*1 the trial counsel and by retained sented on re- great deference tion is “entitled the defen- formally declared never 3E1.1, Note court Application U.S.S.G. § view.” however, did, de- The court indigent. dant 4.3 on the defen- punitive fine impose a cline to ex- has that he asserts defendant pay. inability to to his due dant by volun- “requisite remorse” the pressed they police the disclosing recently held in States United tarily This Court closet, by his com- Cir.1992), (1st in the heroin Corral, find v. officer, through arresting release consti- supervised ments to the of that the costs court. district to the 5E1.2(a) letter post-trial of fine under § tute an additional and should Sentencing Guidelines the accorded deference keeping with In has been a where defendant imposed court’s determinations thus, a and, exempt from indigent found this Court responsibility, acceptance trial court's of the fine. punitive the trial court’s to overturn no finds basis cannot defendant “rare” determination not one of This is decision. fine, we VACATE punitive pay may assert afford the defendant instances where supervised the costs of acceptance the assessment and also right to trial the defendant release. While responsibility. charge, gun only the have contested judgment court The district affirmed government to burden put part. vacated part right charge. The drug proof for this fac- discouraged, but to be trial is not request support does
tual scenario of sentence for a reduction
the defendant responsibility. acceptance
Furthermore, although it is true presence of acknowledged the
defendant closet, after he did so in the heroin soon a warrant would Plaintiff, being informed AUGUST, Appellant, Irving did He also the closet. to search issue money secreted officers inform the INC., UNLIMITED, OFFICES apartment. in his Defendant, Appellee. ‘clearly demon a defendant “Whether No. 91-2329. accep recognition and affirmative strates a fact- responsibility’ is personal tance Appeals, Court of United States issue, district court’s and the dominated First Circuit. in the of a reduction to withhold decision 6,May Heard unless not be level will overturned fense Roy States United clearly erroneous.” 11, 1992. Dec. Decided Cir.1990). er, of the reduction is denial prece and case in the record firmly rooted
dent.
VI. not raised
Although the issue is suggests defendant, government may have erred in
that the district supervised release on
imposing costs repre- The defendant
the defendant. Justice) ordinarily indicates ministration 3E1.1 states Application 4 to U.S.S.G. note responsibility accepted has not the defendant resulting un- enhancement that "[c]onduct conduct.” for his criminal (Obstructing Impeding the Ad- der 3C1.1 *2 MA, Wilgoren, Framingham,
Howard I. plaintiff, appellant. Koffel, Foley, William B. with whom Eliot, MA, brief, Hoag Boston, & was on defendant, appellee. SELYA, Judge,. Before Circuit CAMPBELL, Judge, Senior Circuit PETTINE,* Judge. District Senior CAMPBELL, LEVIN H. Senior Circuit Judge. appeal alleged
This arises employment Defen- wrongful termination. Unlimited, Inc. dant-appellee Offices (“OUI”) plaintiff-appellant Irving Au- fired furni- gust position from his as an office ture salesman complaint gust filed an eleven-count against and two other defendants * Island, sitting by desig- the District of nation. Of Rhode weight resultant severely distressed the Dis- Court District States
United
It
loss, fatigue and weakness.
On October
Massachusetts.
trict
leave
month’s
desirable
granted defendants’
Dur-
stress.
continued
to avoid
from work
eleven
to all
motion as
*3
therapy in
receive
he will
time
this
complaint.1
August’s
by
raised
claims
can
return he
better
on his
hopes that
is whether
presented
now
issue
The sole
compensate.”
sum-
granting
erred
OUI
with
February
At a
on
of OUI
favor
mary judgment
a one-
requested
August
management
termi-
employment
his
that
claim
gust’s
to
responded
OUI
of absence.
month leave
discriminatory dis-
a
nation constituted
offering August a six-week
by
request
this
handicap
viola-
of a
the basis
charge on
to continue
August preferred
paid leave.
Mass.Gen.L.
statute
Massachusetts
tion of
1st be-
April
until
month
working another
stated
reasons
4(16).2 For the
151B,
ch.
§
then.
be better
would
weather
cause the
below,
affirm.
we
start,
April 1st
initially agreed to
OUI
March
leave
August to
on
asked
later
but
I. BACKGROUND
complaints OUI
of
because
furniture
an office
as
worked
August
August’s
of
customers.
received from
com-
predecessor
OUI and
for
salesman
sales
August met with
leaving,
OUI
Before
experiencing
began
He
1966.
pany since
accounts to be
arrange
his
to
personnel
in late
depression
of clinical
symptoms
representatives
by other sales
covered
to
went
September
August
In
1988.
away.
while
a rou-
Vogel, for
internist, Dr. Martin
Mel
August
May,
contacted
early
In
visit,
this
At
examination.
physical
tine
OUI,
notify
supervisor
Goldberg, his
dis-
he felt
Vogel that
Dr.
August
told
to return to
he would not be
him that
personal
of
number
of
tressed because
of
end
the scheduled
on
work
that his
including
family problems,
sent
August
period.
the leave
per-
by fifty
cut
had been
OUI
pay from
Stanley
Dr.
Wal-
Goldberg a letter from
cent.
letter,
Dr.
lace,
Wallace’s
psychiatrist.
Dr.
14,1989, August
August
visited
“is
February
stated
On
dated
doctor
of
my
asked the
for treatment
currently under
care
Vogel again.
sig-
recommending that
He has shown
Depression.
Major
to OUI
letter
write a
but
of ab-
in his condition
improvement
month’s leave
nificant
given
August be
My
fully
estimation
presented
yet
later
recovered.
has
from work.
sence
four
another two to
require
Dr. Vo-
is that
will
management.
he
to OUI
this letter
recovery
complete
weeks
before
August “has been
gel’s
stated
letter
reasonable accommoda-
tion involved
tion,
appealed
state law
of
to the
1. In addition
can
discharge,
employer
demonstrate
discriminatory
federal
these included
unless
age
required
alleging
discrimi-
be made
unlawful
claims
accommodation
and
nation,
that the
state
dis-
emotional
infliction of
intentional
of the
physical
limitations
or mental
contract, wrongful
tress,
employment
of
hardship
breach
impose
an undue
person would
August’s
arising
discharge,
out
and claims
employer's business.
partnership.
in a limited
participation
§
ch.
Mass.Gen.L.
summary judg-
grant of
appeal
from
did not
the basis
August’s
claim of discrimination
these.
as to
ment
appeal,
can
handicap,
sole claim
was con-
state law
jurisdiction
claims
over the
OUI,
only against
as the other two
maintained
1367(a).
jur-
This court’s
by
28 U.S.C.
ferred
respondents in a
named
defendants
present appeal
con-
August’s
to hear
isdiction
by August with
filed
charge
by
1291.
U.S.C.
ferred
Against Discrim-
the Massachusetts Commission
151B,
states,
9. At
ch.
§§
Mass.Gen.L.
ination. See
statute at issue
2.
Massachusetts
counsel, August
practice
request
moved
an
of OUI’s
part,
it is
unlawful
relevant
appeal as to those two
voluntary dismissal
through
personally
any employer
[f]or
...,
be-
That motion
employment
defendants.
agent,
to dismiss
Thus,
alleging
January
is the
handicap, any person
court on
cause
be a
person,
qualified
only appellee
in this case.
posi-
performing the essential functions
letter
disability
benefits.
filed
August that
Goldberg told
achieved.”
off,
attorney
stated
commence-
two weeks
“[t]he
additional
take an
August’s
of Mr.
that the time
ment date
22,May
until
no men-
The letter made
March
1989.”
as vacation.
count
to OUI.
would return
tion
he met with
request,
At
later, August’s attorney wrote
days
Four
Di-
Campbell, OUI’s
Marilyn
Goldberg and
again, maintaining that Au-
Goldberg
Administration,
rector of
it
resigned from OUI and that
gust had not
deposition, at
According
employ-
to return to
his “intention
that he
officials
the OUI
meeting he told
of his
the conclusion
upon
ment with OUI
ready to return
feel
expected to
attorney did
Again, August’s
disability.”
*4
“100
asked whether
May 22. When
might return.
August
indicate when
replied, “I don’t
better,” August
percent
until I start work-
percent
if I’m 100
know
22, 1989,
end of
second
May
the
On
the com-
Goldberg
August that
told
ing.”
absence,
report for
August did not
leave of
from him
percent"
expect “110
pany would
Campbell, on
On
work.
under a
“going to be
August was
and that
behalf,
inform-
August a letter
sent
OUI’s
prior to
pressure than
more
was]
lot
[he
employment
him
with OUI was
that
that busi-
August was advised
leaving.”
1, 1989,
June
because
terminated effective
worsening,
fewer
that
were
ness conditions
you
and if
will
certainly
when
“it is
unclear
han-
available to
representatives
sales
to work.” The letter
to return
be
accounts,
he would
and that
customer
dle
continue to
could not
explained
OUI
he
when
different accounts
assigned
be
temporari-
representatives
other sales
returned.
“conti-
August’s accounts because
ly cover
“come
managing
if he could
account business
says
nuity
he asked
of staff
know,
industry.”
he “could
is,
and if
critical
our
part-time
you
basis”
as
on a
back
meetings
letter,
be-
sales
there is
couple of
termination
Except
the first
for the
miss
in the morn-
meetings were
sales
communication between
any
cause the
evidence of
no
effects
experienced
he
side
ing” when
on or after
August and OUI
Goldberg
medication.
antidepressant
his claim
August renewed
sug-
Campbell
Ms.
requests.
refused both
1989, February
in December
benefits
feel
if
continued
gested
signed
and
Each
April
June
apply-
work, he should consider
unable
totally
he had
stated that
been
application
compa-
under
disability benefits
ing for
March
since
continuously disabled
late
and
plan.
ny’s insurance
leave of
began his first
day he
May that the
August claims
appli-
to each
Attached
from OUI.
absence
de-
as to reactivate
distressed him
so
Wallace,
from Dr.
a statement
cation
made
On
pression.
August had been
the fact that
verifying
under
application
a claim
out and executed
March 1989.
totally disabled since
In the
disability plan.
company’s
that he
August asserted
application,
signed
REVIEW
OF
II. STANDARD
continuously disabled
and
had been
August also wrote
24, 1989.
since March
sum-
court
OUI’s
The district
when he
did
know
the form that
Re-
all
counts.
mary judgment motion
An attend-
work.
resume
be able to
handicapped discrimination
garding the
to the
statement attached
ing physician’s
August was not
claim,
found
Wallace,
Dr.
veri-
completed by
application,
that,
person”
handicapped
“qualified
totally disabled
had
been
fied that
necessary
was,
made all
if he
OUI
that it
unknown
March 1989
since
handi-
to his
accommodations
or full-
resume
he could
review
standard of
cap.
appropriate
time work.
summary judg-
disposed
cases
Court
articulated
recently
18, 1989, August’s
ment
In a letter dated
case.
employment
another
August had in
attorney notified
protects
“qualified handicapped per
only
of a
of sum-
review
appellate
Since
See Mass.Gen.L. ch.
plenary, the court of
sons.”
mary judgment
court,
Thus, August must demonstrate that he is
“must
like the
appeals,
handicapped person.”
a “qualified
Con
record in the
the entire
view
Edison
way v. Boston
party opposing sum-
hospitable -to the
(D.Mass.1990); Mueller
v. Corenco
indulging all reasonable
mary judgment,
(Mass.
orp.,
M.D.L.R.
C
An
party’s favor.”
in that
inferences
Discrim.1991);
Against
Comm’n
Silva
panel is
restricted to
appellate
Marine, Inc., 11 M.D.L.R.
Fairhaven
can
reasoning but
affirm
Diserim.1989).
(Mass.Comm’nAgainst
any indepen-
summary judgment on
Massachusetts
statute Mass.Gen.L. ch.
end,
ground.
In the
dently sufficient
151B,
1(16)
“qualified
defines the term
up-
can be
entry of
handicapped person”
“a
pleadings, depositions,
if
“the
held
person
capable
performing
who is
interrogatories,
and admis-
answers
particular job,
affidavits,
essential functions
file, together
with
sions
performing the
who would
genuine
no
any, show that
there is
particular job
functions of a
essential
material fact
issue as
*5
handi
reasonable accommodation
his
judgment
moving party
entitled to a
cap.”
of law.”
matter
Co.,
v. General Elec.
950 F.2d
Mesnick
court,
Like
we
as
the district
shall
Cir.1991) (citations omitted),
816,
(1st
822
sume, although
deciding,
without
—
denied,
U.S. —,
2965,
112 S.Ct.
cert.
viewing
favorably
to Au
facts
(1992);
tally
job.
to do his
or full-time
part-time
per-
or
ther
or obtain
occupation,
engage
contention—
further
August’s
profit.”
or
is
compensation
Neither
any work
form
absence,
he
which
leave
N.E.2d
a third
396
Case, 379 Mass.
Cierri’s
him
might have enabled
Case, 318
requested,
never
Frennier’s
(1979);
in the
by anything
(1945).
supported
635, N.E.2d
Mass.
recover—
assuming
record,
that another
present
perform-
disabled
August was
That
would
been
of his leave
extension
full-
at OUI either
job
accommodation.6
further borne
dates
all relevant
time
After
facts.
uncontroverted
has held
by other
Eighth
out
Circuit
1989, August
on March
“otherwise
leaving
not an
work
employee
and
treatment
psychiatric
under
individual
handicapped
underwent
qualified
to return
intending
sign
plaintiff
no
Act.”
showed
Rehabilitation
federal
Goldberg in
told
himself
Boys’
Flanagan’s
work.
v. Father
in Beauford
not be able
he would
May that
early
(8th Cir.1987), cert.
Home,
F.2d 768
the end
work
resume
108 S.Ct.
denied,
U.S.
May 11 meet-
At the
period.
granted leave
hospitalized
(1988), was
L.Ed.2d
Campbell
Goldberg and
told
which,
ing,
she
ailments
emotional
physical and
May 22
ready by
would
probably
her
pressures from
out
alleged, arose
However, August
ready yet.
Id. at
school.
teaching
at defendant’s
from which
in the record
nothing
points to
ben
disability insurance
filed for
She
that,
might conclude
fact
trier
defendant
informing the
after
efits
work
he was
after
her
because
to work
unable
she
in the district
hearing
At a
capacity.
some
she
and that
problems,
physical
mental
attorney
asked
court, the court
in the foreseeable
be unable
May 22:
oh
ability to work
about
her
Plaintiff later sued
Id. at 770.
future.
any question
there
Was
COURT:
salary
THE
discontinuing her
employer
May 22nd—that
discrimina
benefits, alleging
time—
*7
work?
returning to
capable of
Reha
of section 504
in violation
tion
22nd, he
May
As of
794.
29 U.S.C.
MR. WILOGREN:
Act
bilitation
claim,
...
returning to work
capable of
plaintiff’s
rejected
court
an “otherwise
she was
holding that
during
attorney,
It was stated
because
handicapped individual”
Court,
qualified
argument before
oral
longer
thus no
and
totally disabled
she was
totally disabled
and
completely
gust was
Af
at 771.
job.
her
Id.
perform
to
present
able
1989 to
May
at least
from
ruling, the Court
court
firming the
time.
Appeals wrote:
from which
evidence
is no
Because there
prohibit
to
designed
504 was
[Sjection
completely
August was
infer that
to
an em-
ambit of
within
discrimination
in
last week
since
totally disabled
em-
relationship in which
ployment
finder could
1989,no reasonable
March
in
job
to do the
able
potentially
ployee is
times,
that, at relevant
conclude
seem undesir-
may
it
Though
question.
person within
qualified
a handi-
against
discriminate
to
eh.
meaning
of Mass.Gen.L.
to
longer able
is no
who
employee
capped
to
meetings morning
miss
Permission
Washing-
violated
migraine headaches
chronic
v. Atlantic
August
Kimbro
cites
Richfield
-
at
law. See id.
handicap
denied,
Cir.1989),
ton's
(9th
cert.
F.2d 869
889
U.S. -,
qualified its
expressly
Kimbro
(1990),
in
879.
holding,
112 L.Ed.2d
S.Ct.
obligate
ARCO
stating
did not
that it
of
OUI should have
support of his
migraine
However,
condition
if the
second leave
of absence.
leave
him a third
fered
leave. Id.
the initial
from
after return
recurred
employer’s failure
an
held that
Kimbro
n. 10.
at 879
employee with
any
of absence
leave
offer
reeord
job,
nothing
her
this sort of discrimina-
contains
in the way
psy
do his or
protection
simply
tion is
not within
chiatric or medical evidence to support
section 504.
counsel’s bare assertion that the actions of
employees
OUI’s
May meeting
771;
831 F.2d at
see
Bento
Beauford,
caused
totally
become
disabled
F.Supp.
Corp., 599
742-43
v. I.T.O.
they spoken
whereas—had
J.)
dif
(D.R.I.1984)(Selya,
(finding no violation
ferently
to re-
of the Rehabilitation Act for failure
have been able to re
—he
longshoreman
totally
retired as
hire a
who
turn to work on
Since
had
presented
and later
no evidence to
issue,
disabled
proof
was,
the burden of
on this
it
recovered).
employer
fully
that he had
course,
obligation
present definite,
“to
competent
prove
point
evidence”
August did not renounce his state
thereby
summary judgment.
avert
Mes
ments on the insurance forms of total dis
nick,
believe Judge, PETTINE, District Senior dated_”). dissenting: with our decision holding conforms This procedural presents narrow appeal This Medi- School Univ. Wynne Tufts concerning issue banc). Cir.1991) (en (1st cine, 932 F.2d reviewing sum judgment. summary ruled Wynne awards, majority mary judgment student, school Wynne, medical “ the entire record notes, view we ‘must handicapped indi- qualified “otherwise op party hospitable to the federal protection within vidual” all indulging judgment, summary posing not able law because fa party’s in that inferences requirements. testing school’s to meet ” Electric General vor.’ Mesnick ma- because a judgment We vacated Cir.1991), cert. de insuffi- court found en banc jority of the — 2965, 119 -, 112 S.Ct. nied, U.S. whether, as a to determine evidence cient Griggs-Ryan (1992) (quoting L.Ed.2d 586 fulfilled law, university had matter *9 Cir.1990)). (1st 112, 115 Smith, 904 F.2d to accommodation duty of reasonable way, a another Stated However, majority Id. at Wynne. balancing not a is by a court examination crystal were the record explained “[i]f evi party’s “which to determine exercise to if reasonable alternatives that even clear or better credent- plentiful, is more dence examinations multiple-choice written Greenburg v. Puerto ialled, stronger.” or no chance available, Wynne would Authority, Shipping Maritime Rico standards, might able we meeting Tuft’s Rather, Cir.1987). affirm_” in 27. Unlike Id. non- “whether determine must August’s case in case, the record Wynne’s evidence, All of according evidence and this most favorable movant’s majority, lead would which can rea- flattering inferences August finder to conclude that was not a are sufficient sonably therefrom be drawn “qualified handicapped person” within the question of materi- any authentic to create meaning of Mass.Gen.L. ch. means, my this in All of al fact.” Id. Thus, any requests by August for reason- justice, “close view, in the interests meaningless, able accommodations were summary judgment motions must in calls” they since “could not have enabled one who par- nonmoving in favor be resolved totally incapable disabled and thus hand, plaintiff- I believe ty. In the case full-time, working either to do latitude, this August deserves appellant job.” his reverse the district thus I would and remand the action for respect, majori- decision With all due I believe the ty putting the cart before horse. trial. August
The issue is not whether was clas- himself, psychiatrist, by sified his I. totally following May as disabled Rather, meeting key at OUI. vantage point, the majority’s From inquiry factual is whether the outcome of in case is question this “whether principal May 11th was determinative genuine issue of there was at least or not subsequent this characterization of total that, if made reasonable material fact OUI words, disability. In other it is unresolved handicap, he August’s accommodation whether could have returned to perform job.” his have been able to disability work had OUI his accommodated inquiry with a majority The answers per May requests. 11th resounding This conclusion is based “no.” August claims that he would have been statements, part August’s on own large in May to return to work the end of psychiatrist and as those of his as well requests had to miss a counsel, totally that he was and continuous- meetings part-time. and to few work ly from late March 1989 onward. disabled early There is evidence in the record that in out, points example, that majority both of doctors considered application first Vogel, him fit to return to OUI.1 Dr. Life and Acci- with the Provident benefits internist, deposition stated that after 12, 1989, Company May Insurance dent August May he examined he the dates of his “total he asserted that [August] was feel- concluded that “because 24, 1989, “through disability” were March better, suggested go I he back to continuing.” accompanying physician’s An Wallace, Dr. August’s psychiatrist, work.” by August’s psychiatrist, Dr. signed form judgment 1989 that wrote Wallace, similarly stated that had a to four require another two “will disability.” majority also ob- “total complete recovery weeks before subsequent insurance in all serves Moreover, August himself stat- achieved.” record, August declared that in the forms repre- that he told OUI’s deposition ed beginning in March meeting: 11th “I sentatives at the In addition to these written asser- I’m ready think I’m to come back work. tions, upon a statement majority relies feeling much better.” hearing in by August’s counsel at a made court, “denial of According August, OUI’s that as the district early miss one or two returning requests August was not [his] part- on a morning meetings and to work work. might tangible pres- gust evidence that he majority did offered stresses that 1. The "definite, (citing competent Mes- evidence" return to work if OUI ent nick, have been able to 822) prove that the actions F.2d at handi- accommodations to his made reasonable *10 view, at the 11th caused him of OUI my evidence cap. there was sufficient believe, totally disabled on 12th. I become however, judgment. summary point to fend off on this the crucial issue is whether fol- disability benefits temporary OUI’s take a failure constituted basis time Indeed, Au- meeting. May 11th lowing the plain- accommodate reasonably steps to work he was unable Plaintiff-Appellant’s gust concedes handicap.” tiffs arrange- type of alternative in the facts some the without Viewing at 10. Brief not again, ac- this does these plaintiff, OUI. But from to the ment favorable “incapa- en- could commodations, granted, necessarily mean if working notwith- accommodations working continue him to ble” abled all, Mas- the After handicap. employer. by his provided standing his were “qualified handi- defines statute sachusetts capable of “who as one person” capped II. par- of a elements essential performing majority’s in the Although not addressed capable would be who job, or ticular the district conclude I also opinion, essential performing functions had that OUI found it erred when accommo- reasonable job particular August’s handi- reasonably accommodated ch. Mass.Gen.L. handicap.” to his dation a few to add I wish added). completeness, be For cap. To (emphasis 151B, 1(16) re- May 11th this issue. thoughts denied sure, OUI immediately unable quests, August its to fulfill entirely almost OUI failed only demon- fact this But to work. return reasonably accom- obligation to statutory that, accommodations absent strates OUI handicap. While August’s modate not It does work. OUI, the accommoda- argued that might have incapable of have been would prove that he an “undue placed sought tions granted. requests been working had company, it declined hardship” upon the required be cannot “[ejmployers While Instead, contends: OUI so. do ex- do not know they needs accommodate support the authority to no There is ... Co., 745 Edison Conway v. Boston ist,” by a statement that a proposition evi- (D.Mass.1990), to return he intends person that OUI case demonstrates in this dence time in unspecified at some handicap, August's only aware longer disabled is no future when necessary the accommodations also of “reasonable for a request constitutes to work. return to facilitate ex- request be A accommodation.” finder have a entitled should performing indefinitely from cused whether decide evidence hear is not a job the functions all of have been meeting he would May 11th accommoda- for a “reasonable request essential performing tion.” ac- functions, made OUI ar- 15. This Brief at Defendant-Appellee’s handicap. to his commodations the accommoda- since specious gument is majority, logic accepting the Even August had which are those at issue tions August’s heavily on rely too they I believe meeting, 11th at the requested “totally dis- of himself characterization rele- out-of-hand. rejected which 11th aftermath abled” resul- is not vant accommodation in- disability thing, the meeting. For temporary application tant medically legally are not forms surance benefits. acknowledges, it majority precise. As of Au- no mention makes brief OUI’s disability” is defined how “total is not clear few from a for absence requests gust’s The insur- policy. insurance sta- temporary meetings and disabili- “total simply describe forms ance ac- refusing to grounds for tus, or of face, itsOn “inability to work.” an ty” as not direct- also does him. OUI commodate indi- preclude definition issues these claim that ly refute claiming concurrently “quali- vidual Therefore, it was May 11th. discussed status under handicapped person” fied accept not to judge the trial Further, improper it federal) (or law. Massachusetts by the nonmov- alleged facts unrefuted advantage August took full logical that *11 summary judgment motion. in a ing party Peerless, Ins. America, Blanchard Appellee,
See UNITED STATES of Cir.1992). Without or unrea- of the reasonableness evidence ROCCIO, Defendant, Appellant. Richard re- 11th sonableness No. 92-1193. reasons for OUI’s failure quests, or the requests, simply cannot accede to those United States Court of Appeals, reasonably that OUI say as a matter of law First Circuit. August’s handicap. accommodated Submitted Nov. Decided Dec.
III. recognize August would face an
I of him at trial. To
uphill battle ahead merits, he would have to
succeed on the (1) “qualified handi-
prove that: 11, 1989; (2)
capped person” on
requests and to miss meetings
early morning constituted “rea- accommodations”; (3) his ina-
sonable caused
bility to return work was wrongful these
employer’s refusal Still, ques- these all
accommodations. are
tions of fact that should be determined evidentiary hearing, summary not on a
judgment motion. try, hard I I cannot fathom the
However
majority’s conclusion that the record in this view, “crystal my clear.” In
case presents genuine disputes over crucial
case minimum, “[tjhere is
factual matters. At a uncertainty
enough patina of a here as
to the material facts to deflect sum-
mary judgment Greenburg, axe.”
F.2d at 937. plaintiff
Because I believe this deserves court, day respectfully I must dis-
sent.