
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-1093                                     BONNIE COOK,                                 Plaintiff, Appellee,                                          v.                               STATE OF RHODE ISLAND,                DEPARTMENT OF MENTAL HEALTH, RETARDATION, AND HOSPITALS,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Coffin, Senior Circuit Judge,                                    ____________________                           and Barbadoro,* District Judge.                                           ______________                              _________________________               John L.P. Brequet for appellant.               _________________               Lynette Labinger, with whom  Roney & Labinger was  on brief,               ________________             ________________          for appellee.               Mary  L.  Clark, with  whom  James  R.  Neeley, Jr.,  Deputy               _______________              ______________________          General  Counsel,  Gwendolyn   Young  Reams,  Associate   General                             ________________________          Counsel,  and  Vincent J.  Blackwood, Assistant  General Counsel,                         _____________________          were on brief  for U.S. Equal Employment  Opportunity Commission,          amicus curiae.                              _________________________                                  November 22, 1993                              _________________________          __________          *Of the District of New Hampshire, sitting by designation.                    SELYA,  Circuit Judge.    This pathbreaking  "perceived                    SELYA,  Circuit Judge.                            _____________          disability" case  presents a  textbook illustration  of the  need          for,  and  the  operation of,  the  prohibition  against handicap          discrimination contained in section 504 of the Rehabilitation Act          of 1973,  29 U.S.C.    794 (1993 Supp.).   Concluding, as  we do,          that plaintiff's proof  satisfied the burdens articulated  by the          district court in its jury  instructions, we uphold the denial of          defendant's various  post-trial motions  and affirm the  judgment          below.          I.  BACKGROUND          I.  BACKGROUND                    At  the  times   material  hereto,  defendant-appellant          Department of Mental Health, Retardation, and Hospitals (MHRH), a          subdivision  of the Rhode  Island state government,  operated the          Ladd  Center  as  a residential  facility  for  retarded persons.          Plaintiff-appellee Bonnie Cook worked at Ladd as an institutional          attendant  for the mentally  retarded (IA-MR) from  1978 to 1980,          and  again  from   1981  to  1986.    Both   times  she  departed          voluntarily,   leaving  behind  a  spotless  work  record.    The          defendant   concedes  that  Cook's   past  performance   met  its          legitimate expectations.                    In 1988,  when plaintiff  reapplied  for the  identical          position,  she  stood  5'2"  tall and  weighed  over  320 pounds.          During the  routine pre-hire physical,  a nurse employed  by MHRH          concluded  that  plaintiff  was  morbidly  obese1  but  found  no                                        ____________________               1The medical profession considers a person morbidly obese if          she weighs either more than twice her optimal weight or more than          100 pounds  over her optimal weight.   See Merck Manual  950, 953                                                 ___ ____________                                          2          limitations  that  impinged  upon  her ability  to  do  the  job.          Notwithstanding that  plaintiff passed the  physical examination,          MHRH  balked.  It claimed  that Cook's morbid obesity compromised          her ability to  evacuate patients in case of an emergency and put          her at greater risk of developing serious ailments (a "fact" that          MHRH's  hierarchs  speculated   would  promote  absenteeism   and          increase  the   likelihood  of  workers'   compensation  claims).          Consequently, MHRH refused  to hire plaintiff for  a vacant IA-MR          position.                    Cook did not go quietly into this dark night.  Invoking          section  504, she  sued MHRH  in federal  district court.2   MHRH          moved to  dismiss the  complaint, see Fed.  R. Civ.  P. 12(b)(6),                                            ___          averring  that morbid  obesity can  never  constitute a  handicap          within the meaning of the Rehabilitation Act.  The district court          denied the motion.   See Cook v. Rhode Island, 783  F. Supp. 1569                               ___ ____    ____________          (D.R.I. 1992).  Pretrial discovery followed.                    In due  season, the parties  tried the case to  a jury.          At  the close of the evidence, appellant  moved for judgment as a          matter of law.  The court reserved decision, see Fed. R.  Civ. P.                                                       ___                                        ____________________          (15th ed. 1987).  While Cook  had been corpulent during her prior          tours  of  duty, she  had  not then  attained a  state  of morbid          obesity.               2Plaintiff's  suit also  contained  counts  under the  Rhode          Island Fair Employment Practices Act, R.I. Gen. Laws    28-5-1 to          28-5-40 (1992 Supp.), and under  the Rhode Island Civil Rights of          Individuals with Handicaps Act, R.I.  Gen. Laws    42-87-1 to 42-          87-4 (1992 Supp.).  Since  all parties proclaim that the elements          and standards of a handicap discrimination claim are no different          for present purposes  under Rhode Island law   than under federal          law, we need not independently address the state-law claims.                                          3          50(a),  and submitted  the case  on  special interrogatories  (to          which appellant   interposed no  objections).  The  jury answered          the interrogatories favorably  to plaintiff3 and, by means of the          accompanying   general   verdict,   awarded   her   $100,000   in          compensatory damages.    The district  court  denied  appellant's          motions for judgment  as a  matter of  law and for  a new  trial,          entered  judgment on the verdict, and granted equitable relief to          the plaintiff.    MHRH lost  little time  in filing  a notice  of          appeal.          II.  STANDARD OF REVIEW          II.  STANDARD OF REVIEW                    This appeal contests  liability, not  remediation.   As          formulated  by  MHRH, the  appeal  turns  on  whether  there  was          sufficient evidence  to permit  a verdict  in plaintiff's  favor.          Thus,  appellate  review  is  plenary.    See  Rolon-Alvarado  v.                                                    ___  ______________          Municipality of San  Juan, 1 F.3d 74, 77 (1st Cir. 1993); Jordan-          _________________________                                 _______          Milton Mach., Inc. v. F/V Teresa Marie, II, 978 F.2d 32,  34 (1st          __________________    ____________________          Cir. 1992).   A  reviewing court applies  the same  standard that          governed  adjudication   of  the  Rule  50  motion   below:    we          "scrutiniz[e] the proof and the inferences reasonably to be drawn          therefrom  in  the  light  most  hospitable  to  the  nonmovant,"          Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir. 1987), refraining          _________    _____          entirely from "differential  factfinding," Rolon-Alvarado, 1 F.3d                                                     ______________          at 76.  In the process,  we may "not consider the credibility  of                                        ____________________               3The  jury found, inter alia, that plaintiff, apart from her                                 _____ ____          handicap  or perceived  handicap, was  qualified  to perform  the          duties  of the  IA-MR position;  and that  the defendant  did not          reasonably believe plaintiff lacked such qualifications.                                          4          witnesses, resolve conflicts in testimony, or evaluate the weight          of the evidence."  Wagenmann, 829 F.2d at 200.  We can overturn a                             _________          jury's verdict and  grant judgment in favor of  the verdict loser          only if  the evidence, so  viewed, is such that  reasonable minds          could not help  but reach an  outcome at  odds with the  verdict.          See  Rolon-Alvarado,  1  F.3d  at  77; Veranda  Beach  Club  Ltd.          ___  ______________                    __________________________          Partnership v. Western Sur. Co., 936 F.2d 1364, 1383-84 (1st Cir.          ___________    ________________          1991).                    In  this case, appellant also moved for a new trial.  A          trial  court's denial  of such  a  motion is  examined through  a          somewhat different  glass.  See  Wagenmann, 829  F.2d at  200-01.                                      ___  _________          But, although appellant  makes a passing  reference to the  trial          court's  ruling  in   this  respect,  it  presents   no  reasoned          discussion  of, or  analysis addressed  to, the new  trial issue.          That ends  the matter.   We are  firm adherents to  the principle          "that issues adverted  to on appeal in a  perfunctory manner, not          accompanied by some  developed argumentation, are deemed  to have          been abandoned."  Ryan v. Royal Ins.  Co., 916 F.2d 731, 734 (1st                            ____    _______________          Cir. 1990); accord United States v. Zannino, 895  F.2d 1, 17 (1st                      ______ _____________    _______          Cir.), cert. denied, 494 U.S. 1082 (1990).                 _____ ______          III.  ANALYSIS          III.  ANALYSIS                      In handicap discrimination  cases brought pursuant to          federal  law,  the  claimant bears  the  burden  of  proving each          element of her chain.   See Joyner by Lowry v.  Dumpson, 712 F.2d                                  ___ _______________     _______          720, 724 (2d  Cir. 1983); Sedor v.  Frank, 756 F. Supp.  684, 686                                    _____     _____          (D. Conn.  1991).   The elements derive  from section 504  of the                                          5          Rehabilitation  Act,  which  provides in  relevant  part:   "[n]o          otherwise qualified individual  . . . shall, solely  by reason of          her or his disability, . . . be subjected to discrimination under          any program or activity receiving  Federal financial assistance."          29 U.S.C.   794(a).   To invoke the statute in  a failure-to-hire          case, a claimant must  prove four things:   (1) that she  applied          for  a post in a federally funded  program or activity, (2) that,          at the time,  she suffered from a cognizable  disability, (3) but          was, nonetheless, qualified  for the position,  and (4) that  she          was not hired due solely to  her disability.  Here, MHRH concedes          that it received substantial federal funding for the operation of          the Ladd  Center.   We turn,  then, to the  remaining links  that          forge the chain.  We subdivide our discussion into five segments,          the first three of which deal directly with the existence vel non                                                                    ___ ___          of a covered impairment (actual or perceived).                                          A                                          A                    The plaintiff proceeded below on a perceived disability          theory, positing  that she was fully able  although MHRH regarded          her as physically  impaired.  These allegations state  a cause of          action  under  the  Rehabilitation Act,  for  the  prophylaxis of          section  504 embraces  not only  those  persons who  are in  fact          disabled,  but  also  those  persons   who  bear  the  brunt   of          discrimination  because   prospective  employers  view   them  as          disabled.   See 29 U.S.C.    706(b) (defining a  disabled person,                      ___          for  Rehabilitation Act purposes, as any person who actually has,          or who "is regarded" as  having, a "physical or mental impairment                                          6          which substantially limits one or more of such persons major life          activities").  Up to this  point in time, however, few "perceived          disability"  cases   have  been   litigated  and,   consequently,          decisional law involving the interplay  of perceived disabilities          and section 504 is hen's-teeth rare.   Thus, this case calls upon          us to explore new frontiers.                    Our  task  is  greatly simplified  because  regulations          implementing the Rehabilitation Act,  promulgated by the  federal          Equal Employment  Opportunity Commission (EEOC), limn  three ways          in which a person can qualify for protection under section 504 on          the basis  of a perceived  disability.4  The trial  court charged          the jury that it could consider plaintiff's claim under the first          and third methods,  but not under the second.   The plaintiff has          not cross-appealed  from this determination,  so we leave  to one          side  cases  which, unlike  this  one, arguably  come  within the                                        ____________________               4The regulations cover  persons who are "regarded  as having          an  impairment," and  provide that  the quoted  phrase refers  to          someone who:                    (A) has  a physical or mental impairment that                    does  not  substantially   limit  major  life                    activities but that is treated by a recipient                    as constituting such a limitation; (B) has  a                    physical    or    mental    impairment   that                    substantially  limits  major  life activities                    only as a  result of the attitudes  of others                    toward such  impairment; or  (C) has none  of                    the impairments defined in . . . this section                    but  is treated by a recipient as having such                    an impairment.          45 C.F.R.    84.3(j)(2)(iv)  (1992).  The  word "recipient"  is a          shorthand reference to a recipient  of federal funding, and, in a          failure-to-hire  case,  signifies  a  prospective employer  whose          "program or  activity receiv[es]  Federal financial  assistance."          29 U.S.C.   794(a).                                          7          purview of 45 C.F.R.   84.3(j)(2)(iv)(B).                    It   is  noteworthy   that   section  504's   perceived          disability  model  can be  satisfied  whether  or  not  a  person          actually has a  physical or mental impairment.   See 45  C.F.R.                                                             ___          84.3(j)(2)(iv).    It  is also  noteworthy  that  the regulations          define  the  term  "physical or  mental  impairment"  broadly; it          includes, inter  alia, any  physiological  disorder or  condition                    _____  ____          significantly   affecting   a   major   bodily   system,    e.g.,                                                                      ____          musculoskeletal,  respiratory,  or  cardiovascular.   See  id.                                                                   ___  ___          84.3(j)(2)(i)(A).    The  term  also  encompasses  disorders  and          conditions "whose precise nature is  not at present known."  Id.,                                                                       ___          App.  A, Subpart  A(3), at 377  (1992).  And  the regulations are          open-ended; they do not purport to "set forth [an exclusive] list          of  specific  diseases  and  conditions  . .  .  because  of  the          difficulty of ensuring  the comprehensiveness of any  such list."          Id.          ___                    This  regulatory  framework  sets  the  stage  for  our          analysis.  In order to prevail on her perceived disability claim,          Cook had  to show  either that (1)  while she  had a  physical or          mental impairment, it did not substantially limit her  ability to          perform major life activities, 45 C.F.R.   84.3(j)(2)(iv)(A), or,          alternatively,  that  (2)  she  did  not suffer  at  all  from  a          statutorily  prescribed  physical  or mental  impairment,  id.                                                                        ___          84.3(j)(2)(iv)(C);5 and she also  had to prove that  MHRH treated                                        ____________________               5The difference  between these  showings is  often not  very          great.   For example,  a reviewing  court generally  must examine          much the same  evidence to determine if plaintiff  had an actual,                                          8          her  impairment (whether  actual or  perceived)  as substantially          limiting  one or  more  of  her major  life  activities.   Id.                                                                        ___          84.3(j)(2)(iv)(A),  (C).   Although  the  jury did  not  return a          special finding as to whether plaintiff actually had a cognizable          impairment, or  was merely  regarded by MHRH  as having  one, the          district court,  without objection, charged  in the  alternative;          hence, plaintiff is entitled to prevail on this appeal so long as          the evidence  supports recovery under  one of these  theories. In          this instance, we believe the record comfortably justifies either          finding.  We explain briefly.                    On  one hand, the jury could  plausibly have found that          plaintiff  had a physical  impairment; after all,  she admittedly          suffered  from morbid obesity, and she presented expert testimony          that  morbid  obesity  is a  physiological  disorder  involving a          dysfunction of  both the  metabolic system  and the  neurological          appetite-suppressing  signal system,  capable of  causing adverse          effects    within   the    musculoskeletal,   respiratory,    and          cardiovascular systems.  On the  second hand, the jury could have          found  that plaintiff, although  not handicapped, was  treated by          MHRH  as if she had a physical impairment.  Indeed, MHRH's stated          reasons for its refusal to hire   its concern that Cook's limited          mobility impeded her  ability to evacuate patients in  case of an          emergency, and its fear  that her condition augured a  heightened          risk  of  heart  disease, thereby  increasing  the  likelihood of          workers'  compensation  claims     show  conclusively  that  MHRH                                        ____________________          but non-limiting, impairment, or if she had no impairment at all.                                          9          treated  plaintiff's obesity  as  if  it  actually  affected  her          musculoskeletal and cardiovascular systems.6                                          B                                          B                    Appellant counterattacks on two fronts.   Neither foray          succeeds.                     1.  Mutability.    MHRH baldly asserts  that "mutable"                     1.  Mutability.                         __________          conditions are  not the  sort of impairments  that can  find safe          harbor in the lee of section 504.  It exacuates this assertion by          claiming  that morbid  obesity is a  mutable condition  and that,          therefore, one who suffers from  it is not handicapped within the          meaning of the federal law because she can simply lose weight and          rid herself of any concomitant disability.  This suggestion is as          insubstantial as a pitchman's promise.                    We  think it is  important to recognize  that appellant          has no legitimate complaint about the  trial court's choice among          the possible  variations  on the  applicable  legal theme.    The          district  judge sang appellant's  song, instructing the  jury, at          appellant's  urging,  that a  "condition  or disorder  is  not an          impairment unless  it .  . .  constitutes an  immutable condition          that the  person  affected  is  powerless to  control."7    Thus,                                        ____________________               6We note, moreover, that MHRH's  decisionmaker, Dr. O'Brien,          voiced  the belief that  morbid obesity affects  "virtually every          [body]   system,"    including   the    cardiovascular,   immune,          musculoskeletal, and sensory systems.               7We  believe  the  lower court's  basic  proposition    that          immutability is  a prerequisite to  the existence of  a permanent          impairment cognizable under  section 504, see Cook, 783  F. Supp.                                                    ___ ____          at 1573   is problematic.  Mutability is nowhere mentioned in the          statute or regulations, and we  see little reason to postulate it          as an automatic disqualifier under section  504.  It seems to us,                                          10          appellant's mutability  complaint is necessarily addressed to the          facts.  As such, it is belied by the record.                    In deciding this issue, the jury had before it credible          evidence that metabolic  dysfunction, which leads to  weight gain          in the  morbidly obese,  lingers even after  weight loss.   Given          this evidence, the jury reasonably could  have found that, though          people afflicted with morbid obesity can treat the manifestations          of metabolic dysfunction by fasting or perennial undereating, the          physical  impairment itself    a  dysfunctional  metabolism    is          permanent.   Cf. Gilbert  v. Frank,  949 F.2d  637, 641  (2d Cir.                       ___ _______     _____          1991)  (finding  that  kidney  disease   controllable  by  weekly          dialysis constitutes a handicap under   504 of the Rehabilitation          Act);  Reynolds v.  Brock,  815  F.2d 571,  573  (9th Cir.  1987)                 ________     _____          (holding  that epilepsy controllable by medication qualifies as a          handicap  under    504).   Hence,  the jury's  resolution of  the          mutability question  rested on a sufficiently  sturdy evidentiary          platform.                    There  is,   moreover,  another   dissonant  chord   in          appellant's  paean  to  mutability.   Even  if  immutability were          normally  a prerequisite to finding a  covered impairment, as the          district  court's  charge  suggested, the  logic  of  a perceived                                        ____________________          instead,  that mutability  is relevant  only  in determining  the          substantiality of the limitation flowing from a given impairment.          So viewed,  mutability only  precludes those  conditions that  an          individual   can  easily   and  quickly  reverse   by  behavioral          alteration from coming  within section 504.  But,  in the absence          of a contemporaneous objection, the  charge became the law of the          case; and in  any event, the district court's  error is harmless,          for it worked to appellant's advantage.                                          11          disability case, as embodied in  the regulations, see 45 C.F.R.                                                              ___          84.3(j)(2)(iv)(C),  would   nonetheless  defeat   the  doctrine's          application.  So  long as the prospective employer  responds to a          perceived disability in a way  that makes clear that the employer          regards the condition as  immutable, no more is exigible.   So it          is here:   based on Dr. O'Brien's testimony,  the jury reasonably          could have inferred  that he regarded plaintiff's  morbid obesity          as  an "impairment of  a continuing  nature,"   Evans v.  City of                                                          _____     _______          Dallas, 861 F.2d 846, 853 (5th Cir. 1988) (citation omitted), and          ______          that he rejected her application on that basis.8                    2.  Voluntariness.  Appellant's  second assault regains                    2.  Voluntariness.                        _____________          no  ground.   MHRH asseverates  that, because  morbid  obesity is          caused, or at least exacerbated, by voluntary  conduct, it cannot          constitute an impairment falling within the ambit of section 504.          But, this  asseveration rests on  a legally faulty premise.   The          Rehabilitation  Act  contains  no language  suggesting  that  its          protection is  linked to  how an  individual became  impaired, or          whether an individual  contributed to his or her  impairment.  On          the contrary, the Act indisputably applies to numerous conditions          that may be  caused or exacerbated by voluntary  conduct, such as          alcoholism,  AIDS,  diabetes,  cancer  resulting  from  cigarette          smoking,  heart disease resulting from excesses of various types,                                        ____________________               8Indeed,   Dr.   Blackburn,  appellant's   expert   witness,          testified that it is dangerous for a dieter to lose more than 20%          of her total body weight each year.  Applying this formula to Dr.          O'Brien's acknowledgment  that he  would have  rehired Cook  only          when  she reduced her weight  to 190 pounds,  the jury could have          concluded  that appellant  treated plaintiff  as  if her  obesity          would have disqualified her from working for over two years.                                          12          and  the like.   See,  e.g., Severino  v.  North Fort  Myers Fire                           ___   ____  ________      ______________________          Control  Dist., 935  F.2d  1179, 1182  (11th  Cir. 1991)  (AIDS);          ______________          Teahan v. Metro-North Commuter R. Co., 951 F.2d 511, 517 (2d Cir.          ______    ___________________________          1991) (drug abuse), cert. denied, 113 S. Ct. 54 (1992); Gallagher                              _____ ______                        _________          v.  Catto, 778  F.  Supp. 570,  577  (D.D.C. 1991)  (alcoholism),              _____          aff'd, 988 F.2d 1280  (D.C. Cir. 1993); see also 45  C.F.R.   84,          _____                                   ___ ____          App.   A,  Subpart   A(3)  at   377   (cancer;  heart   disease).          Consequently, voluntariness, like mutability, is relevant only in          determiningwhether a conditionhas a substantiallylimiting effect.                    Appellant's  premise fares  no better  as  a matter  of          fact.   The  instructions  (to which  appellant  did not  object)          specifically restricted  disabilities to  those conditions  "that          the  person  affected  is  powerless  to  control."9   Given  the          plethoric evidence introduced concerning the physiological  roots          of morbid obesity, the  jury certainly could have  concluded that          the metabolic dysfunction  and failed appetite-suppressing neural          signals  were   beyond  plaintiff's  control  and   rendered  her          effectively powerless to manage her weight.                                          C                                          C                    The next leg of our journey into the terra incognita of                                                         _____ _________          perceived  disabilities requires us  to explore whether  the jury          properly could have concluded that appellant regarded plaintiff's          condition as substantially limiting one or more of her major life                                        ____________________               9We take no view of the correctness of the instruction.   We          simply  note that,  to  the extent  that  it may  be  flawed, the          possible  error operates in appellant's favor and, is, therefore,          harmless.                                          13          activities.  See  45 C.F.R.   84.3(j)(2)(iv).   We bifurcate this                       ___          phase of our itinerary, examining the inquiry's two components in          reverse order.                    1.      Major  Life   Activities.      The  regulations                    1.      Major  Life   Activities.                            ________________________          implementing  section  504  define  "major  life  activities"  to          include walking, breathing, working, and other manual tasks.  See                                                                        ___          id.   84.3(j)(2)(ii).   In this case, Dr.  O'Brien testified that          ___          he refused to hire plaintiff  because he believed that her morbid          obesity  interfered  with  her   ability  to  undertake  physical          activities,  including walking,  lifting, bending,  stooping, and          kneeling,  to such  an  extent  that she  would  be incapable  of          working  as an  IA-MR.  On  this basis alone,  the jury plausibly          could  have   found  that  MHRH   viewed  plaintiff's   suspected          impairment as interfering with major life activities.  See, e.g.,                                                                 ___  ____          Perez v. Philadelphia  Housing Auth.,  677 F.  Supp. 357,  360-61          _____    ___________________________          (E.D.Pa.  1987) (finding that  abilities to walk,  sit, and stand          constitute major life activities), aff'd,  841 F.2d 1120 (3d Cir.                                             _____          1988) (table).                    2.  Substantiality of Limiting Effect.  The court below                    2.  Substantiality of Limiting Effect.                        _________________________________          instructed the jury that it must decide whether appellant treated          plaintiff as if  her condition "substantially limited" one of her          major life activities.  Appellant  did not object to the district          court's decision  to refrain from  further definition of  the key          phrase,  and, absent a  contemporaneous objection, a  trial court          ordinarily may charge in the  language of a statute or regulation          without further  elaboration.  See  United States v. De  La Cruz,                                         ___  _____________    ___________                                          14          902  F.2d 121, 123 (1st Cir. 1990).   Thus, we reject out of hand          appellant's insinuations that the lower court erred in neglecting          to afford a more precise definition sua sponte.10                                              ___ ______                    Proceeding to the merits, we  think that the degree  of          limitation  fell  squarely  to the  jury  and  that  the evidence          warrants  its  finding  that  appellant  regarded  plaintiff   as          substantially  impaired.   By  his  own  admission,  Dr.  O'Brien          believed  plaintiff's  limitations  foreclosed a  broad  range of          employment  options  in  the   health  care  industry,  including          positions  such  as  community living  aide,  nursing  home aide,          hospital aide,  and  home  health  care aide.    Detached  jurors          reasonably could have  found that this pessimistic  assessment of          plaintiff's  capabilities  demonstrated that  appellant  regarded          Cook's  condition as substantially limiting a major life activity            being able to work.                    Appellant  urges  that,   in  order  to  draw   such  a          conclusion, the jury would have  had to engage in rank conjecture          because plaintiff applied  for, and was  rejected from, only  one          job.   In effect, appellant's  argument on this point  reduces to          the  notion  that  meeting  the  statutory  test  requires, as  a                                        ____________________               10We note in passing that the term "substantially limits" is          not  defined in the  regulations.  Some  guidance in interpreting          this phrase can perhaps be  gleaned by looking to the regulations          implementing the  Americans with  Disabilities Act,  42 U.S.C.             12101  et seq.   (1993).    Those regulations  indicate that  the                 __ ____          question of whether an impairment is substantially limiting turns          on  "(1) the  nature  and  severity of  the  impairment, (2)  the          duration  or expected  duration of  the  impairment, and  (3) the          [actual or expected] permanent  or long term impact . .  . of, or          resulting from, the impairment."  29  C.F.R.   1630, App. at  403          (1992).                                          15          preliminary  matter,  that  an individual  unsuccessfully  seek a          myriad  of  jobs.   We  cannot  accept  that notion  for  several          reasons.   First,  such a  requirement is  contrary to  the plain          reading of the statute and  regulations.  Under the "regarded as"          prong  of section  504, a  plaintiff  can make  out a  cognizable          perceived  disability claim by demonstrating that she was treated          as if  she had  an impairment that  substantially limits  a major          life  activity.    See  45   C.F.R.     84.3(j)(2)(iv)(C).    The                             ___          Rehabilitation  Act  simply  does not  condition  such  claims on          either the quantum of a plaintiff's application efforts or on her          prospects  of finding other employment.   By way of illustration,          suit can be  brought against a warehouse operator  who refuses to          hire  all turquoise-eyed  applicants  solely because  he believes          that  people  with  such coloring  are  universally  incapable of          lifting  large  crates, notwithstanding  that  other warehousemen          might hire the applicants    or that the recalcitrant firm itself          might hire  them for  other, more sedentary  posts.   And placing          claims in this perspective makes good sense.  The  Rehabilitation          Act  seeks not only  to aid the disabled,  but also to "eliminate          discrimination on the basis of handicap."  45 C.F.R.   84.1.                    Then,    too,   conditioning    fulfillment   of    the          "substantially  limits" test  on  multiple  rejections  would  be          tantamount to  saying that the  law venerates the  performance of          obviously  futile acts     a  proposition  we  consistently  have          refused  to espouse.   See,  e.g., Northern  Heel Corp.  v. Compo                                 ___   ____  ____________________     _____          Indus., Inc.,  851 F.2d  456, 461 (1st  Cir. 1988)  (stating that          ____________                                          16          "[t]he law  should not  be construed idly  to require  parties to          perform  futile acts  or to  engage in  empty rituals);  see also                                                                   ___ ____          Gilbert  v.  City  of  Cambridge,  932 F.2d  51,  60  (1st  Cir.)          _______      ___________________          (discussing   "futility   exception"    to   permit   application          requirement), cert. denied, 112 S. Ct. 192 (1991).                        _____ ______                    We think it follows  that each case must  be determined          on  its own facts.   It also  follows that an  applicant need not          subject herself to a lengthy series of rejections at the hands of          an insensitive employer to establish that the employer views  her          limitations as  substantial.   If the  rationale proffered  by an          employer in  the context of  a single refusal to  hire adequately          evinces  that the  employer treats  a particular  condition  as a          disqualifier  for a wide range of employment opportunities, proof          of a  far-flung pattern of rejections may  not be necessary.  Put          in  slightly  more concrete  terms, denying  an applicant  even a          single job that requires no unique physical skills, due solely to          the  perception  that  the  applicant  suffers  from  a  physical          limitations  that  would keep  her  from qualifying  for  a broad          spectrum of jobs, can constitute  treating an applicant as if her          condition  substantially limited  a  major life  activity,  viz.,                                                                      ____          working.  This is such a case.                    The  precedents cited  by  appellant  are  not  to  the          contrary.   In each of them  the court concluded  that failure to          qualify  for a  job  possessing  unique  qualifications  did  not          constitute a  substantial limitation  of a  major life  activity.          See, e.g., Welsh v. City of  Tulsa, 977 F.2d 1415, 1417-18  (10th          ___  ____  _____    ______________                                          17          Cir. 1992) (upholding termination as  a fire fighter due to minor          sensory loss  in one hand); Daley  v. Koch, 892 F.2d  212, 214-16                                      _____     ____          (2d Cir. 1989) (sustaining rejection as police officer because of          personality  traits  of   poor  judgment  and  irresponsibility);          Tudyman  v. United  Airlines, 608  F. Supp.  739, 746  (C.D. Cal.          _______     ________________          1984)  (sustaining   termination  as  airline   steward  due   to          bodybuilder's bulk).  These  positions are a far cry from the IA-          MR post that Cook coveted.  We think there is a significant legal          distinction between rejection based  on a job-specific perception          that  the applicant is  unable to excel  at a narrow  trade and a          rejection based on more generalized perception that the applicant          is impaired  in such a way as would bar her from a large class of          jobs.  Cf. Welsh, 977 F.2d  at 1419 (noting that factors relevant                 ___ _____          to  determining whether  an impairment is  substantially limiting          include "(1) the  number and type of jobs from which the impaired          individual  is disqualified, (2)  the geographical area  to which          the  individual has reasonable  access, and (3)  the individual's          job expectations and training") (citation omitted).                    Here, the  jury  rationally could  have concluded  that          MHRH's   perception  of  what   it  thought  to   be  plaintiff's          impairment, as exhibited in its refusal to hire her for the IA-MR          position, foreclosed a sufficiently wide  range of jobs to  serve          as proof  of a substantial limitation.  Accordingly, the district          court appropriately refused to direct a verdict for the employer.                                          D                                          D                    The next  stop on our  odyssey requires us  to consider                                          18          whether there  was sufficient evidence  for the jury  to conclude          that plaintiff  was "otherwise qualified"  to work  as an  IA-MR.          Once again, an affirmative answer emerges.                    "An  otherwise qualified person  is one who  is able to          meet all of a program's requirements in spite of h[er] handicap."          Southeastern Community Coll. v. Davis, 442  U.S. 397, 406 (1979).          ____________________________    _____          Although an employer is not required to be unfailingly correct in          assessing  a person's  qualifications  for a  job,  see Bento  v.                                                              ___ _____          I.T.O. Corp., 599 F. Supp. 731, 744-45 (D.R.I. 1984), an employer          ____________          cannot  act  solely on  the  basis  of  subjective beliefs.    An          unfounded  assumption  that  an applicant  is  unqualified  for a          particular  job,  even  if  arrived  at in  good  faith,  is  not          sufficient to forestall liability under section 504.  See Pushkin                                                                ___ _______          v.  Regents of  Univ. of Colo.,  658 F.2d  1372 (10th  Cir. 1981)              __________________________          (rejecting  good  faith  as   a  defense  under      504  because          "[d]iscrimination on the  basis of handicap usually .  . . occurs          under  the guise  of  extending  a helping  hand  or a  mistaken,          restrictive  belief  as   to  the   limitations  of   handicapped          persons"); see also  Carter v. Casa Central, 849  F.2d 1048, 1056                     ___ ____  ______    ____________          (7th  Cir. 1988) (explaining that "[a]n employer's concerns about          the abilities of  a handicapped employee .  . . must be  based on          more than `reflective' reactions about a handicapped individual's          ability to  do the  job, no matter  how well-intentioned").   The          employer's belief must be objectively reasonable.  It cannot rest          on  stereotypes  and  broad generalizations.    After  all, "mere          possession of a handicap is not a permissible ground for assuming                                          19          an inability  to function in  a particular context."   Davis, 442                                                                 _____          U.S. at 405 (footnote omitted).                    Appellant's position, insofar as  we can understand it,          is that  plaintiff's  morbid obesity  presented  such a  risk  to          herself  and  the  Ladd  Center's  residents  that  she  was  not          otherwise   qualified,  or,  in  the  alternative,  that  it  was          reasonable  for appellant to  believe that she  was not otherwise          qualified.   This  protestation is  undone  by three  independent          considerations.                    First,  because  appellant's  evidence  on  this  point          serves,  at most,  to  generate  a fact  question  as to  whether          plaintiff  was  otherwise   qualified,  the  responsibility   for          resolving this dispute properly fell to  the jury.  See Arline v.                                                              ___ ______          School Bd. of  Nassau County, 480 U.S. 283, 287 (1987).  The jury          ____________________________          found  specially that appellant  did not reasonably  believe that          plaintiff lacked the requisite qualifications.  See supra note 3.                                                          ___ _____          Having carefully scrutinized the record, we see no principled way          in which we can scuttle this finding.                    Second,  we question whether  appellant has put forward          evidence sufficient to beget a  factual question.  At trial, MHRH          failed to  make  specific  inquiries  into  plaintiff's  physical          abilities  and  instead  relied on  generalizations  regarding an          obese person's capabilities.   This is the strict  inverse of the          "fact-specific and  individualized" inquiry, Arline, 480  U.S. at                                                       ______          287, that the  Rehabilitation Act requires.   Indeed, appellant's          "evidence" comprises  a  graphic illustration  of  an  employment                                          20          decision based on  stereotyping   exactly the  sort of employment          decision that the Rehabilitation Act seeks to banish.                    Third, one of appellant's  justifications for rejecting          plaintiff     its  concern over  high  absenteeism  and increased          workers' compensation  costs   is  itself a prohibited  basis for          denying employment.   Unless absenteeism  rises to  a level  such          that  the applicant  is  no  longer  "otherwise  qualified,"  the          Rehabilitation  Act requires  employers to  bear  absenteeism and          other  miscellaneous  burdens   involved  in  making   reasonable          accommodationsin ordertopermit theemploymentof disabledpersons.11                    We will not paint the lily.  Several pieces of evidence          loom large  on this  issue.    Plaintiff received  a satisfactory          report   following   the   physical  examination   conducted   by          appellant's own nurse; the  IA-MR position for which she  applied          did not demand any  elevated level of mobility,  lifting ability,          size,  or stature; plaintiff had satisfactorily performed all her          duties and responsibilities as an  IA-MR during her previous five                                        ____________________               11Implicit in  the Rehabilitation Act's requirement  that an          employer   who    receives   federal   funds    make   reasonable          accommodations to allow a disabled employee to perform her job is          the concept that  the employer must absorb some  costs in working                                                     ____          toward the goal of providing  meaningful employment opportunities          for disabled  persons.  See,  e.g., 45 C.F.R.    84.12 (requiring                                  ___   ____          accommodations  such  as  "job   restructuring,"  "modified  work          schedules,"  "acquisition   or  modification   of  equipment   or          devices,"  and  the  like).   Such  accommodations  are necessary          unless the employer can "demonstrate that the accommodation would          impose an  undue hardship," which  is determined, inter  alia, by                                                            _____  ____          the  "nature and  cost" of  the proposed  accommodation.   Id.,                                                                       ___          84.12(b)(2);  see, e.g., Nelson v.  Thornburgh, 567 F. Supp. 369,                        ___  ____  ______     __________          379  (E.D. Pa. 1983) (performing requisite balancing), aff'd, 732                                                                 _____          F.2d 146 (3rd Cir. 1984), cert. denied, 469 U.S. 1188 (1985).                                    _____ ______                                          21          years  of employment;12 and  MHRH acknowledged that  those duties          and responsibilities  have not changed.   From  this, and  other,          evidence,  we believe  that the  jury lawfully  could  have found          plaintiff, apart from  any impairment,  "otherwise qualified"  to          work as an IA-MR.                                          E                                          E                    Our  last port  of  call  requires  that  we  determine          whether the  evidence justified a  finding that MHRH  turned down          plaintiff's  request  for  employment due  solely  to  her morbid          obesity.  This final piece of the puzzle is straightforward.                    MHRH has not  offered a hint of  any non-weight-related          reason for  rejecting plaintiff's  application.   Rather, it  has          consistently  conceded that it  gave plaintiff the  cold shoulder          because Dr. O'Brien denied her  medical clearance.  The record is          pellucid that Dr. O'Brien's refusal had three foci, each of which          related  directly  to  plaintiff's obesity.13    On  this record,          there was  considerable room  for a jury  to find  that appellant          declined to hire Cook "due solely to" her perceived handicap.          IV.  CONCLUSION          IV.  CONCLUSION                                        ____________________               12To be sure,  plaintiff was not then morbidly  obese in the          literal sense.  Nevertheless, at  times during her prior tours of          duty she weighed almost as much as she weighed when she reapplied          in 1988.               13The point is  well illustrated in MHRH's  appellate brief,          which states that Dr. O'Brien "declined to give medical clearance          to hire  the plaintiff based solely  on her weight.   Dr. O'Brien          testified that there were three reasons for his decision:  First,          he believed that  she herself was  at risk based on  her obesity;          second, he believed that she  could put the retarded residents at          risk in emergency  situations; third, he was  concerned about the          overall cost of Worker's Compensation injuries."                                          22                    We need go no further.  In a society that all too often          confuses  "slim" with "beautiful"  or "good," morbid  obesity can          present  formidable barriers to employment.   Where, as here, the          barriers transgress  federal  law, those  who erect  and seek  to          preserve them  must suffer the  consequences.  In this  case, the          evidence adduced at trial amply supports the jury's determination          that MHRH  violated section 504  of the Rehabilitation Act.   And          because MHRH refused  to hire plaintiff due solely  to her morbid          obesity,  there is no cause to disturb either the damage award or          the equitable relief granted by the district court.          Affirmed.          Affirmed.          ________                                          23
