*1 Stacy DEANE, Appellant, L. CENTER.
POCONO MEDICAL
No. 96-7174. Appeals,
United States Court
Third Circuit.
Argued Jan. 1997.
Reargued En Banc Jan. 1998. April
Decided May
As Amended *2 (Argued), A. Daniel Benci- Jensen
Debra Lurie, Galfand, Berger, Brigham, Ja- venga, Jensen, Ltd., Swan, cobs, Phila- & Jurewiez PA, Stacy L. Appellant Deane. delphia, for (Argued), & Sidney Steinberg Post R. PA, Schell, P.C., Appellee Philadelphia, Medical Center. Pocono Yonier, McKinley, McKinley and Lorrie PA, PhilaPOSH, PA AFL- Philadelphia, Advocacy, PA CIO, PA Protection Injured Cu- Workers —Amicus Federation riae. Earle, Project,
Thomas Law question Disabilities the en banc court to settle the PA, Philadelphia, for PA Protection original and Ad- panel divided the —whether vocacy, Inc.—Amicus Curiae. plaintiffs, con- order ADA, sidered under must Stewart, Counsel, Gregory C. General J. *3 they perform show that are able to all of Jr., Counsel, Terry, Ray Deputy General just position the functions of the relevant Reams, Gwendolyn Young Associate General functions, with or without ac- Counsel, Davis, Lorraine C. Assistant Gener- panel commodation. The decided that Counsel, Gregory, Attorney, al Robert J. must be able to all of the func- Equal Employment Opportunity Commis- court, tions. Before the en banc neither sion, DC, Washington, Equal Employ- party supported position, and we now Opportunity ment Commission—Amicus Cu- reject it, concluding plain language that the riae. requires proof only plain- of the ADA of a 31,1997. Argued Jan. ability tiff position’s ‘s essen- tial functions. ROTH, Before: BECKER and Circuit BARRY, Judges, Judge.* District This conclusion forces us to determine 29,1998. Reargued En whether Deane Banc Jan. has adduced sufficient evi- dence to create a issue of material SLOVITER, Judge, Before: Chief respect fact with to two elements BECKER, STAPLETON, MANSMANN, misper- case: whether PMC GREENBERG, SCIRICA, COWEN, disabled; being ceived Deane as NYGAARD,ALITO, ROTH, LEWIS,** individual”, whether Deane is a McKEE, RENDELL, Judges. Circuit decision that turns on whether is an nursing essential function of Be- PMC. THE OPINION OF COURT cause we conclude that Deane has adduced BECKER, Judge.*** Chief regarding sufficient evidence both of these appeal by Stacy This is an L. Deane matters, summary we judgment hold that granting from order the district court inappropriate. Accordingly, judg- summary judgment employer, to her former ment of the district court will be reversed (“PMC”), Pocono Medical Center on De- proceed- and the case remanded further ane’s claim under the Americans with Dis- ings. (“ADA” “Act”), abilities Act panel question addressed a second seq. enacting 1201 et In greater difficulty “regarded much ADA, Congress scope intended that the —whether plaintiffs must be accommodated their the Act would extend those who employers meaning within the of the ADA. It disabled, but also to individuals be, panel well as two members of the wrongly regarded employers concluded, that after the is disa- nurse, disabled. sued improper perception bused of its of the indi- ADA PMC under the as such a disability, vidual’s there is no reason to af- to redress PMC’s failure to ac- treatment, any special ford the commodate her a manner that would en- position employee statutorily hence the following able her to retain her entitled injury employer. to accommodation work-related that affected her from the How- heavy ever, lifting.1 to do The case came before as resolution of that issue is not neees- * Maryanne Barry, Trump alleges improperly Honorable United States 1. Deane also that PMC termi- Judge Jersey, District for the District of New nated violation of the Reha- sitting by designation. 1973, seq., §§ bilitation Act of 29 U.S.C. 701 et ** Pennsylvania Judge argument and the Human Act Relations Lewis heard in this matter but ("PHRA”), §§ opinion seq. was unable to clear the due 43 Pa. to illness. Cons.Stat. Ann. 951 et *** Those claims are not before us. Becker, Honorable Edward R. States United Circuit, Judge Circuit for the Third assumed Judge February Chief status on previous appeal, position. we will her Hann then
sary disposition of this asked Car- final Clarke, Nursing, it. ol PMC’s Vice President of not decide Stine, Nursing and Susan PMC’s Director of I. Services, Care to review Resources/Patient request to return to PMC and hired Deane as April In explore possible her. accommodations for primarily on the registered nurse to work 1991, Both Clarke Stine concluded medical/surgical On floor. June previous not be in her could accommodated patient, a resistant she sustained while medical/surgical as a nurse on the floor right causing her cartilage tear in her wrist any year other available approximately one of work. to miss hospital. Finally, Manges, a Hann asked Marie Werk- Deane and Barbara June *4 heiser, Recruiter, assigned compen- workers’ PMC’s Nurse nurse to Deane’s case, any telephoned prospective PMC and advised there were current or sation McCool, openings PMC’s Benefits Coordina- for nurses at Ac- Charlene PMC. tor, Werkheiser, return to work cording that Deane intended to no such were According to De- certain restrictions. openings with at that time. ane, that she un- she informed McCool was As a result of the collective determination pounds per- 15-20 able lift more than in that Deane not could be accommodated typing, such as repetitive form manual tasks previous job any other available Osterman, physician, Dr. had but that her position hospital, PMC sent Deane an duty” “light return to work.2 released her to 7,1992. August on “exit interview” form On that, explained further to McCool Deane 10, 1992, August by Hann notified Deane light a not be accommodated in she could telephone that she could not return to work floor, duty position medical/surgical “handicap”, litigation and because of her willing to move to another area she was accepted In March ensued. Deane long could remain in hospital, as she registered nurse at a care non-acute nursing. Unfortunately, telephone call May facility, she until where remained only meaningful with interaction PMC’s by a employed Deane has been different non- during it could assessed Deane which have facility July 1993. acute care since Neither possible severity of or accommodation heavy lifting, positions require bath- of these injuries. requested PMC never addition- ing patients, the like. physicians, from Deane or her al information Deane,
and, according to when she subse- argued to the court that she Deane district attempted to on several quently contact PMC actually result of was both disabled occasions, rudely by she was McCool treated by injury perceived to and that she was be so again. not call and told judgment, re- summary the court PMC. On jected and held that Deane was speaking Manges, Deane and both theories After Hann, by regarded nor her em- PMC’s neither disabled McCool advised Barbara Vice that, Resources, ployer being disabled and even if she of Human of Deane’s President were, work, meet failed to defini- request to return of her attendant she restrictions, disability. with a need for tion of a work her stated considering court’s Shortly appealed Deane has not the district after accommodation. actually conveyed by that she was dis- McCool and af- determination information Indeed, job description “[i]n abled. she now concedes that comparing ter it to the in this medical/surgical light Hann deter- decisional trends Circuit nurse others,” not now and never was return to she. is mined that Deane was unable to wrist. believe tive motion of her She does In a letter dated June the contents Mang- nursing which were Deane and can some and I would communicated she return to telephone pediatric during suggested conversa- agree es McCool tion, their with this. She has opined Dr. Osterman as follows: nursing, nursing possibly even neonatal hospital apparent- the cancer unit at the do return unrestrict- [Deane] I not think ly lifting patients. All nursing place does involve lifting ed I limit i.e. would acceptable. repeti- pounds on unrestricted would limit and, nursing disabled functional consequently, approach, but which nurses perception PMC’s erroneous of her actual perform only types nursing would certain impairment, have no claim she would under tasks; Hoyer use of lift to move the ADA. patients. Deane maintains that also she could have been to another transferred unit left, then,
What is are Deane’s contentions pedia- within the medical center such as the that she was disabled under the terms of the trics, units, nursery ADA regard- oncology, virtue of the fact that PMC which would ed her far limitations as worse than required lifting. heavy not have In the alter- were, that PMC failed to ac- native, that she can submits restriction, commodate her and that previous of her eventually she was terminated on account of medical/surgical without floor accommo- perception PMC’s that she was disabled. dation because not an essential func- claim, support Deane relies nursing. jurisdiction tion of forth our We set “laundry on a allegedly list” of PMC’s erro- in margin.3 and standard of review perceptions. According neous PMC believed that was unable to lift II. pounds, push pull
more than anything, ten situations, patients assist emergency move *5 The core anti-discrimination section patients daily or assist in the activities of provides of the ADA that: living, perform any patient care at PMC any CPR, hospital, perform or other use the entity No shall covered discriminate body patients, rest her to assist work with against qualified a individual with a disabil- patients, psychiatric equip- or use medical ity because of the of such individ- ment. percep- Deane refutes each these in regard job application procedures, ual or, view, misperceptions in her tions — —and advancement, hiring, discharge or was, fact, injury contends that her rela- employees, employee compensation, tively minor in nature. Deane further con- terms, conditions, training, and other responsible tends that be held PMC should privileges employment. misperceptions they for these because were “snap judgment” the result of PMC’s arrived § 42 U.S.C. 12112. In order to make out a making good analysis, at without faith a in- ADA, case under facie vestigation, or assessment the nature of (1) must be able to that he establish or she injury. (2) “disability” has a ais individu- (3) al” employ- has adverse suffered Finally, Deane maintains that she disability. ment action because of See requires and is to accommodation for entitled Inc., 576, Gaul v. Lucent Techs. 134 F.3d 580 regard, In this restriction. (3d Cir.1998). contends that she could be accommodated previous position either in her as a nurse on medical/surgical through floor reas A. signment to another would not Turning prong pri- to the first
require
former,
heavy lifting. As to the
De-
case,
ma
we must determine whether
suggested
following
ane has
accommoda
(1)
Deane is disabled
the terms of
help
tions:
use of an assistant
under
the Act.
(2) implementation
patients;
“disability”
move or lift
The ADA
of a
defines a
as:
ord,
jurisdiction
light
appellate
We have
3.
over the district
when viewed in the
most favorable to
grant
summary judgment pursuant
court's
shows that
is no
§
28 U.S.C.
our standard
Because
of re-
material fact and that PMC was entitled to sum
plenary,
Kelly
University,
view is
v. Drexel
94
See,
mary judgment
e.g.,
as a matter of law.
102,
Cir.1996),
(3d
apply
F.3d
we
104
the same
Catrett,
317, 322-23,
Corp.
Celotex
477
U.S.
applied
test the
have
district court should
in the
2548, 2552-53,
(1986);
106 S.Ct.
three of the court’s
substantially limiting
ment as
them reverse order.
work.
legislative
Although
history
contrary
indi
Finally,
to the district court’s con-
clusion,
Congress
cates
about
concerned
has adduced sufficient evi-
*7
eliminating
myths, fears,
society’s
stereo
dence to create a
issue of material
prejudices
types,
respect
regarded
and
with
to the
fact
as
her
PMC
as
disabled,
Regulations
substantially
major
Inter-
activity
EEOC’s
and
limited in the
life
drome,
illness,
specif
job
emotional mental
and
not
does
constitute a substantial
limitation in
learning
major
activity working.”
ic
disabilities.
life
of
Id. In mak-
determinations,
ing
these
courts
consider:
include,
Major life
activities
but are not limited
(A)
geographical
[t]he
area to which the in-
to,
oneself,
caring
per-
"functions such as
access;
dividual has reasonable
tasks,
forming
walking,
hearing,
seeing,
manual
(B)
[t]he
from which
individual has
learning,
working,"
speaking, breathing,
and
disqualified
impairment,
been
because of an
1630.2(i),
§
"sitting,
C.F.R.
as
well as
stand-
jobs
types
utilizing
and the number
of
and
ing, lifting,
reaching."
pt.
[and]
training, knowledge,
similar
skills or abili-
1630.2(i);
§
app.
Report at
House Labor
ties,
area,
geographical
within that
from
334;
reprinted in 1990 U.S.C.C.A.N. at
House
disqualified
also
which
individual
be-
Judiciary Report
reprinted
at
in
(class
impairment
jobs);
cause
U.S.C.C.A.N.
and/or
(C)
Where,
here,
[t]he
from which the individual
major
activity
has
as
life
disqualified
impairment,
working,
been
because of an
"substantially
the term
limited” is
types
jobs
and
number and
of other
"significantly
ability
defined as
restricted in the
utilizing
training, knowledge,
jobs
range
similar
skills
or a
either
class
broad
abilities,
area,
jobs
geographical
compared
within that
to the
various classes
average person having
training,
disqualified
comparable
which the
is also
from
individual
Olson,
(broad range
impairment
because of the
skills and abilities.”
mony from PMC officials with her actual level physical of Deane’s ment, to the extent sion as and of De- whether PMC’s pulling, pushing, capacity, regard with “significante ] restriction] ane constituted also evidence that PMC lifting. There is either a class [Deane’s] exaggerat- fundamentally misunderstood jobs jobs range or a broad in various injury im- that the wrist ed the limitations compared average person classes as to the Moreover, apparent PMC’s posed on Deane. training, comparable having skills abili- in line other testi- misunderstanding is 1630.2(j)(3)(i). § has ties.” 29 C.F.R. Deane mony did not evaluate that PMC that PMC thus adduced sufficient evidence independently re- physicians, her contact substantially regarded physical- more records, but rather relied view medical was, ly impaired than she and that it had telephone conversation solely on one correct, misperception, PMC’s would satis- with Deane. Therefore, fy 1630.2(j)(3)(i) threshold. produced the affidavit and re- also summary judgment inap- on this issue was Rappucci, ex- her vocational port of Daniel propriate.8 explained import of PMC’s pert, who injury. Rappucci con- perception of B. impaired to the had Deane been cluded allegedly perceived extent element of Deane’s The second precluded from consider- been would have requires case under the ADA her to her cho- employment, both within ation individu demonstrate that she is range wide profession sen and within a The this term as an indi al”. ADA defines region. Rappuc- jobs geographic within “who, ac with or without reasonable vidual opined that Deane would have ci further commodation, perform the essential performing precluded been employment position functions of jobs service-produc- available many of the holds or desires.” 42 U.S.C. such individual industries, (including transportation, ing 12111(8). Interpretive Guidance estate, wholesale/retail, finance, hospi- real Regulations inquiry divides this the EEOC industries, services, tality pro- medical First, prongs. into two a court must deter services), up which made 83% fessional req mine whether the individual satisfies 41,000 jobs non-agricultural in Deane’s skill, experience, education and other uisite residence, of the county of but also most job-related requirements of the (con- jobs goods-producing industries such holds or desires. construction, mining, manufactur- tract 1630.2(m). pt. app. remaining of See ing), comprised the 17% Second, the indi it must determine whether positions. with the available PMC counters vidual, attempted to reasonable accommo argument that it accommodate with or without *8 light-duty dation, by placing in other functions of perform can the essential available, id.; if positions when and became sought. see position held or did not suggests that PMC and that this Wayne Newspapers, also Bombard Fort to be disabled. PMC submits (7th believe Deane Cir.1996); 560, 563 Benson 92 F.3d only that PMC con- its actions indicate Airlines, Inc., 62 F.3d v. Northwest incapable performing to be sidered Deane (8th Cir.1995). not Because PMC does precluded from certain functions qualifications a dispute general nursing. returning to nurse, on the need not dwell we analy clear, step “qualified first individual” makes preceding discussion As however, disputes over how sis. factual there are Thus, vein, according to suggest that modation at face value. PMC seems to
8.
In a related
PMC,
relationship
discharged
its
between the al-
because of
there is no causal
Deane was
leged
discharge
misperception
and Deane’s
a
misperception.
is also
But there
original
well,
statement
PMC took Deane's
III.
Parts II.B.2 and
of fact here as
infra
major accom-
could do no
and needed
Determining whether an individual
can, with or without reasonable accommoda
prohibits
ADA
a “covered enti
The
tion, perform the essential functions of the
ty”
discriminating against
“qualified
a
position
sought,
pro
step
held
also a two
disability.”
individual with a
cess,
First,
relatively straightforward.
is
a
12112(a).
12111(8),
Section
which defines
court
consider
must
whether the individual
term,
the latter
reads:
perform
job
can
the essential functions of the
so,
“qualified
without
The term
with a
accommodation. If
the individual
individual
dis-
(and,
qualified
fortiori,
ability”
is
a
to
means an individual
a
entitled
with disabil-
accommodation).
who,
not,
ity
with
If
then a
must
or without reasonable ac-
court
commodation,
perform
look
perform
to whether the individual can
the essential
job
employment position
a
functions of the
functions of
with
so,
reasonable
If
such individual holds or
For
accommodation.9
the indi
desires.
not,
qualified.
purposes
subehapter,
vidual
If
is
the individual has
consideration
necessary
given
employer’s judgment
failed to set out a
shall be
to the
element of the
essential,
what
case.
as to
functions of
are
employer
prepared
an
has
a written
majority
opinion,
panel
The
in decid
description
advertising
before
or inter-
ing
satisfy
reasoned that
viewing applicants
job,
for the
this de-
step,
first
must
scription shall be considered evidence of
showing
make
that he
she could
job.
the essential functions of the
(with
all the
or without
accommodation),
12111(8)
just
its
plain
unambiguous.
essential func Section
section,
tions. PMC disassociated itself from the
first
sentence of that
makes it
position
panel’s
before
phrase
the en banc court. As
clear that the
“with or without rea-
construction,
issue is one of
directly
sonable accommodation” refers
step
“first
interpreting
Indeed,
a statute
“essential functions”.
noth-
language
ing
sentence,
determine whether the
at issue has
in the
other than “essential
plain
functions”,
unambiguous meaning
with re
to which “with or without reason-
gard
particular dispute
to the
Moreover,
the ease.”
able accommodation” could refer.
Co.,
337,-,
Robinson v. Shell Oil
nowhere else in
Act
does it state
(1997).
individual”,
117 S.Ct.
136 L.Ed.2d
be a
an individual must
[mjodifications
general,
(ii)
any change
"In
an
adjustments
accommodation is
to the
environment,
way things
in the work environment or in the
work
or to the manner or cir-
customarily done that
with
enables
cumstances under
held or
disability
enjoy equal employment
opportu-
customarily performed,
desired is
that en-
1630.2(o).
pt.
app. §
nities." 29 C.F.R.
qualified
able
individual with a
provides
The text of the ADA
that "reasonable
posi-
of that
essential functions
may
accommodation"
include—
tion; or
(iii) [mjodifications
adjustments
that en-
(A) making existing
by em-
facilities used
entity’s employee
a covered
able
with a dis-
readily
ployees
to and
accessible
usable
equal
enjoy
privileges
disabilities;
benefits and
individuals
enjoyed
of
similarly
as are
its other
(B) job restructuring, part-time or modified
employees
situated
schedules,
without disabili-
reassignment
posi-
work
tion,
to vacant
ties.
acquisition
equip-
or modifications of
1630.2(o)(l).
devices,
appropriate adjustment
ment or
right
examinations,
An individual’s
to reasonable accommo-
training
modifications
ma-
however,
subject,
dation
limi-
policies,
certain
provision
terials or
example,
For
tations.
is not re-
interpreters,
readers or
and other similar
*9
quired
provide
to
if it
accommodation
would
accommodations for individuals with disabil-
impose
hardship”
employer
an "undue
on the
ities.
12111(9)
added).
§ 1630.2(p).
in 29
(emphasis
defined
C.F.R.
An
Regulations
required
provide
also is not
The EEOC
further define
to
accommodation if
"reason-
poses
able
the individual
a "direct
accommodation” to include
threat” to the
himselfyherself
(i)[mjodifications
adjustments
job
safety
to a
health
or others un-
process
application
qualified
that enable a
less such accommodation would either eliminate
applicant
acceptable
with a
to be considered
such risk or reduce it to an
level. 29
desires;
1630.2(r).
position
applicant
for the
such
heavy lifting
doing
of the
she is restricted
ability
perform all
prove
or her
to
his
job
the Act
job, and nowhere in
is
an essential
function of a nurse.
of the
functions
per-
profession
actual
distinguish
nursing
it
between
as a
does
Deane describes
skill, intellect,
of the threshold
in terms
primarily
ceived disabilities
and
focusses
Therefore,
if an
qualifications.
showing of
knowledge.
conceding
lifting
con-
While
functions
perform the essential
duties,
individual can
part of
she submits
stitutes
a nurse’s
job
as to those
accommodation
without
part.
that it is
small
individ-
functions, regardless of whether the
contentions,
again
support
In
of her
Deane
job
of the
perform
ual
the other functions
can
Rappucci’s
report. Rap-
affidavit and
offers
(with
accommodation), that indi-
or without
care,
patient
heavy
pucci opines
ADA.
is
under the
vidual
lifting
patients,
is the
function of
essential
history
confirms this view.
of the ADA
evidence,
registered nursing. As
he refer-
accompanied
reports that
In the committee
Department
Dictionary
of Labor’s
ences
ADA,
spoke directly to the
Congress
Descriptions
Occupational
Job
Titles
adopted in the stat-
qualifications standard
(“DOL Dictionary”), which details four criti-
Congress
stated that
Repeatedly,
ute.
nurse,
duty
general
none of
cal tasks of
individ-
qualifications
turned on the
standard
(1)
heavy lifting:
involves
administer-
func-
ability
perform the “essential
ual’s
(2)
treatments,
prepar-
ing
and
medications
job.
e.g.,
House Labor
tions” of the
aiding
during
ing equipment
physicians
and
55, reprinted, in 1990
Report at
U.S.C.C.AN.
patients,
observing pa-
the treatment
32-33,
337;
Judiciary Report at
House
significant
recording
conditions
tients and
at 455.
reprinted in 1990 U.S.C.C.AN.
Con-
treatments,
sig-
drugs,
and reactions to
on an
Act focused
gress explained that the
incidents,
taking tempera-
nificant
perform
func-
“essential
individual’s
ture,
pressure,
pulse,
and other vital
blood
persons with disabilities
to ensure that
tions”
from normal
signs to detect deviations
inability
disqualified
of the
because
“not
patient. Rappucci
assess the condition of the
marginal func-
perform
non-essential
nursing
professional
is a
occu-
also notes
job.”
Judiciary Report at
House
tions of the
compares
orderly
pation, and he
it with
work
at 454.
reprinted
1990 U.S.C.C.A.N.
exemplify
the two
the differences between
report,
pur-
As
in one committee
stated
nursing
positions.
example,
For
is
whereas
qualifications
ADA’s
standard
pose of the
Department of Labor
classified
continue to
employers
can
“ensure
labor,
skilled,
orderly
duty
work is
medium
employees,
require
applicants
that all
semi-skilled, heavy-duty
labor.
classified
disabilities,
including
are able
those
Also,
general
criti-
none of a
nurse’s
whereas
functions, i.e., the non-
perform the essential
Dictionary descrip-
under the DOL
cal tasks
job
question.”
marginal
of the
orderly
description of
lifting, the
tion include
55, reprinted in 1990
Report
Labor
House
“lift[ing] patients onto and
enumerates
work
added).
(emphasis
at 337
U.S.C.C.AN.
five. This
as critical task number
from bed”
orderly
because,
according
profession-
position
the nurse
exists to assist
rejected
Having
panel’s
or her
duties.
performance of his
al in the
showing that
to make a
that Deane needed
that, recognizing
Finally,
points out
Deane
of the functions
she can
all
heavy lifting,
difficulty of unassisted
job,
determine whether
former
we must now
lifting
approach to the
a team
PMC uses
has,
fact,
sufficient evi
adduced
re-
in routine matters
patients, both
summary judgment on the
dence to survive
emergency
sponding
situations.10
the essen
question
responds that
essential
accommoda
of the
without
tial functions
support, PMC cites
function of nurse.
Deane claims that
tion as to those functions.
in that
with function
this confuses method
that PMC misdefines
Rappucci also contends
task,
accomplishing
rath-
position (e.g.,
is a
method
of the nurse
the essential functions
specific job
in relation to
bags
"major
function
including lifting
laundry
er than
as a
*10
nursing.
Rappucci argues
responsibility”).
duty
task
and
job description, which
its
details under the ment as to
are essential” and
which functions
TASKS,
heading
job descriptions
“MAJOR
DUTIES AND
prepared
“written
before ad-
that
one of
the
vertising
applicants”
RESPONSIBILITIES”
interviewing
are two
reg-
“WORKING
for a staff
CONDITIONS”
possible types
determining
of evidence for
“[f]requent
nurse is
of
lifting
istered
the
position,
the
a
that
essential functions of
but
patients.”11 PMC also notes that Deane con-
given greater
is
be
such evidence
not
to
job description
ceded that the
“an
PMC
weight simply because it is
the
included
tasks,
of
accurate reflection
the
duties and
non-exclusive
list
set
out
responsibilities
qualifications,
well
as the
1630.2(n)(3).
§
pt.
app.
See 29 C.F.R.
physical
requirements
working
and
condi-
1630.2(n). Thus,
not,
job description
the
is
registered
[PMC],”
a
tions of
nurse at
and
contends,
as PMC
incontestable
evidence
among
that
her “critical
demands”
patient
lifting
is an
unassisted
essential
(1)
placement
patients in
PMC were:
the
of
Moreover,
job.
function of Deane’s
the
closets,
gurneys,
water
the
tub chairs or
Regulations
provide
EEOC
also
while
changing
patients,
of
the
and
“inquiry into
is
the essential
functions
lifting
laundry bags.
pieces
These
of evi-
guess
employer’s
intended to second
an
busi-
dence,
multiple
contends
constitute
ad-
judgment
regard
production
ness
with
to
by
lifting
missions
Deane that
is
essential
standards,”
particular
a
function
whether
is
registered
of a staff
function
nurse at PMC.
essential
“is a factual
determination
Finally,
consequences
PMC asserts that
the
by
a
[based
must made on case
ease basis
inability
of a nurse’s
to
patients
lift
could
upon]
(emphasis
all relevant evidence.”
Id.
dangerous
hospital
create a
situation in the
added). Finally,
import
the
of the rest of
for
patients.
Deane and her
admissions,
(e.g.,
alleged
PMC’s evidence
etc.)
apply
by
We
disputed
decline
conclusive effect
is
Deane. For all these
reasons,
job description
judg-
either
or PMC’s
we find that there is
heavy lifting
ment as to whether
is essential
of material
fact
the issue
whether De-
job.
Interpretive
to Deane’s
qualified
EEOC’s
ane was a
individual under
employer’s judg-
Guidance indicates that “the
ADA.12
job description
Rappucci
employers
criticizes
for uti-
from their
as are
disabled
lifting
that,
lizing
language
incorrect
plaintiffs.
just
describe
She reasons
as we found
requirements.
example, according
For
plain
reading
only requires
that a
ADA
Labor,
Department
"frequent
pa-
plaintiffs
they
perform
show
can
es-
performed
task
tients” means that the
is
33%
job, plain reading
sential
of the
functions
of the
day,
approximately
3-5
66% the
hours over
"qualified
definition of
individual" demonstrates
eight hour
work shift. Deane contends that
"regarded
long
as”
is
so
inaccurate)
(and
description
implausible
perform
as she can
the essential functions with
testimony.
conflicts
other
For exam-
reasonable
accommodation.
See 42 U.S.C.
ple,
Campagna,
registered
Joan
staff nurse at
12111(8) (defining
"qualified
individual” as
since
swore in her affidavit that
“who,
one
dation,
with or without reasonable accommo-
typically spends only
day
per
PMC nurse
minutes
of the
beds,
repositioning patients
transferring
in their
employment position that such individual holds
versa,
patients
gurney
from bed to
or vice
desires”);
1630.2(m).
also
moving patients
into
out of wheelchairs.
Moreover,
plain reading
Deane submits that
Moreover, Campagna notes that these tasks are
by
Supreme
of the statute is buttressed
nearly always accomplished by
people
two
Arline,
Court's decision
480 U.S. at
orderlies,
employs
practical
that PMC
licensed
that,
(holding
149
deeision,
importance
highlighted the
we
C.
cooperation
communication and
between em-
can easi
Finally,
that Deane
we find
ployers
employees
seeking
reasonable
prong of her
ly
third
establish the
Specifical-
See id.
accommodations.
August
call
The
case.
that, in
ly, we noted
the context
the Reha-
of her
terminating Deane because
Hann
Act,
parties
duty
have a
bilitation
“both
direct evidence
“handicap” is uncontroverted
appropriate
in the search for
reason-
assist
an adverse
Deane suffered
good
act
able accommodation and to
employer’s perception
action because of
ease,
single
at 420.
In this
the
faith.”13 Id.
Kinney
disability.
v.
of her
See Martinson
telephone
interaction between Deane and
(4th Cir.1997)
683,
104 F.3d
686
Corp.,
Shoe
hardly
our
McCool at PMC
satisfies
standard
(“When
concededly discharges
an
employer make “reasonable efforts
disability,
the em
employee
because of
employee],
to communicate with
[the
assist
nothing
meet the
prove
more to
ployee need
faith,
good
impede
him in
to not
his
test.”).
prima facie
prong of the
third
(cita-
employment].”
investigation
Id.
[for
omitted).
may turn out
tions
While it
III.
im-
reasonable accommodation for
reasons,
foregoing
For
(or
required
she is a
possible
because
be re
of the district court will
judgment
nevertheless,
plaintiff),
an em-
to the district
the case remanded
versed and
ployer
engage
fails to
in the interactive
who
proceedings
for further
consistent
court
it
process
a serious risk that will erro-
runs
ground
not a
of our
opinion. Although
neously
opportunity
overlook an
accommo-
decision,
opportunity to observe
take this
we
statutorily
employee, and
date a
disabled
(and
ongoing)
very much
protracted
thereby
Id. at 420-21.
violate the ADA.
unnecessary
likely have been
litigation would
GREENBERG,
Judge, dissenting.
Circuit
seriously
precepts
parties
taken
had
respectfully
recognize,
I
I
Mengine
v.
dissent.
opinion
Run
in our
announced
Cir.1997).
course,
with a
(3d
In
that a
yon,
ine fact issue material as to “whether misperceived disabled.”
Maj. Op. at that dispute 140. But does not
matter, critical is not how PMC simply
viewed Deane because no
escape that an from the fact essential ele-
ment of Deane’s failed ease is “PMC