her suspicions of her boyfriend's cocaine
use as early as May 27, 1992.
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Fales Road. The police told Driscoll that they found pills,
initially thought to be Klonopin, in Guglielmi's apartment on
the night they responded to her suicide call.
Around June 28, Driscoll received a call from
Carlos Andrade, an Amego employee and David Andrade's
brother. He told her that staff members felt Guglielmi's job
performance was suffering and had asked him to do something
about it. He reported that staff members were uncomfortable
with her job performance, that she was erratic in behavior,
had mood swings, seemed to be focussed on her personal
problems, that she was seen walking outside and crying, that
she was heard fighting on the phone with David Andrade, and
that she was self-absorbed and unable to concentrate on her
job.
Carlos Andrade also passed on that Millet, the
shift supervisor and one of the most senior staff members at
the Mansfield residence, was concerned that Guglielmi had
suddenly handed him the drug log, saying that she had found
it in the residence when he had searched everywhere for it.
Driscoll confirmed Carlos Andrade's report with Millet, who
had never before complained about another employee. Carlos
Andrade felt that Guglielmi was not performing her job safely
and was putting clients at risk. Driscoll knew there was no
way to prevent Guglielmi from having access to medication
while she worked at Amego.
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A few days later, on July 1, Driscoll informed
Guglielmi in writing that she was temporarily removed from
her position as Team Leader and would be reassigned to
perform clerical and other light duties. The letter stated
that the fact that Guglielmi's recent hospitalizations were
the result of deliberate overdoses of prescription
medications raised "concerns about [her] ability to perform
[her] present job functions including medication ordering,
dispensing and shift supervision." The letter also indicated
that Amego's Safety Committee would meet to determine whether
Guglielmi could perform her job, or another available job,
with or without accommodations. Driscoll said that the
Committee should seek medical information from Guglielmi's
treating physician.
In an attempt to obtain a professional opinion on
Guglielmi's ability to resume her duties, Driscoll sent a
letter to Posever on July 1 asking whether Guglielmi could
perform eleven duties that a Team Leader would need to
perform, set forth on a checklist. The letter came back to
Amego on July 8 with a check in the "yes" column for each job
duty. Only Guglielmi had signed the bottom of the checklist.
Driscoll called Posever to ask if the checklist
accurately reflected Posever's opinion that Guglielmi could
complete the duties or whether the list merely reflected
Guglielmi's own opinion. Posever told Driscoll she was not a
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medical doctor, that the checklist did not represent a
medical competency evaluation as to each specific job duty,
nor was it a guarantee regarding each duty. It was rather
that, based on her discussions with Guglielmi and her
knowledge of her work and treatment history, Posever had no
reason to think Guglielmi could not perform those duties.
Posever's checking "yes" was based on her observations of
Guglielmi's demeanor and on Guglielmi's statement that she
felt comfortable giving out psychotropic medications at work,
even in light of her suicide attempts. Driscoll appeared
dissatisfied with the response and pressed for a more
definitive opinion, which Posever declined to give. Later,
Driscoll told Guglielmi that Posever's response was
inadequate.
On July 22, Driscoll sent Dr. Levin a letter
requesting his opinion as to whether Guglielmi could perform
the eleven functions of her job and enclosing the checklist.
In a letter dated July 27, 1992, Dr. Levin wrote that
Guglielmi was no longer on prescription medication. He
concluded: "My understanding is that she has consistently
performed her regular job responsibilities conscientiously
and I see no difficulty with her returning to her regular
position." There was no checklist with the letter Amego
received. Driscoll viewed Dr. Levin's conclusions as
largely being based on what Guglielmi said she could do and
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her representation that she had no performance problems. But
Driscoll knew from staff complaints that Guglielmi had a
range of performance problems. And Driscoll knew Dr. Levin
had not checked with anyone at Amego about whether Guglielmi
was in fact performing well. Driscoll told Guglielmi that
Dr. Levin's letter did not adequately deal with the job
functions issue.
Driscoll was also concerned that the parents of
Amego's charges would feel that their children would be put
at risk by being in the care of someone who abused
prescription drugs. The parents, she felt, would contact one
of the state agencies which licensed Amego.
On July 21, the Safety Committee met. The
Committee was comprised of four administrators: Seal, the
Director of Administrative Services; Amego's Health
Coordinator, who was a nurse; the Staff Development
Coordinator; and the Administrative Assistant/Workers'
Compensation Coordinator. The Committee found that Guglielmi
was not in fact performing her job duties conscientiously or
performing them well. The Committee concluded that Guglielmi
could not safely perform the Team Leader position and that
there was no Amego position that could be modified to
accommodate her.
On July 27, 1992, Amego's Board of Directors was
informed of the recommendation of the Safety Committee and,
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after additional discussion, concluded that there was no
alternative position that could accommodate Guglielmi. The
following day Driscoll informed Guglielmi that her employment
was terminated. Amego says its core concern was that
Guglielmi could not meet the essential job function of
handling prescription medication.
II.
The district court entered summary judgment for
Amego, finding that the EEOC had failed to meet its burden
under the ADA of showing that Guglielmi was qualified for the
position of Team Leader and that Amego could have made a
reasonable accommodation. The district court also found that
the EEOC had failed to meet its burden of showing that Amego
had discriminated against Guglielmi "because of" a
disability.
The scope of appellate review of entry of summary
judgment in ADA cases, as in all others, is de novo. Soileau
__ ____ _______
v. Guilford, 105 F.3d 12, 14 (1st Cir. 1997). The EEOC bore
________
the burden of showing that Guglielmi was qualified to
perform, either with or without reasonable accommodation, the
essential functions of her job. See Jacques v. Clean-Up
___ _______ ________
Group, Inc., 96 F.3d 506, 511 (1st Cir. 1996).2
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2. To establish a claim under the ADA, a plaintiff must
prove by a preponderance of the evidence: (1) that she was
disabled within the meaning of the ADA; (2) that, with or
without reasonable accommodation, she was able to perform the
essential functions of her job (in other words, that she was
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For summary judgment purposes, the parties do not
dispute that Guglielmi was a disabled person within the
meaning of the ADA. It is also undisputed that an essential
function of the Team Leader position is to administer and
monitor the medication of Amego's clients. The written job
description provides that this is an essential job function,
and the EEOC concedes that Team Leaders have access to locked
medicine cabinets containing large quantities of drugs and
are expected to administer medications to clients.
This case initially turns on whether the EEOC has
met its burden of showing that Guglielmi was a "qualified"
person. Amego's position is that it terminated Guglielmi's
employment because she showed by her conduct -- by behavior
leading co-workers to have concerns about whether she was a
risk to clients and by her two attempts to commit suicide
using prescription and non-prescription drugs -- that she
could not reasonably be trusted to meet her responsibilities
as to medications. Although the qualification analysis could
be understood to subsume the concept of reasonable
accommodation, we think it analytically sounder to treat the
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"qualified"); and (3) that the employer discharged her in
whole or in part because of her disability. See Jacques, 96
___ _______
F.3d at 511; Katz v. City Metal Co., Inc., 87 F.3d 26, 30
____ ____________________
(1st Cir. 1996); see also 42 U.S.C. 12112(a). The district
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court used the largely similar formula under McDonnell
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Douglas Corp. v. Green, 411 U.S. 792 (1973), for establishing
_____________ _____
a prima facie case of discrimination. Either formula is
appropriate here. See Katz, 87 F.3d at 30.
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two topics separately. Cf. Southeastern Community College v.
___ ______________________________
Davis, 442 U.S. 397, 406 (1979)("An otherwise qualified
_____
person [under the Rehabilitation Act] is one who is able to
meet all of a program's requirements in spite of his
handicap.").3
Qualification/Direct Threat Under Title I of the ADA
____________________________________________________
To understand the EEOC's burden of proof argument,
it is necessary to understand the ADA statutory scheme. At
its core, Title I of the ADA is about protecting the disabled
from discriminatory employment action based on stereotypes
and fear. See H.R. Rep. No. 101-485, pt. 3, at 45 (1990),
___
reprinted in 1990 U.S.C.C.A.N. 445, 468; see also Jacques, 96
_________ __ ___ ____ _______
F.3d at 511. The prima facie case establishes that because
an individual with a disability is qualified, yet has
suffered adverse employment action because of that
disability, the employer may have engaged in the type of
discrimination the ADA is designed to prevent. Here, the
plaintiff has failed to establish a prima facie case: there
is no evidence suggesting the presence of any disability-
based discrimination.
The general rule of the ADA is that an employer
shall not "discriminate against a qualified individual with a
disability because of the disability . . . ." 42 U.S.C.
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3. As explained below, caselaw interpreting the
Rehabilitation Act of 1973 is applicable to the ADA. See 29
___
U.S.C. 794(d).
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12112(a). It is generally accepted that, in a Title I case,
the plaintiff bears the burden of showing she is a
"qualified" individual. See Jacques, 96 F.3d at 511.
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A qualified individual is one who can perform the
essential functions of the job held. See 29 C.F.R.
___
1630.2(m). The statute also says that "the term
'qualification standards' may include a requirement that an
individual shall not pose a direct threat to the health or
safety of other individuals in the workplace." 42 U.S.C.
12113(b). It defines "direct threat" as meaning "a
significant risk to the health or safety of others that
cannot be eliminated by reasonable accommodation." 42 U.S.C.
12111(3). The rub is that the language about
"qualification standards" under Title I appears in a section
of the statute entitled "Defenses." 42 U.S.C. 12113(a)
("It may be a defense to a charge of discrimination under
[the ADA] that an alleged application of qualification
standards . . . has been shown to be job-related.") The EEOC
argues that the employer bears the burden of proof on this
affirmative defense.
The EEOC argues further that whenever an issue of
threats to the safety or health of others is involved in a
Title I case, it must be analyzed under the "direct threat"
provision of 12113(b) as an affirmative defense.
Specifically, the EEOC contends that the 12113(b) provision
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that qualification standards may include a requirement that
an individual not be a direct threat is to be read in the
context of the defense set out in 12113(a). The EEOC
supports its position by noting that 12113 is captioned
"Defenses."4 Thus, the EEOC says, the district court erred
in considering the matter of whether Guglielmi posed a threat
to the safety of Amego's clients as a matter of
"qualification," on which plaintiff bears the burden. Amego
contends that the risks posed to others may be considered as
part of the qualified individual analysis, and that the
specific discussion of a direct threat defense in 12113
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4. The confusion on this point is reflected in the
legislative history. During congressional hearings,
Representative Dannemeyer asked a witness, who had
contributed to the drafting of the ADA, who had the burden of
proof on the direct threat issue in the communicable disease
context. Comm. on Educ. and Labor, U.S. House of
Representatives, 101 Cong., 1st Sess., The Americans with
___________________
Disabilities Act 1896 (Comm. Print 1990). The witness
_________________
replied that the plaintiff, as part of his prima facie case,
would have to put on evidence that his communicable disease
would not pose a direct threat to others. Id.
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There is also caselaw establishing that even under a
"direct threat" analysis, the "employee retains at all times
the burden of persuading the jury either that he was not a
direct threat or that reasonable accommodations were
available." Moses v. American Nonwovens, Inc., 97 F.3d 446,
_____ ________________________
447 (11th Cir. 1996)(per curiam)(citing Benson v. Northwest
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Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir. 1995)), cert.
______________ _____
denied, 117 S. Ct. 964 (1997). In affirming summary judgment
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for the employer in an ADA action brought by an epileptic
product inspector who worked near exposed machinery, the
Moses court noted that to defeat summary judgment, the
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nonmoving party must raise "significant probative evidence"
that is "sufficient" for the jury "to return a verdict for
that party." Id. at 447 (citing Anderson v. Liberty Lobby,
___ ________ ______________
Inc., 477 U.S. 242, 249 (1986)).
____
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does not preclude the consideration of safety risks in other
prongs of the ADA analysis.
Because the statutory scheme does not clearly
resolve this debate, we look to the legislative history to
determine whether risks posed to others may only be
considered in the direct threat defense context. See United
___ ______
States v. Charter Int'l Oil Co., 83 F.3d 510, 517 (1st Cir.
______ ______________________
1996). Upon such review, we discern no congressional intent
to preclude the consideration of essential job functions that
implicate the safety of others as part of the
"qualifications" analysis, particularly where the essential
functions of a job involve the care of others unable to care
for themselves. The House Report5 said that, in the
definition of "direct threat," "[t]he Committee intends to
codify the direct threat standard used by the Supreme Court
in School Board of Nassau County v. Arline." H.R. Rep. No.
_____________________________ ______
101-485, pt. 3, at 34 (1990), 1990 U.S.C.C.A.N. at 457. The
House Report goes on to say that, "[i]f the applicant is
otherwise qualified for the job, he or she cannot be
disqualified on the basis of a physical or mental condition
____________________
5. The report was concerned about exclusion of individuals
based on fears or stereotypes, rather than on "objective"
evidence about the individual involved. Thus, in the case of
a person with mental illness there must be objective evidence
from the person's behavior that the person has a recent
history of committing overt acts or making threats which
cause harm or which directly threatened harm. H.R. Rep. 101-
485, pt. 3, at 45-46, 1990 U.S.C.C.A.N. at 468-69.
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unless the employer can demonstrate that the applicant's
disability poses a direct threat to others in the workplace.
. . . The plaintiff is not required to prove that he or she
poses no risk." Id. at 46, 1990 U.S.C.C.A.N. at 469. The
___
intent to codify Arline suggests that the burden is on
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plaintiff to show that he or she is qualified in the sense of
not posing a direct threat. Arline considered that issue to
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be part of the "qualification" analysis under 504 as to
which plaintiff bears the burden.6 See Arline, 480 U.S. at
___ ______
287-88.
The ADA also contains a directive that it be
enforced in a manner that is consistent with the requirements
of the Rehabilitation Act of 1973. 42 U.S.C. 12117(b).
Courts therefore use caselaw under 504 of the
Rehabilitation Act, 29 U.S.C. 794, for guidance in
interpreting the ADA. See 29 U.S.C. 794(d)("The standards
___
used to determine whether this section [ 504 of the
Rehabilitation Act] has been violated in a complaint alleging
employment discrimination under this section shall be the
standards applied under Title I of the [ADA]."); Katz v. City
____ ____
Metal Co., Inc., 87 F.3d 26, 31 n.4 (1st Cir. 1996) (Section
________________
504 of the Rehabilitation Act "is interpreted substantially
____________________
6. While the language of the "direct threat" provision is
not limited to instances where the threat comes from
communicable diseases, the provision originated in the
communicable disease context. See H.R. Rep. No. 101-485, pt.
___
2, at 76, 1990 U.S.C.C.A.N. at 358-59.
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identically to the ADA."). Under 504, it is clear that the
question of whether the employment of the plaintiff poses
risks to the health of others is analyzed as a matter of
whether the person is "otherwise qualified." Arline, 480
______
U.S. at 287; see also Abbott v. Bragdon, --- F.3d ---, ---,
___ ____ ______ _______
1997 WL 85096, at *7 (1st Cir. March 5, 1997) ("A court's
goal in conducting a direct threat analysis under the ADA is
to achieve a reasonable balance, protecting service providers
. . . from enforced exposure to unacceptable health and
safety risks" while protecting the disabled from
discrimination.).
In Arline, the Court held that the issue of the
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threat to others posed by an employee with a communicable
disease was properly analyzed as a question of whether the
employee was "otherwise qualified." Arline, 480 U.S. at 287.
______
The Court noted that a "person who poses a significant risk
of communicating an infectious disease to others in the
workplace will not be otherwise qualified for his or her job
if reasonable accommodation will not eliminate that risk."
Id. at 287 n.16. Arguably, in Arline, the question of
___ ______
whether the plaintiff could perform the core functions of a
school teacher's job was separate from the question of
whether she nonetheless posed a risk because of her
communicable disease. Here, the questions are not separate:
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the issue of risk posed to others arises in the context of a
core function of the job.
The EEOC correctly points out that, unlike the
Rehabilitation Act, the ADA's definition of "qualified
individual" does not address risk posed to others. While it
is true that the implementing regulations under the
Rehabilitation Act define "qualified individual with
handicaps" specifically to include "without endangering the
health and safety of the individual or others," 29 C.F.R.
1614.203(6), Congress intended the ADA's definition of
"qualified individual with a disability" to be "comparable to
the definition used in regulations implementing section 501
and section 504 of the Rehabilitation Act of 1973." H.R.
Rep. 101-485, pt. 2, at 55, 1990 U.S.C.C.A.N. at 337.
The EEOC stakes out a position which is far too
broad. This is not a case where a person who can perform all
essential job functions nonetheless poses a risk to others.
The district court did not, we believe, commit error in
considering risk posed to others under the category of
"qualification," where the risk is expressly associated with
performance of an essential job function.
The precise issue here concerns the employer's
judgment that Guglielmi could not be trusted to handle the
medication-related functions of her job. In this case, a
failure to perform an essential function -- overseeing and
-22-
22
administering medication -- would necessarily create a risk
to others. That a failure to perform a job function
correctly creates a risk to others does not preclude the
ability to perform that function from being a job
qualification. The position argued by the EEOC would lead to
the anomalous result that there is a lesser burden of proving
qualifications on a plaintiff where the job involves the care
of others, and necessarily entails risk to others, than when
the job does not. We do not believe Congress intended to
weaken the burden on plaintiffs to show they are qualified in
such circumstances.
In such cases, where the employee is responsible
for ensuring the safety of others entrusted to his or her
care, other courts, without discussion of the point the EEOC
raises, have simply considered the risk question to be part
of the "qualified" analysis. See, e.g., Doe v. University of
___ ____ ___ _____________
Maryland Med. Sys. Corp., 50 F.3d 1261, 1265 (4th Cir. 1995);
________________________
Altman v. New York City Health and Hosp. Corp., 903 F. Supp.
______ ____________________________________
503, 509-10 (S.D.N.Y. 1995); Mauro v. Burgess Med. Ctr., 886
_____ _________________
F. Supp. 1349, 1352-53 (W.D. Mich. 1995).
We hold that, in a Title I ADA case, it is the
plaintiff's burden to show that he or she can perform the
essential functions of the job, and is therefore "qualified."
Where those essential job functions necessarily implicate the
safety of others, plaintiff must demonstrate that she can
-23-
23
perform those functions in a way that does not endanger
others. There may be other cases under Title I where the
issue of direct threat is not tied to the issue of essential
job functions but is purely a matter of defense, on which the
defendant would bear the burden. This case does not raise or
resolve issues of the role of "direct threat" provisions
under other parts of the ADA, such as the public
accommodation title. Cf. Abbott, 1997 WL 85096. For the
___ ______
reasons which follow, we conclude plaintiff's burden was not
met.
Appropriateness of Summary Judgment
___________________________________
The EEOC argues that a jury question is presented,
in any event, as to whether the evidence showed Guglielmi was
qualified. This is not, we think, a close question.
We set the context. Guglielmi did not meet her
burden of demonstrating that she is qualified. There is in
this record no suggestion that the employer has applied its
standards differentially. The EEOC presents no evidence that
the employer has ever found a similarly situated employee to
be qualified to handle the essential medication function.
Instead, the EEOC attempts to derive from its disagreement
with Amego over whether Guglielmi is qualified an inference
that the employer's different assessment is based on
disability discrimination. However, where, as here, no
evidence of animus is present, courts may give reasonable
-24-
24
deference to the employer's assessment of what the position
demands. See Doe v. New York Univ., 666 F.2d 761, 776 (2d
___ ___ _______________
Cir. 1981)(finding that, in case involving mentally ill
applicant to medical school, "considerable judicial deference
must be paid to the evaluation made by the institution
itself, absent proof that its standards and its application
of them serve no purpose other than to deny an education to
handicapped persons"); cf. Southeastern Community College,
___ _______________________________
442 U.S. at 406 (supporting reasonable deference to the
decisions made by administrators of federally funded programs
so long as no evidence is presented of discriminatory intent
with regard to the handicapped person).
The requirement of showing "qualifications" has
substance, notwithstanding the frequent leapfrogging of that
analysis to get to the pretext issue under McDonnell
_________
Douglas.7 In the context of academic tenure cases, this
_______
court has been attentive to the need to balance the right of
a plaintiff to be free from discrimination against the
undesirable result of having the court sit as a "super-tenure
committee." See Villanueva v. Wellesley College, 930 F.2d
___ __________ _________________
____________________
7. The ADA is interpreted in a manner similar to Title VII,
Soileau, 105 F.3d at 16, and courts have frequently invoked
_______
the familiar burden-shifting analysis of McDonnell Douglas in
_________________
ADA cases. The qualification prong of the prima facie case
is frequently met by a showing that the employee satisfied
the prerequisites for the position and that she can perform
the essential functions of the position held or desired. See
___
42 U.S.C. 12111(8); 29 C.F.R. 1630.2(m).
-25-
25
124, 129 (1st Cir. 1991). Thus, plaintiffs who have been
denied tenure must show that their qualifications are at
least comparable to those of a "middle group of tenure
candidates as to whom both a decision granting tenure and a
decision denying tenure could be justified as a reasonable
exercise of discretion by the tenure-decision making body."
Banerjee v. Board of Trustees, 648 F.2d 61, 63 (1st Cir.
________ __________________
1981). Aware of the fine balance of competing considerations
that preserve academic freedom, this court has noted that
"[i]n tenure cases, courts must take special care to preserve
the University's autonomy in making lawful tenure decisions."
Brown v. Trustees of Boston Univ., 891 F.2d 337, 346 (1st
_____ __________________________
Cir. 1989).
Similar care is required here. Where the plaintiff
has presented no evidence of discriminatory intent, animus,
or even pretext, we think there should be special sensitivity
to the danger of the court becoming a super-employment
committee. Unlike the academic institutions in the above-
cited cases, Amego is a small employer. Its history of
employment decisions is neither lengthy nor detailed, making
it difficult to assume, without help from plaintiff, that the
qualification standards it asserts for Guglielmi are
different from those required of other employees. Plaintiff
has failed to provide such help. It is in this context that
we review the facts. We are also mindful of the Arline
______
-26-
26
factors for assessing whether an employee poses a significant
risk to others. Cf. Arline, 480 U.S. at 288.8
___ ______
It was eminently reasonable for Amego to be
concerned about whether Guglielmi could meet her
responsibilities, and also reasonable for it to conclude that
the risk was too great to run. The employer's judgment here
about the risks of future behavior by an employee is based on
past behavior and reasonable indicia of future behavior.
First, the nature of the risk was such that it was
extremely difficult to guard against. The clients were
particularly vulnerable to abuse or neglect. The mechanisms
to insure that they were properly treated with regard to
their medications, other than having trustworthy staff, were
not obvious. Amego had just learned that, despite its normal
procedures, four patients at the Fales Road residence were
overly medicated and that it could not determine whether any
medications were missing. Testing the clients' blood to
determine whether they had received the correct dosage level,
or indeed the correct drugs, has to be considered an
extraordinary step, and not a safeguard which could routinely
____________________
8. In determining whether an individual poses significant
health and safety risk to others in the contagious disease
context, the Arline Court suggested the consideration of the
______
following factors: the nature of the risk; the duration of
the risk; the severity of the risk (potential of harm to
third parties), and the probabilities the disease will be
transmitted and will cause varying degrees of harm. Id. We
___
conduct our analysis of the safety risk Guglielmi poses to
Amego clients against this backdrop.
-27-
27
be taken. Additionally, the severity of the risk, i.e., the
____
potential harm to third parties, Arline, 480 U.S. at 288, is
______
great. The potential outcomes of administering the wrong
medication to a client are obvious and extreme.
Second, there were performance issues which
enhanced the likelihood that the clients could be harmed
unless steps were taken. Amego received complaints, from
other staff members, that Guglielmi was unable to focus on
her job and was a risk to patients. The situation was
serious enough that staff members sent an emissary to
management, asking that something be done. The peculiarity
of Guglielmi finding the missing medication log at a place
which had been searched earlier would reasonably give Amego
pause. Amego had reason to fear that Guglielmi would take
medications from Amego. When the police came to her
apartment on the night of her second suicide attempt, they
found pills they believed to be Klonopin. Klonopin is taken
by cocaine users, and management suspected the man with whom
Guglielmi lived of being a cocaine user and of drugging Amego
clients.9
____________________
9. Amego did not learn until after it had decided to
terminate Guglielmi's employment that Guglielmi had lied to
them about whether she suspected Andrade of using cocaine.
Because it is unnecessary to the decision, we do not address
the issue of whether this after-acquired evidence could, in
the context of the ADA, be used for purposes other than as a
rationale for terminating her employment, e.g., to buttress
____
the employer's judgment that Guglielmi's untrustworthiness
affected her ability to perform an essential job function.
-28-
28
Third, other measures had not eliminated the risk
of Guglielmi mishandling medication. Amego knew that,
despite counselling and medication, Guglielmi had attempted
suicide a second time using medication and that she would
have access to Prozac at work, one of the drugs used in this
second attempt. The EEOC says that Amego should have had
greater confidence in Guglielmi because she no longer had a
prescription for drugs after the second attempt. There is
cold comfort in that: this fact increased the likelihood that
Guglielmi would use the drugs available to her at work for a
third attempt. Amego also knew that despite its provision of
a work schedule accommodation, Guglielmi soon stopped going
to the therapy sessions she said she wanted to attend after
her first suicide attempt. Amego knew that by concealing her
suicide attempts Guglielmi had misled them about the nature
of her previous absences from work.
Fourth, when Amego sought reassurance from
Guglielmi's health care providers, the responses were not
confidence-building. Posever, the social worker, neither
responded to the substance of the request for information nor
____________________
Cf. Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir.
___ _________ ______
1985)(holding that, in Rehabilitation Act case, later-
discovered evidence as to plaintiff's actual medical
condition is admissible to rebut plaintiff's prima facie
showing of qualification). But cf. McKennon v. Nashville
___ ___ ________ _________
Banner Publ'g Co., 115 S. Ct. 879, 885 (1995) (holding that,
__________________
in ADEA cases, after-acquired evidence may not be used to
justify discriminatory discharge, though it may be used to
limit plaintiff's recovery).
-29-
29
signed her name to the checklist. After receiving the
checklist, Driscoll telephoned Posever. Posever explicitly
declined to give a psychiatric medical opinion. Dr. Levin,
the psychopharmacologist, gave a brief response which Amego
could reasonably understand to be unresponsive to its
concerns and to be based on Guglielmi's own assessment of her
ability to do the work.
We also credit the deliberative process through
which Amego made its decision.10 It sought additional input,
including that from Guglielmi's medical advisors, and
considered other information before reaching its decision.
This deliberative process undercuts any argument that the
employer based its decision as to qualifications on
stereotypes about disability. There can be no serious claim
that Amego, which had considerable experience dealing with
mentally handicapped persons and integrating them into the
community, acted on the basis of the stereotypes and fears
which Congress wished to counteract in the ADA. Also, Amego
had earlier made accommodations. It modified Guglielmi's
schedule so that she could receive treatment and was
supportive of her efforts to deal with her condition. See
___
Soileau, 105 F.3d at 17.
_______
____________________
10. As the district court noted, the irony is that, if Amego
had acted with less deliberation, the employment action would
have been taken before the effective date of the ADA. The
ADA became effective a few days before Guglielmi's discharge.
-30-
30
Amego also operated in a context which added weight
to the risks it thought Guglielmi posed. Amego is licensed
by two state agencies and is required to take steps to assure
the safety of its patients. If a single client had been
harmed from misuse of medication, then Amego stood the risk
of losing its licenses and its ability to care for any of its
clients.11
Under these circumstances, where no evidence of
differential treatment, discrimination, or stereotyping is
proffered, the employer's judgment is entitled to some
weight. The EEOC's "Interpretive Guidance" to its ADA
regulations notes that the inquiry into essential functions
is not intended to second-guess an employer's business
judgment regarding production standards, whether qualitative
or quantitative. EEOC, Interpretive Guidance on Title I of
____________________________________
____________________
11. In Arline, the Supreme Court noted that deference should
______
be given to the judgments of public health officials as to
the analysis of whether an individual is "qualified."
Arline, 480 U.S. at 288; cf. Abbott, 1997 WL 85096, at *9
______ ___ ______
(reasoning that deference of "prima facie force is due public
health officials"). No such direct evidence was presented
here. But it is noteworthy that Amego was subject to the
regulatory requirements of two public agencies. As a
condition of receipt of public funds, Amego must be licensed
to operate by the Massachusetts Department of Mental
Retardation and the Massachusetts Office for Children. One
of the requirements for licensure included ensuring the
safety and well-being of the clients entrusted to Amego's
care.
-31-
31
the Americans with Disabilities Act, app. to 29 C.F.R. pt.
____________________________________
1630.12
In somewhat similar factual settings, other courts
have affirmed summary judgment on the issue of qualification.
In Doe v. University of Maryland Medical System Corp., 50
___ ______________________________________________
F.3d at 1261, the defendant medical center terminated the
employment of an HIV-positive doctor. The court affirmed
summary judgment on the grounds that the doctor was not an
"otherwise qualified" individual because he posed a
significant risk to patients that could not be eliminated
through reasonable accommodation. Id. at 1266. The court
___
rejected the doctor's argument that the risk of transmission
was so infinitesimal that it could not be considered
significant. Id. The employer had relied on recommendations
___
from the Center for Disease Control in analyzing whether the
doctor's job functions fit the definition of exposure-prone
procedures. Id. at 1264. The court expressed its reluctance
___
to substitute its judgment for that of the medical center.
Id. at 1266. In Bradley v. University of Texas M.D. Anderson
___ _______ _________________________________
Cancer Center, 3 F.3d 922 (5th Cir. 1993), the Fifth Circuit
______________
____________________
12. It is true that the Interpretive Guidance also states
that the determination whether someone is qualified "should
not be based on speculation that the employee may become
unable in the future." Id. This not such a case. Rather,
___
Amego based its determination on Guglielmi's capabilities "at
the time of the employment decision," as the Guidance
suggests is appropriate. Id.
___
-32-
32
affirmed entry of summary judgment for the employer on a
Rehabilitation Act claim with similar facts.
Similarly, the Fourth Circuit in Martinson v.
_________
Kinney Shoe Corp., 104 F.3d 683 (4th Cir. 1997), affirmed
______ __________
summary judgment on the ground that an epileptic employee was
not qualified to perform an essential job function of his
salesperson's job at a retail store, which entailed
maintaining store security. See also Kohl v. Woodhaven
___ ____ ____ _________
Learning Ctr., 865 F.2d 930 (8th Cir. 1988) (finding that a
_____________
Hepatitis - B carrier patient who displayed aggressive
behavior would pose an unreasonable risk of transmitting the
disease to other patients and staff); cf. Arline, 480 U.S. at
___ ______
288.
Reasonable Accommodation
________________________
The EEOC argues that Amego was required to move
Guglielmi from the Team Leader position to a Behavior
Therapist position as a reasonable accommodation. If the
Behavior Therapist position required no responsibility with
respect to medication, there would be more force to the
EEOC's position. See Hurley-Bardige v. Brown, 900 F. Supp.
___ ______________ _____
567, 570 (D. Mass. 1995)(finding that there is "no per se
rule against transfers as reasonable accommodations"). But
the position did entail that responsibility.
Although medication-related duties are not
specifically mentioned in the Behavior Therapist job
-33-
33
description, the ability to handle, administer, and document
medication was inherently part of the Behavior Therapist's
function, as listed in Amego's job description, of
"implementing individual clinical and educational programs."
13
All Behavior Therapists receive training in the
administration of medications. Behavior Therapists accompany
clients on frequent off-site trips into the community and
must dispense medications to clients at appropriate times
without supervision. When no Shift Supervisors or Team
Leaders are present, the Behavior Therapists must dispense
medications at the residences. Behavior Therapists also
accept deliveries of client medications in Amego's
facilities. Keys to the medicine cabinet are easily
accessible to Behavior Therapists.
There is no material factual dispute; only the
legal implications of these facts are in true dispute.
Medication-related duties of the Behavior Therapist position
are essential, and not marginal, to the position. While the
amount of time a Behavior Therapist spends dispensing
____________________
13. Evidence of whether a particular function is essential
includes, but is not limited to, written job descriptions;
the employer's judgment as to which functions are essential;
the amount of time spent on the job performing the function;
the consequences of not requiring the plaintiff to perform
the function; and the work experience of those who are doing
or have done similar jobs. 29 C.F.R. 1630.2(n).
-34-
34
medication is not great, the consequences of getting it wrong
are quite great indeed.
There was no accommodation that Amego could make to
the Behavior Therapist position that would not cause it undue
hardship. See 42 U.S.C. 12112(b)(5)(A), 12111(9).14 To
___
retain Guglielmi while eliminating all of Guglielmi's
medication-related duties, it would have been necessary to
hire another Behavior Therapist to be paired with her to
ensure that she would never be left alone with a client who
needed medication. Amego might also have needed an
additional supervisor to ensure that Guglielmi did not have
access to client medications. The expense of hiring these
additional staff would be too great for a small nonprofit
like Amego to be reasonably expected to bear.15 See Vande
___ _____
____________________
14. In determining whether an accommodation would impose an
undue hardship under the ADA, the factors to be considered
include: the nature and cost of the accommodation; the
overall financial resources of the facility; the number of
persons employed at the facility; the effect on expenses and
resources, or the impact otherwise of such accommodation upon
the operation of the facility; the overall financial
resources of the covered entity; the overall size of the
business of a covered entity; the number, type, and location
of its facilities; and the type of operations of the covered
entity including the composition, structure, and functions of
the workforce of such entity; the geographic separateness,
administrative, or fiscal relationship of the facility in
question to the covered entity. 42 U.S.C. 12111(10)(B).
15. The cost of an additional Behavior Therapist, for
example, would be approximately $20,000 (base wages annually
with benefits). Given that Amego ended the fiscal years 1992
and 1993 with a deficit, this would require additional funds
which Amego does not have.
-35-
35
Zande v. Wisconsin Dep't of Admin., 44 F.3d 538, 542 (7th
_____ ___________________________
Cir. 1995)(holding that employer may prove undue hardship by
establishing that the costs of the proposed accommodation are
excessive in relation either to its benefits or to the
employer's financial health or survival).
Another possible option, rearranging Guglielmi's
assignment to clients so that she was never with a client who
required medication, would obviously be difficult since, at
the time of Guglielmi's employment, only one client at the
Mansfield residence did not take medication. Assigning
Guglielmi to that one client would disrupt Amego's crucial
one-staff-member-to-two-clients ratio,16 or result in the
need for an additional Behavior Therapist. Both options
would alter the basic operations of Amego and go beyond the
scope of a reasonable accommodation. See Reigel v. Kaiser
___ ______ ______
Found. Health Plan, 859 F. Supp. 963, 973 (E.D. N.C. 1994).
__________________
Deploying another Behavior Therapist to Guglielmi's
location and shift or changing Guglielmi's clients'
programming to ensure that they were on site, near other
staff members, whenever they needed to take medication would
have an equally disruptive effect on Amego's clients and
____________________
16. Altering these staff/client ratios would contravene
specific provisions that are included in Amego's funding
contracts and the clients' individualized educational or
service plans.
-36-
36
staff as well as interfere with Amego's funding
requirements.17 See Ricks v. Xerox Corp., 877 F. Supp. 1468,
___ _____ ___________
1477 (D. Kan. 1995)(holding that the ADA does not require an
employer to hire a full-time helper to assist a disabled
employee as a reasonable accommodation).
In sum, Amego cannot make a reasonable
accommodation. To do what the EEOC asks would be to alter the
very nature of the Behavior Therapist position. "Such
redefinition exceeds reasonable accommodation." Bradley, 3
_______
F.3d at 925.
"Because Of" and the Conduct/Disability Distinction
___________________________________________________
The EEOC argues that it met its burden on causation
because, it says, the ADA prohibits adverse employment action
that is based on conduct related to a disability to the same
extent that it prohibits adverse employment action based on
the underlying disability itself. It says that Amego
terminated Guglielmi because of her suicide attempts and that
the termination was, therefore, "because of" her disability.
Even if Amego terminated Guglielmi for misusing medication,
rather than for attempting suicide, the EEOC says the
termination decision was still "because of" her disability.
____________________
17. Amego's philosophy of maximizing community access
opportunities is incorporated into its funding contracts and
into clients' individualized programs. Amego would have
violated those agreements if it were to diminish or
artificially restrict community access opportunities for
either Guglielmi's or another employee's clients.
-37-
37
To the extent that the EEOC is arguing that conduct
connected to a disability always must be considered to be
action "because of" a disability, that is too broad a
formulation. While one may hypothesize certain conduct which
is in fact more closely compelled by the disability (e.g.
____
profanity from Tourette's Syndrome sufferers), this case does
not provide the occasion to explore what merit there might be
to a more refined formulation of the EEOC's position. The
syllogism which the EEOC presents -- Guglielmi was depressed,
therefore Guglielmi attempted suicide, therefore any response
to the attempted suicide is "because of" her disability --
breaks down. Apart from the evidence that staff believed she
was a threat to clients based on her at-work behavior alone,
Amego has been clear, for purposes of the summary judgment
motion, that it was the manner of the suicide attempts -- use
of medications, including prescription medications -- that
motivated its decision.18
There is simply no evidence that Guglielmi's
depression compelled her to overdose on medications, as
opposed to other methods of attempting suicide. At best,
EEOC's evidence was that individuals suffering from bulimia
and depression sometimes have suicidal thoughts or attempt
____________________
18. Amego, through its Safety Committee, determined that
Guglielmi could not safely perform any of the eleven
responsibilities of the Team Leader position but did not
raise this argument on summary judgment.
-38-
38
suicide. In Taub v. Frank, 957 F.2d 8 (1st Cir. 1992), this
____ _____
court held that a plaintiff could not show under the
Rehabilitation Act that he was discharged by reason of his
handicap, drug addiction, because his heroin addiction was
"simply too attenuated when extended to encompass an
addiction-related possession of heroin for distribution."
Id. at 11. Similarly, in Leary v. Dalton, another
___ _____ ______
Rehabilitation Act case, this court found that where the
discharge from employment was for absenteeism resulting from
incarceration for driving under the influence, the
plaintiff's disability of alcoholism was not the sole reason
for his termination. 58 F.3d 748, 752 (1st Cir. 1995).
The facts of this case do not present the
disability and conduct connection the EEOC suggests.
Accordingly, there was no error in the district court's
determination that the EEOC also has not met its burden of
showing the job action was "because of" Guglielmi's
disability.
The entry of summary judgment for Amego, Inc., is
affirmed.
________
-39-
39
