
USCA1 Opinion

	




          December 13, 1995 UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                               _______________________          No. 95-1313                                    ANDRE GRENIER,                                Plaintiff - Appellant,                                          v.                               CYANAMID PLASTICS, INC.,                                Defendant - Appellee.                               _______________________                                     ERRATA SHEET                                     ERRATA SHEET               The opinion of this Court issued on November 27, 1995, is          amended as follows:          1.   On page 12, change footnote 3 to read:                           change                Both parties refer us to this Guidance although it was               published after the decision by Cyro to reject Grenier's               application.  We note that a revised version of the Guidance               was issued October 10, 1995, after oral argument in this               case.  See Equal Employment Opportunity Comm'n, Enforcement                      ___                                      ___________               Guidance: Pre-Employment Disability-Related Questions and               _________________________________________________________               Medical Examinations (Oct. 10, 1995) (reprinted in EEOC               ____________________                               ____               Compl. Man. (CCH)   6093, at 5371).               ___________          2.   On page 13, lines 2-3, delete this parenthetical:                                      delete               (reprinted in EEOC Compl. Man. (CCH)   6903, at 5371, and in                             ________________               Americans with Disabilities Act Manual (BNA) No. 29)               ______________________________________          3.   On page 22, end of 6th line from bottom, add "1st Cir." to                                                        add          parenthetical, so that it reads:                (1st Cir. 1995)          4.   On page 24, 5th line from bottom, end of parenthetical,          change "at 355" to "at 347-48".          change          5.   On page 25, end of line 4, insert a footnote:                                          insert               On October 10, 1995, subsequent to oral argument, the EEOC               issued a new Guidance.  Although neither party has argued               that we ought to consider this newest guidance, we note that               the EEOC has revised its interpretation of the ADA and now               reaches the same conclusion.  Under a section headed "The               Pre-Offer Stage," the EEOC now explains:                    However, when an employer could reasonably believe that                    an applicant will need reasonable accommodation to                    perform the functions of the job, the employer may ask                    that applicant certain limited questions.                     Specifically, the employer may ask whether s/he needs                                                       __________________                    reasonable accommodation and what type of reasonable                    ________________________     _______________________                    accommodation would be needed to perform the functions                    _____________                    of the job.               Enforcement Guidance: Pre-Employment Disability-Related               _______________________________________________________               Questions and Medical Examinations (Oct. 10, 1995) (emphasis               __________________________________               in original).                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1313                                    ANDRE GRENIER,                                Plaintiff - Appellant,                                          v.                               CYANAMID PLASTICS, INC.,                                Defendant - Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                          Selya and Boudin, Circuit Judges,                                            ______________                             and Saris,* District Judge.                                         ______________                                _____________________               Roderick H. Potter, with whom Potter, Prescott, Jamieson &               __________________            ____________________________          Nelson was on brief for appellant.          ______               Jerrol A. Crouter, with whom Christopher G. Jernigan and               _________________            _______________________          Drummond Woodsum & MacMahon were on brief for appellee.          ___________________________                                 ____________________                                  November 27, 1995                                 ____________________                                        ____________________          *  Of the District of Massachusetts, sitting by designation.                    SARIS,  District  Judge.     Appellant  Andre   Grenier                    SARIS,  District  Judge.                            _______________          ("Grenier") was employed as an electrician for Cyanamid Plastics,          Inc., d/b/a Cyro Industries ("Cyro"), for several years before he          was  placed on  disability leave  due to  psychological problems.          After  his  employment  had  officially  terminated  by automatic          operation  of  the company  disability  policy,  but while  still          receiving disability benefits, Grenier  notified Cyro that he was          an   individual  with   a   disability   who  needed   reasonable          accommodation to return to  work and applied to be  re-hired into          his  previous  position.   Before making  him  a job  offer, Cyro          requested Grenier  to  provide certification  from his  physician          stating   that  he  was  prepared  to   return  to  work  without          restrictions   or   identifying  the   reasonable  accommodations          necessary for him to return  to work.  When Grenier failed  to do          so, his application was rejected.                      The difficult issue on  appeal is whether Cyro violated          the  Americans  with  Disabilities   Act  ("ADA"),  42  U.S.C.             12112(d),   which   prohibits   certain   preemployment   medical          examinations and  inquiries of a job applicant.   Concluding that          Cyro did not  violate this provision  of the ADA,  we affirm  the          district court's entry of summary judgment for Cyro.                              I.  STATEMENT OF THE CASE                              I.  STATEMENT OF THE CASE                                  _____________________                    A.  Facts                    A.  Facts                    Reviewing  the  factual   record  in  the  light   most          favorable to the nonmoving party, as we must at summary judgment,          see Mesnick  v. General Elec.  Co., 950 F.2d  816, 822 (1st  Cir.          ___ _______     __________________                                         -2-          1991),  cert. denied, 504 U.S. 985 (1992), we treat the following                  ____________          facts as undisputed.                      1.  The Disability Leave                      1.  The Disability Leave                    Andre Grenier worked as a shift electrician for Cyro at          its  plant in  Sanford,  Maine, from  1980  to 1989.    Grenier's          technical skill as an electrician was good.  In 1989, Grenier and          several other employees were  questioned about vandalism of plant          machinery  that  had  occurred   during  their  shift.    Grenier          responded  to   the  questioning  "in  a   highly  emotional  and          irrational  manner" and  failed to report  to his  next scheduled          shift.   He informed his supervisor, William Kennedy, that he was          afraid to be on a shift without an alibi, and that he was "losing          it."  Stating  that Grenier's behavior  was "very disruptive  and          potentially dangerous," Kennedy placed  Grenier on medical  leave          in November 1989.   This leave was explicitly "until  such a time          when you  can be cleared by  our medical department to  return to          work."   Kennedy  informed Grenier  in writing  that in  order to          return he would have to go through the standard reentry screening          process,  including   permitting  his  doctors   to  discuss  the          specifics of his case with the company doctor.                      In August 1990, Grenier mailed the first of a series of          letters to  Cyro, including a one-page  letter received September          27, 1990, and a six-page "statement" of April 11, 1991.  In these          letters,  Grenier criticized  the plant  manager Skip  Brogli and          complained that company actions in investigating vandalism at the          plant and placing him  on medical leave had caused  him to suffer                                         -3-          increased  anxiety.   He attacked several  policies of  the plant          that he claimed were  a "constant source of aggravation" to him.           He also  discussed in detail  various collateral issues,  such as          the criminal charges faced by the son of a Cyro manager, a sexual          harassment  investigation  of  a  fellow  employee,  and  various          transfers of Cyro managers.                    Grenier informed  Cyro in his letters  that his analyst          Dr. Stewart "describes me as  being Narcissistic," but noted that          "I prefer the  word 'proud.'"   He stated that "Dr.  Stewart also          describes me as having  'somewhat paranoid beliefs concerning the          malevolent intent of the (relatively  new) management.'"  He also          noted that "[a]fter a year and a half of being unable to work, my          analyst feels  that it would be  in my best interests  to quit my          job and  find another . .  . that I've become  obsessed with this          Skip guy  [manager Skip Brogli]."  He stated repeatedly, however,          that he refused to quit his job.                    "As a final  note," wrote Grenier in one  letter, dated          April 11, 1991, "I want to point that [sic], although Dr. Stewart          is indicating  that he feels  that I  am not totally  disabled, I          still  feel convinced that I am."  Grenier realized his statement          had "some  strong elements of  paranoia," but  claimed that  "the          paranoia is not  just my own .  . . it has  become fairly rampant          throughout the workforce."  And:                    The   continuing   incidents  of   vandalism,                    recently,   should  be  a   clear  signal  to                    Corporate headquarters  that Cyro Industries,                    in  Sanford, Me.  is still  more than  just a                    little bit sick.                                         -4-                    There is  still some  hope, however,  if only                    the right  steps are  taken.  And  unless the                    right steps are taken, somebody else is going                    to be hurt, maybe even killed.  Of that, I am                    sure.                    Grenier would not voluntarily terminate his employment.          He  remained on indefinite  disability leave until  May 12, 1991,          when his  employment at Cyro terminated automatically as a result          of  the  expiration  of his  continuous  service  credits.   Cyro          informed Grenier of his termination by letter May 15, 1991.                    Grenier received  disability benefits  from Cyro  for a          two-year period ending  December 31, 1992.   Under the  company's          plan, benefits were  payable for up to  two years if Grenier  was          under  the regular  care of  a licensed  physician and  unable to          perform the duties of  his specific job, but benefits  would have          continued beyond  this period  only if the  Disability Department          determined that his medical condition prevented him "from working          at any job for  which [he was] reasonably qualified  to perform."          On December 4, 1992, the Cyro disability department wrote Grenier          that based  on information  received from an  independent medical          examination of July 30, 1992, he  was not disabled to this extent          and, therefore, no benefits were payable after January 1, 1993.                      2.  Application for Re-Employment                      2.  Application for Re-Employment                    In  a letter dated December  18, 1992, and addressed to          Robert Lysaght,  the Personnel Operations Manager  at the Sanford          plant, Grenier asked to be considered an applicant for the job of          shift  electrician,  his  former  position.   Grenier  was  still          receiving  disability benefits  at this  time.   In  this letter,                                         -5-          which   was   under   the   heading   "request   for   employment          accommodation," Grenier stated:                    I qualify as an individual  with a disability                    as defined  by Federal and State Civil Rights                    laws.                    I   understand   that   CYRO  Industries   is                    conducting  interviews  for  the position  of                    shift mechanic in the  electrical department.                    The  purpose  of this  letter  is  to request                    accommodation to return to  work in the  same                    capacity   as  I   had  been   working  since                    September of 1980.                                        . . .                    I  believe  that  I  should be  afforded  the                    opportunity to  be accommodated to  return to                    my  job,  at  the  very least,  for  a  trial                    period, to prove that I am able to perform my                    job.                    I    believe     that,    under    reasonable                    circumstances, I should be able to perform in                    a safe and reliable manner.                    In response, Lysaght told Grenier in a January 5, 1993,          letter that  "CYRO is  not currently accepting  applications" but          that  the Maine unemployment  office would be  notified when Cyro          was soliciting applications.  In reality, a job notice was posted          on  January  4,  1993  --  subsequent  to  Grenier's  request for          consideration as an applicant, but prior to the date of Lysaght's          response.  Lysaght requested in his letter:                    Since  your termination of employment came as                    a  result  of  the expiration  of  Continuous                    Service Credits while you were on an extended                    medical leave, CYRO would  reasonably request                    that you provide us with certification from a                    physician that  you are prepared to return to                    work without restrictions or  identifying any                    accommodations that  are required for  you to                    return to  work at the Sanford  location.  Of                    course,    any   requests    for   employment                                         -6-                    accommodation will be considered  with regard                    to  the reasonableness  at  the time  of  the                    employment interview process.                    Therefore, in order  to return  to work  with                    CYRO  Industries you  need 1)  keep  in touch                    with the Maine Unemployment office in Sanford                    to  learn when  CYRO is  accepting employment                    applications;   2)  complete   an  employment                    application for a position  for which you are                    qualified;  and 3)  provide CYRO  with notice                    from your physician that you  are prepared to                    return  to  work   without  restrictions   or                    identifying  those reasonable  accommodations                    that may be necessary.                    By letter  of January  15, 1993, Grenier  forwarded his          therapist's certification  that he was disabled  and requested to          discuss accommodation with Cyro Vice President William Loman.  He          also  maintained that  his employment  had never  terminated, and          argued that the  May 15,  1991, letter that  informed him of  the          termination "simply implies that my employment is terminated."                    Cyro's New Jersey-based Personnel Director Thomas Ayres          responded  by letter of January 25th by informing Grenier that he          must follow the steps outlined in Lysaght's January 5th letter in          order to be considered for employment.                    Additional  correspondence  ensued.   Grenier  asserted          that he was "capable of performing the essential functions of the          job  with or without accommodation" but failed to describe how he          would perform and refused to provide medical documentation.  Cyro          continued to request the documentation.                    On February 22, 1993, Cyro mailed Grenier an employment          application,  which  Grenier promptly  returned.    By letter  of          March 15,  1993,   Cyro   rejected  Grenier's   application   for                                         -7-          employment, stating that, "[a]fter careful review of all relevant          information,   your  request  for   employment  consideration  is          denied."                      B.  Proceedings Below                    B.  Proceedings Below                    Grenier filed a two-count  complaint in the District of          Maine  on June 23, 1994, claiming  that Cyro violated the ADA and          the  Maine Human  Rights Act, 5  M.R.S.A.    4551 et  seq.1  Cyro                                                            ________          filed a motion  for summary  judgment on the  issue of  pre-offer          inquiries, and  Grenier opposed the  motion on the  same grounds.          The District Court  entered summary judgment  for Cyro.   Grenier          argues on appeal  that Cyro's pre-offer inquiry  violated the ADA          and that there are  genuine issues of material fact  with respect          to  his  claim  that  Cyro's  failure  to  hire  him  constituted          intentional discrimination.                                    II.  ANALYSIS                                    II.  ANALYSIS                                         ________                    A.  Standard of Review                    A.  Standard of Review                    This  court  reviews  the  district  court's  grant  of          summary  judgment de  novo.   The  standard  of review  has  been                            ________          clearly articulated by this court as follows:                    Since  appellate review of a grant of summary                    judgment  is plenary,  the court  of appeals,                    like  the  district  court,  "must  view  the                    entire record in the light most hospitable to                    the   party    opposing   summary   judgment,                    indulging all reasonable  inferences in  that                    party's favor."   An  appellate panel  is not                    restricted to the district  court's reasoning                    but  can  affirm a  summary  judgment  on any                    independently sufficient ground.  In the end,                                        ____________________          1  As the parties acknowledge that federal law controls          construction of the state claim, we do not discuss it separately.                                         -8-                    the entry  of summary judgment can  be upheld                    only if "the pleadings,  depositions, answers                    to interrogatories, and  admissions on  file,                    together  with the  affidavits, if  any, show                    that  there is  no  genuine issue  as to  any                    material fact  and that  the moving party  is                    entitled to a judgment as a matter of law.          Mesnick v. General  Elec. Co., 950 F.2d 816, 822  (1st Cir. 1991)          _______    __________________          (citations omitted), cert. denied, 504 U.S. 985 (1992).                               ____________                    B.  Statutory Framework                    B.  Statutory Framework                    A  close  analysis  of  the  statutory  and  regulatory          framework is  essential to  determine the  employer's obligations          under the  ADA when  dealing with the  known disability of  a job          applicant.                      1.  The Statute                        1.  The Statute                      The ADA, 42  U.S.C.    12101 et seq.,  was enacted  "to                                                 _______          provide  a  clear  and  comprehensive national  mandate  for  the          elimination   of   discrimination   against    individuals   with          disabilities."   42  U.S.C.     12101(b).    In  the  context  of          employment, the ADA provides:                    (a)  General rule.   No covered  entity shall                         General rule.                    discriminate  against a  qualified individual                    with a disability  because of the  disability                    of   such  individual   in   regard  to   job                    application    procedures,     the    hiring,                    advancement,   or  discharge   of  employees,                    employee  compensation,   job  training,  and                    other  terms,  conditions, and  privileges of                    employment.          42 U.S.C.   12112(a).                    With regard to medical examinations  and inquiries, the          ADA  sets  up  separate  rules for  pre-offer  job  applications,            12112(d)(2);     post-offer    pre-employment     examinations,                                         -9-            12112(d)(3); and inquiries of current employees,   12112(d)(4).          Section 12112(d) provides as follows:                    (d)  Medical examinations and inquiries.                       (1)  In   general.       The   prohibition    against                           discrimination  as  referred to  in [  12112(a)]                           shall    include   medical    examinations   and                           inquiries.                      (2)  Preemployment.                           (A)  Prohibited examination or inquiry.   Except                                as  provided in  paragraph  (3), a  covered                                entity   shall   not   conduct  a   medical                                examination  or make  inquiries  of  a  job                                applicant as  to whether such  applicant is                                an  individual with  a disability or  as to                                the nature or severity of such disability.                           (B)  Acceptable  inquiry.  A  covered entity may                                make   preemployment  inquiries   into  the                                ability  of an  applicant  to perform  job-                                related functions.          Pursuant to  paragraph (3),  an employer  may "require  a medical          examination after  an offer of employment has  been made to a job          applicant and prior to the commencement of employment duties, and          may  condition  an offer  of employment  on  the results  of such          examination" only  in certain circumstances.2   Once an applicant                                        ____________________          2  This section provides in relevant part:                      (3)  Employment  entrance  examination.    A  covered                           entity may  require a medical  examination after                           an  offer of employment  has been made  to a job                           applicant  and  prior  to  the  commencement  of                           employment  duties of  such  applicant, and  may                           condition an offer of  employment on the results                           of such examination,                            if --                           (A)  all  entering  employees  are subjected  to                                such    an   examination    regardless   of                                disability;                                         -10-          becomes an  employee, an employer is prohibited  from requiring a          medical  examination or  making inquiries  of an  employee as  to          whether he  is  an "individual  with a  disability or  as to  the          nature  or severity of the  disability unless such examination or          inquiry is shown to be  job-related and consistent with  business          necessity."    12112(d)(4).  An employer may make "inquiries into          the  ability of an employee to perform job-related functions."             12112(d)(4)(B).                      2.  The Regulations                      2.  The Regulations                    The  regulations adopted  under  the ADA  by the  Equal          Employment  Opportunity  Commission  ("EEOC")  provide   that  an          employer may  make "pre-employment inquiries into  the ability of          an applicant to  perform job-related functions, and/or may ask an          applicant to  describe  or to  demonstrate how,  with or  without          reasonable accommodation,  the applicant will be  able to perform          job-related  functions."    29 C.F.R.     1630.14(a).   The  EEOC          crafted    1630.14(a)  in response  to  comments on  the proposed          regulation from employers asking "whether an employer may ask how          an individual  will perform a job function  when the individual's          known disability appears to interfere with or prevent performance          of job-related functions."  56 Fed. Reg. 35725, 35732 (1991).                    The EEOC published  as an appendix to the regulations a          section-by-section  "Interpretive  Guidance  on Title  I  of  the                                        ____________________                           (B)  information obtained [is kept confidential,                                with limited exceptions]; and                           (C)  the  results of  such examination  are used                                only in accordance with this subchapter.                                         -11-          Americans with Disabilities  Act."  29 C.F.R. Pt.  1630, App.  We          have looked to this source in interpreting the ADA.  See Carparts                                                               ___ ________          Distrib. Ctr., Inc. v. Automobile Wholesaler's Ass'n, 37 F.3d 12,          ___________________    _____________________________          16  (1st Cir. 1994).   Such administrative interpretations of the          Act by  the  enforcing agency,  "while not  controlling upon  the          courts  by reason  of their  authority, do  constitute a  body of          experience and  informed judgment  to which courts  and litigants          may properly resort  for guidance."   Meritor Sav.  Bank, FSB  v.                                                _______________________          Vinson, 477 U.S. 57, 65 (1986).          ______                    The  EEOC  explains  the  regulation     1630.14(a)  as          follows:                    An  employer may  also  ask an  applicant  to                    describe  or  to  demonstrate  how,  with  or                    without    reasonable    accommodation,   the                    applicant will be able to perform job-related                    functions.  Such a request may be made of all                    applicants   in   the   same   job   category                    regardless of disability.  Such a request may                    also  be made  of  an applicant  whose  known                    disability  may interfere with or prevent the                    performance   of   a  job-related   function,                    whether  or not the  employer routinely makes                    such a  request of all applicants  in the job                    category.   For example,  an employer may ask                    an individual with one  leg who applies for a                    position  as a home washing machine repairman                    to  demonstrate or  to explain  how, with  or                    without  accommodation, he  would be  able to                    transport  himself and  his  tools  down  the                    basement stairs.   However, the  employer may                    not inquire  as to the nature  or severity of                    the  disability.  Therefore, for example, the                    employer cannot  ask how the  individual lost                    the  leg or whether  the loss  of the  leg is                    indicative of an underlying impairment.                      3.  The Guidance                      3.  The Guidance                                         -12-                    An  EEOC Enforcement  Guidance,  dated  May 19,  1994,3          further aids our interpretation of the rules concerning pre-offer          inquiries  of  applicants with  known  disabilities.   See  Equal                                                                 ___          Employment    Opportunity     Comm'n,    Enforcement    Guidance:                                                   ________________________          Preemployment    Disability-Related    Inquiries   and    Medical          _________________________________________________________________          Examinations Under  the Americans  with Disabilities Act  of 1990          _________________________________________________________________          (EEOC Notice 915.002) (May 19, 1994) [hereinafter Guidance].  The                                                            ________          Guidance  was designed  "for interim  use by  EEOC investigators,          pending coordination  with other  federal agencies."   Id., Exec.                                                                 ___          Summ.  It is not binding  law, but as a detailed analysis of  the          relevant  ADA  provisions,  it  aids our  interpretation  of  the          statute.                    In  a  section   entitled  "When  the   Employer  Could          Reasonably  Believe  that  Known Disability  Will  Interfere With          Performance of Job Related Functions," the Guidance provides:                      When  an  employer  could reasonably  believe                    that  an  applicant's  known disability  will                    interfere  with  the  performance  of  a job-                    related function, the  employer may ask  that                    particular    applicant   to    describe   or                    demonstrate  how  s/he   would  perform   the                    function,   with    or   without   reasonable                    accommodation.    Such inquiries  or requests                    are not prohibited pre-offer inquiries.                                        ____________________          3   Both  parties  refer us  to  this  Guidance although  it  was          published  after  the  decision   by  Cyro  to  reject  Grenier's          application.   We note that a revised version of the Guidance was          issued  October 10, 1995, after oral argument  in this case.  See                                                                        ___          Equal  Employment Opportunity Comm'n,  Enforcement Guidance: Pre-                                                 __________________________          Employment Disability-Related Questions and  Medical Examinations          _________________________________________________________________          (Oct. 10,  1995) (reprinted in EEOC Compl.  Man. (CCH)   6093, at                                         _________________          5371).                                         -13-                    Example 5:   R may ask an  applicant with one                    _________                    leg  who applies  for  a job  as a  telephone                    linesperson  to  describe or  demonstrate how                    she  would  perform the  duties  of the  job,                    because R may  reasonably believe that having                    one leg  interferes with the ability to climb                    telephone poles.                    In some  cases, an applicant may  not have an                    obvious   disability,  but   may  voluntarily                    disclose  that s/he  has a  hidden disability                    that  would  reasonably  appear to  interfere                    with performance of  a job-related  function.                    In  such  cases,  the  employer  may ask  the                    applicant   to    describe   or   demonstrate                    performance,   with  or   without  reasonable                    accommodation.    Such inquiries  or requests                    are not prohibited pre-offer inquiries.                    Example  6:   An  applicant  for  the job  of                    __________                    repairing underground sewer lines voluntarily                    discloses that she has severe claustrophobia.                    R  may  reasonably   determine  that   severe                    claustrophobia   would   interfere  with   an                    employee's   ability   to  work   within  the                    confined space of  an underground  sewer.   R                    may  therefore ask the  applicant to describe                    or demonstrate how she would perform the job,                    with or without reasonable accommodation.          Guidance   IV.B.5.b.          ________                    The EEOC explains  that allowing an employer to  ask an          applicant with a known disability  to describe or demonstrate how          he  would perform a job-related  function "is in  the interest of          both applicants and employers."  Id. at n.23.                                           ___                    Employers  are entitled  to  know whether  an                    applicant  with   an  apparently  interfering                    disability can perform job-related functions,                    with or without reasonable accommodation.  It                    is in the interest  of an applicant with such                    a  disability  to  describe   or  demonstrate                    performance in  order to dispel  notions that                    s/he is unable to  perform the job because of                    the disability.          Id.          ___                                         -14-                    In a  section entitled  "Inquiries Concerning  Need for          Accommodation and  Requests for  Documentation if  Applicant Asks          for Accommodation,"  the Guidance permits an  employer during the          hiring process to require an applicant "to inform the employer of          any reasonable  accommodation needed"  to take an  "interview" or          perform a "job demonstration."  Id.   IV.B.6.a.   With respect to                                          ___          accommodations for the job, as opposed  to accommodations for the          hiring process, the Guidance explains:                    An employer may ask an applicant whether s/he                    can  perform specified  job-related functions                    with  or  without  reasonable  accommodation,                    because  these  inquiries elicit  information                    about  an applicant's ability  to perform job                                          _______                    functions,    not   information    about   an                    applicant's disability.  An employer also may                    ask an applicant to describe  or demonstrate,                    at   the  pre-offer  stage,  how  s/he  would                    perform   job-related   functions,  with   or                    without  reasonable   accommodation,  because                    these inquiries elicit  information about  an                    applicant's ability, not information about an                                _______                    applicant's disability. . . .                    However, at the  pre-offer stage, an employer                    may   not   generally  inquire   whether  the                    applicant needs  reasonable accommodation for                    the job.   For  example, an employer  may not                    make  inquiries  such  as,  "Would  you  need                    reasonable  accommodation in  this job?"   or                    "Would you need  reasonable accommodation  to                    perform  this  specific   function?"     Such                    inquiries  are  likely to  elicit information                    about the existence  of a disability because,                    generally,   only   an   individual  with   a                    disability  would  require an  accommodation.                    Therefore, these inquiries are  prohibited at                    the pre-offer stage.                      If  an  applicant  has voluntarily  disclosed                    that   s/he   would    need   a    reasonable                    accommodation   to   perform  the   job,  the                    employer still may not  make inquiries at the                    pre-offer  stage about  the type  of required                                                ____                    reasonable  accommodation  (except where  the                                         -15-                    applicant     has     requested    reasonable                    accommodation as part of a required pre-offer                    job demonstration, as described above).            Id.   IV.B.6.a (emphasis in original).          ___                    When an applicant requests reasonable accommodation, an          employer  may   request   "documentation  from   an   appropriate          professional (e.g.,  a doctor, rehabilitation  counsellor, etc.),          stating  that s/he  has  a  disability."   Id.    IV.B.6.b.    An                                                     ___          employer  may also  require  documentation as  to an  applicant's          functional  limitations "for  which  reasonable accommodation  is          requested (and which flow from the  disability.)"  Id.  The  EEOC                                                             ___          reasoned   that  such  requests   are  not  prohibited  pre-offer          inquiries because:                    Requesting  such documentation  is consistent                    with  the  ADA's  legislative history.    For                    example,  Congress  specifically  anticipated                    that  when  an applicant  requests reasonable                    accommodation for the application process (or                    when   an    employee   requests   reasonable                    accommodation  for  the  job),  the  employer                                                    _____________                    should engage in  an interactive process with                    _____________________________________________                    the  individual  to  determine  an  effective                    _____________________________________________                    reasonable accommodation.                    ________________________          Id. (emphasis added).   As  an example, the  EEOC stated that  an          ___          employer  may at  the  pre-offer stage  require  an applicant  to          obtain documentation from a  professional stating she cannot lift          a certain amount and needs reasonable accommodation.  Id.                                                                 ___                    C.  The Pre-Offer Inquiry                    C.  The Pre-Offer Inquiry                    With this statutory  and regulatory framework  in mind,          we turn to Grenier's  claim that Cyro's requirement of  a medical          certification violates ADA   12112(d).                      1.  Getting Along                      1.  Getting Along                                         -16-                    First, Grenier  argues that  Cyro's letter  requiring a          medical  certification  constituted   an  impermissible   inquiry          because  the request was not  for information about  how he would          perform  the job-related functions.   Rather than ask "whether he          possessed  the requisite  skills  to perform  the electrical  and          electronic  tasks called  for  in the  job description,"  Grenier          complains, "Cyro assumed that his ability  to perform job related          functions was  called  into question  by  his history  of  mental          illness."  Grenier argues that Cyro already had knowledge that he          was able to do the essential job-related functions because he had          worked there for nine years and was "technically qualified."                    Grenier   incorrectly   assumes   that  the   essential          functions of the  job of shift electrician require only technical          ability  and experience as  an electrician.   "The term essential          functions  means the  fundamental  job duties  of the  employment          position  the individual with a disability holds or desires."  29          C.F.R.   1630.2(n)(1).   Technical skills and  experience are not          the only essential  requirements of  a job.   See Pesterfield  v.                                                        ___ ___________          Tennessee Valley Auth., 941 F.2d 437, 441-42 (6th Cir. 1991) ("at          ______________________          least the ability  to get along with  supervisors and co-workers"          was essential function of job as tool room attendant); Mancini v.                                                                 _______          General  Electric  Co.,  820 F.  Supp.  141,  147  (D. Vt.  1993)          ______________________          ("ability to  follow  the orders  of  superiors is  an  essential          function of any position");  Pickard v. Widnall, 1994 WL  851282,                                       _______    _______          *9  (S.D.  Ohio,  Dec. 15,  1994) (No.  C-3-94-40)  ("mental  and          emotional  stability" was  essential  job function  for  military                                         -17-          position); Johnston v. Morrison, 849 F. Supp. 777, 778 (N.D. Ala.                     ________    ________          1994)  (waitress who was unable to handle pressures of working on          crowded nights or memorizing frequent menu changes was  unable to          perform essential functions of job); cf. Bento v. I.T.O. Corp. of                                               __  _____    _______________          Rhode Island, 599 F.  Supp. 731,  742-43 (D.R.I.  1984) (although          ____________          there is "no question that plaintiff . . . is qualified to do the          job, at  least in the sense of knowing how  to perform it," he is          not necessarily  "otherwise qualified" within the  meaning of the          Rehabilitation Act).                    More specifically, an  employer may reasonably  believe          that an employee known to have a paranoia about the plant manager          is not  able to  perform his  job.  Cf.  Voytek v.  University of                                              ___  ______     _____________          California,  1994 WL 478805, *15, 6 A.D.D. 1137, 1161 (N.D. Cal.,          __________          Aug.  25, 1994) (No.  C-9203465 EFL)  (holding that  employee was          legally denied re-employment after  period of disability where he          "could not continue to perform all of the tasks assigned to him,"          due in part to "the ongoing conflict with his supervisor").                    The ADA does  not require an employer  to wear blinders          to  a known  disability at  the pre-offer  stage, but  permits an          "interactive   process"  beneficial  to  both  the  employer  and          applicant.  The EEOC regulations recognize this by providing that          an  employer  can ask  an applicant  with  a known  disability to          describe  or   demonstrate  how   "with  or   without  reasonable          accommodation" the  applicant will  be able  to do  the job.   29          C.F.R.   1630.14(a).  Here, Cyro knew that the applicant had just          recently been  unable to perform  his specific job  at Cyro as  a                                         -18-          result  of a mental disability  for which he  was still receiving          benefits from Cyro and undergoing psychiatric treatment.  Indeed,          Grenier  himself  had  claimed   he  was  totally  disabled  from          performing  any work,  not just  his specific job  at Cyro.   Cf.                                                                        ___          August v. Offices Unlimited, Inc., 981 F.2d 576, 581-82 (1st Cir.          ______    _______________________          1982)  (man who  had  asserted on  insurance  forms that  he  was          "totally disabled"  and had presented no  contrary evidence could          not  be   found  to  be  "qualified   handicapped  person"  under          Massachusetts  anti-discrimination  statute,  Mass. Gen.  L.  ch.          151B); Reigel v. Kaiser Found. Health Plan, 859 F. Supp. 963, 969                 ______    _________________________          (E.D.N.C. 1994)  (woman who  certified to her  disability insurer          that  she could not perform  her job was  estopped from asserting          that  during the  same  time period  she  had been  qualified  to          perform for purposes of the ADA).  We hold that this employer did          not  violate the  prohibition  in    12112(d)  by inquiring  into          Grenier's ability to function effectively in the workplace and to          get  along with his  co-workers and supervisor,  rather than just          his technical qualifications as an electrician.4                      2.  The Medical Certification                        2.  The Medical Certification                                          ____________________          4  We note that the inquiry made by Cyro would not necessarily be          permissible under  different  circumstances, such  as  where  the          employer  was  less familiar  with the  nature  or extent  of the          applicant's disability, or  with the effect of  the disability on          job performance.    As the  EEOC  recognized when  preparing  the          Guidance,  "there  are sometimes  subtle  distinctions between  a          permissible  and a  prohibited  pre-offer inquiry."   Guidance                                                                   ________          IV.B.6.b.  See generally  Paul  F. Mickey, Jr. & Maryelena Pardo,                     ___ _________          Dealing with Mental Disabilities  Under the ADA, 9 Lab.  Law. 531          _______________________________________________          (1993);  Janet  L. Hamilton,  New  Protections  for Persons  with                                        ___________________________________          Mental  Illness  in  the   Workplace  under  the  Americans  with          _________________________________________________________________          Disabilities Act of 1990, 40 Clev. St. L. Rev. 63, 92 (1992).          ________________________                                         -19-                    Next Grenier argues  that Cyro's pre-offer  requirement          of a medical certification is  an illegal pre-offer inquiry under          the ADA because the regulations  "do not by their terms permit  a          request  to  someone other  than  the applicant  at  the preoffer          stage."                    As a  preliminary matter, we address  whether a request          for medical  certification constitutes a "medical examination" or          whether  it  is  instead an  "inquiry."    The  ADA prohibits  an          employer from conducting any pre-offer "medical examination" of a          job  applicant.      12112(d)(2).   This  prohibition  applies to          psychological examinations.   See Guidance at n.  47 (citing H.R.                                        ___ ________          Rep. No. 485 (Pt. 3), 101st Cong., 2d Sess. 46 (1990),  reprinted                                                                  _________          in  1990 U.S.C.C.A.N. vol. 4, Legis. Hist.,  445, 469).  The EEOC          __          defined "medical examination" as follows:                    Medical examinations are procedures  or tests                    that  seek  information about  the existence,                    nature,  or  severity   of  an   individual's                    physical or  mental impairment, or  that seek                    information    regarding   an    individual's                    physical or psychological health.          Guidance   V.A.  We conclude that a certification from a treating          ________          psychiatrist that does not necessitate new tests or procedures is          best  analyzed  as  an  "inquiry"  rather   than  as  a  "medical          examination."                    Also,  contrary   to  Grenier's  assertion,   the  EEOC          interprets the ADA to allow certain inquiries of third parties at          the pre-offer stage.  With respect to "inquiries to third parties          regarding  an   applicant's  medical  condition,"   the  Guidance          provides  that "[a]t the pre-offer stage", an employer can "ask a                                         -20-          third  party (e.g., a reference)  anything that it  could ask the                        ____          applicant  directly."   Guidance    IV.B.15.   Further, the  EEOC                                  ________          finds that requests for  documentation from health care providers          to  confirm the existence of  a disability are permissible where,          as  here,  requests  for  reasonable accommodation  are  made  in          connection  with the  hiring  process or  job.   See  Guidance                                                              ___  ________          IV.B.6.b.    We conclude  that an  employer  may request  that an          applicant provide  medical certification from doctors  of ability          to perform so long as the inquiry does not otherwise run afoul of            12112(d)(2)(A).                    The  primary thrust  of Grenier's  appeal is  that this          inquiry -- the requirement of medical certification of ability to          perform from  a former  disabled employee  applying to return  to          work  with the same employer -- violates   12112(d)(2)(A) in that          it  constitutes an inquiry of a "job applicant as to whether such          applicant is an individual with a  disability or as to the nature          or severity of such disability."                    The Eighth Circuit recently addressed a similar factual          situation in Brumley v. Pena, 62 F.3d 277 (8th Cir. 1995), a case                       _______    ____          decided   under   the   Rehabilitation   Act,    and   applicable          regulations.5   Brumley was  a mentally disabled  former employee                                        ____________________          5    The  ADA  extended  to  the  private  sector  the  essential          substantive  provisions of  the  Rehabilitation Act  of 1973,  29          U.S.C.    791-794.   See Chai  R. Feldblum, Medical  Examinations                               ___                    _____________________          and Inquiries under the  Americans with Disabilities Act: A  View          _________________________________________________________________          from the Inside, 64 Temple L.  Rev. 521, 521-22 (1991).  Congress          _______________          intended that  Rehabilitation Act precedent be  considered by the          courts in interpreting  the ADA.   See 42 U.S.C.    12201(a); see                                             ___                        ___          also Ennis  v. National  Ass'n of Business  & Educational  Radio,          ____ _____     __________________________________________________          Inc., 53 F.3d 55, 57 (4th Cir. 1995) ("To the extent possible, we          ____                                         -21-          of  the  Federal  Aviation   Administration  ("FAA")  who  sought          priority  consideration  for  restoration  to  federal employment          pursuant  to 5  U.S.C.    8151,  which  predicated the  level  of          priority for  re-employment on  the extent  of recovery from  the          disability.    He  challenged  the  agency's  demand for  a  pre-          employment examination by a  psychiatrist to determine whether he          was fully or  only partially recovered  from his severe  reactive          depression.  Id.  at 279.  In questioning the  application of the                       ___          regulations, the  court noted  that "[t]he  dilemma here  is that          Brumley is not an outside job applicant seeking employment at the          FAA for the first  time."  Id.  "Rather, he is a recipient of . .                                     ___          .  disability  payments  who  is  seeking  to  exercise  his  re-          employment rights with  the FAA pursuant  to [5 U.S.C.    8151]."          Id.  The court concluded that the employer  "retains the right to          ___          require  that  [the  former   employee's]  medical  condition  be          verified in order to determine his re-employment rights."  Id. at                                                                     ___          279.                      As  in  Brumley,  this  Court  faces  the  quandary  of                            _______          determining the appropriate parameters  of a pre-offer inquiry of          a former employee who is the recipient of disability benefits and          now seeks re-employment.  Cyro argues that an employer should not          be forced to  have "amnesia"  with respect to  a former  employee          where  it  is  well aware  of  the nature  and  severity  of that                                        ____________________          adjudicate  ADA  claims in  a  manner  consistent with  decisions          interpreting the Rehabilitation Act.").  Specifically,  the ADA's          statutory provisions  on medical examinations and  inquiries were          drawn from  Rehabilitation  Act regulations.    See 29  C.F.R.                                                             ___          1614.203(e) (formerly   1614.706); 45 C.F.R.   84.14.                                         -22-          employee's disability because it  had previously received medical          information  that  formed  the  basis for  its  determination  of          eligibility for  disability benefits.  Rather,  it urges, Grenier          should  be  treated  as   an  existing  employee  returning  from          disability leave, in  which case  the employer would  be able  to          demand medical certification of  ability to return to work.   See                                                                        ___          42 U.S.C.   12112(d)(4)  (ADA provisions for medical examinations          of  existing employees);  Hogan v. Bangor and Aroostook R.R. Co.,                                    _____    _____________________________          61  F.3d 1034,  1036 (1st  Cir. 1995)  (employee was  entitled to          reinstatement after  suffering collapsed lung as  soon as medical          evidence indicated he  was fit to return);  Pesterfield, 941 F.2d                                                      ___________          at 438  (employee who was hospitalized  for psychiatric treatment          was required to  provide medical certification  as to ability  to          return  to work);  Derbis v.  United States  Shoe Corp.,  1994 WL                             ______     _________________________          631155, *5, 6 A.D.D. 1071, 1075,  3 A.D. Cas. 1029, 1030, 65 Fair          Empl. Prac. Cas. (BNA) 1328 (D.  Md., Sept. 7, 1994) (No. MJG-93-          130)  (where plaintiff  on disability  leave presented  a medical          report which indicated the employee could return to work but only          with   some  accommodation,  employer  could  require  sufficient          information  to  allow it  to  consider  any possible  reasonable          accommodation),   aff'd  in   part  and   remanded   for  further                            _______________________________________________          proceedings, 67 F.3d 294 (4th Cir. 1995)  (table).  We agree that          ___________          this  case is  similar  to that  of  an employee  returning  from          disability  leave.  It appears that neither Congress nor the EEOC          took  into  account  the  case  of   a  returning  employee  when          formulating the restrictions on pre-offer inquiries.  Here, as in                                         -23-          the case of the returning employee, the employer must be able  to          assess the extent  of the applicant's recovery  from inability to          perform.  Further, if accommodations are necessary to  enable job          performance,  the  employer, who  is  already  familiar with  the          disability, must learn of those  accommodations in order to  have          any realistic chance of assessing ability to perform.                    Grenier  contends that  the ADA  as interpreted  in the          Guidance  prohibits an  employer's requirement  that a  physician          identify the  type of  reasonable accommodations required  for an                        _______          employee  to  return to  work.    The Guidance  states:   "If  an          applicant  has  voluntarily  disclosed  that s/he  would  need  a          reasonable accommodation  to perform the job,  the employer still          may  not make inquiries at the pre-offer  stage about the type of                                                                    ____          required reasonable accommodation."  Guidance   IV.B.6.a.                                                ________                    We conclude  that the ADA does not preclude an employer          from  asking an  applicant with  a known  disability who  seeks a                                             _____          reasonable accommodation to specify  the type of accommodation he          seeks.  As the District Court pointed out, the Guidance prohibits          pre-offer inquiry into  the type of  accommodation because it  is          "likely  to elicit information about the nature and severity of a          disability."   Guidance   IV.B.6.a.   The central  purpose of the                         ________          prohibition on pre-offer inquiries generally is to ensure that an          applicant's  hidden disability  remains  hidden.   See H.R.  Rep.                                                             ___          No. 485 (Pt. 2), 101st  Cong., 2d Sess., at 73, reprinted in 1990                                                          ____________          U.S.C.C.A.N.  vol. 4,  Legis. Hist.,  303, 355  ("The legislation          prohibits  any  identification  of  a disability  by  inquiry  or                                         -24-          examination  at the  pre-offer stage.");  Guidance    IV.A ("This                                                    ________          prohibition  is to  ensure  that an  applicant's possible  hidden          disability  (including  prior history  of  a  disability) is  not          considered  by  the employer  prior  to  the  assessment  of  the          applicant's non-medical qualifications.").                    With  respect  to   known  disabilities,  however,  the          emphasis  is  on  encouraging  the  employer  to  "engage  in  an          interactive process with the individual to determine an effective          reasonable accommodation."  Guidance   IV.B.6.b (citing H.R. Rep.                                      ________          No. 485 (Pt.  2), supra, at 65-66, U.S.C.C.A.N. at 347-48).  That                            _____          is why the EEOC allows an employer to ask an applicant with known          claustrophobia to  describe pre-offer  how she would  perform the          job, with or without reasonable accommodation.  There could be no          meaningful  interaction if  this  court would  accept the  strict          interpretation Grenier presses on  us that an employer who  knows          the precise nature of a disability that interferes with essential          job   functions   cannot,  on   being  informed   pre-offer  that          accommodation  will  be necessary,  follow  up  with the  logical          question "what kind?"6                                        ____________________          6    On October 10, 1995, subsequent to oral argument, the EEOC               issued a new Guidance.  Although neither party has argued               that we ought to consider this newest guidance, we note that               the EEOC has revised its interpretation of the ADA and now               reaches the same conclusion.  Under a section headed "The               Pre-Offer Stage," the EEOC now explains:                    However, when an employer could reasonably believe that                    an applicant will need reasonable accommodation to                    perform the functions of the job, the employer may ask                    that applicant certain limited questions.                     Specifically, the employer may ask whether s/he needs                                                       __________________                    reasonable accommodation and what type of reasonable                    ________________________     _______________________                                         -25-                    In sum,  an employer does not violate    12112(d)(2) of          the  ADA by  requiring  a former  employee  with a  recent  known          disability   applying  for   re-employment  to   provide  medical          certification as to  ability to  return to work  with or  without          reasonable  accommodation, and as  to the type  of any reasonable          accommodation  necessary, as  long  as  it  is  relevant  to  the          assessment of ability to perform essential job functions.                    D.  Intentional Discrimination in Denial of Application                    D.  Intentional Discrimination in Denial of Application                    Finally,  Grenier argues  on appeal  that there  remain          genuine  issues of  material fact  as to  his argument  that Cyro          intentionally discriminated against him in violation of 42 U.S.C.            12112(a), as opposed to   12112(d).  Grenier argues that,  even          if Cyro did  not violate the  specific restrictions on  pre-offer          inquiries,  there is a  genuine dispute of  material fact whether          Cyro  illegally  discriminated  against Grenier  based  upon  his          disability when it denied his application for employment.                      By failing to  make this argument in his  opposition to          summary judgment, Grenier has failed to preserve this claim.  "It          is by  now axiomatic  that an  issue not  presented to  the trial          court cannot  be raised for the first  time on appeal."  Johnston                                                                   ________          v. Holiday Inns,  Inc., 595 F.2d 890, 894 (1st  Cir. 1979).  This             ___________________                                        ____________________                    accommodation would be needed to perform the functions                    _____________                    of the job.               Enforcement Guidance: Pre-Employment Disability-Related               _______________________________________________________               Questions and Medical Examinations (Oct. 10, 1995) (emphasis               __________________________________               in original).                                         -26-          rule  may  be relaxed  only "in  horrendous  cases where  a gross          miscarriage  of  justice would  occur."     Id.  (quoting  Newark                                                      ___            ______          Morning Ledger Co. v. United  States, 539 F.2d 929, 932 (3d  Cir.          __________________    ______________          1976)).   For  a new argument  to be  considered, it  must be "so          compelling  as virtually  to  insure appellant's  success."   Id.                                                                        ___          (quoting Dobb v. Baker, 505 F.2d 1041, 1044 (1st Cir. 1974)).                   ____    _____                    Even an issue  raised in the  complaint but ignored  at          summary judgment  may be  deemed waived.   "If  a party  fails to          assert a legal reason why summary judgment should not be granted,          that  ground  is waived  and cannot  be  considered or  raised on          appeal."  Vaughner  v. Pulito, 804  F.2d 873,  877 n.2 (5th  Cir.                    ________     ______          1986); see also  Liberles v. County of Cook,  709 F.2d 1122, 1126                 ________  ________    ______________          (7th  Cir.  1983).   This  is  because  "an  appellate court,  in          reviewing  a  summary judgment  order,  can  only consider  those          matters  presented  to  the district  court."    Frank  C. Bailey                                                           ________________          Enterprises, Inc. v. Cargill,  Inc., 582 F.2d 333, 334  (5th Cir.          _________________    ______________          1978).                    Although this alternative argument  can be found in the          complaint,  and  Grenier asserts  it  would have  been  raised at          trial, this  does not suffice to preserve  the issue.  Cyro moved          for summary judgment on  all counts based solely on  the validity          of the pre-offer inquiry  under   12112(d).  Grenier  argued only          that issue in  his brief.  Although he  made an oblique reference          in his  memorandum opposing summary judgment to Cyro's failure to          challenge  or  admit  his  "ultimate contention  that  Andre  was          discriminated against  on  the basis  of  his disability  by  the                                         -27-          rejection of his application," he concedes he never addressed the          alternative  claim  of  intentional  discrimination.    The  only          related evidence Grenier discussed  in his "statement of material          facts"  at summary judgment was that Lysaght stated on January 5,          1993 that  Cyro was not seeking  applicants, when it had  in fact          given notice  of the job  opening the day  before.  See  Ennis v.                                                              ___  _____          National Ass'n  of Business & Educ.  Radio, Inc., 53  F.3d 55, 58          ________________________________________________          (4th Cir. 1995) (discussing prima facie elements of claim under            12112(a)).   After the judge  entered final judgment  once he had          determined that  Cyro was  entitled  to summary  judgment on  the          issue   of  preemployment  medical   inquiries,  no   motion  for          reconsideration  was filed.  There is nothing in the record which          persuades us  to exercise  our discretion  to bend the  raise-or-          waive rule.                                   III.  CONCLUSION                                   III.  CONCLUSION                    For the  foregoing reasons, the District  Court's grant          of summary judgment is AFFIRMED.                                 AFFIRMED                                         -28-
