
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2234                                   ALEXANDER KATZ,                                Plaintiff, Appellant,                                          v.                                 CITY METAL CO.,INC.,                                VERDIG DEUTCHE NICKLE,                            AMERICA, INC., MILTON WILCOX,                                   AND PETER BRUNO,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                          _____________                                 ____________________            Robert E. Savage for appellant.            ________________            Michael P.  DeFanti, with  whom Hinckley,  Allen &  Snyder was  on            ___________________             __________________________        brief for appellees.                                 ____________________                                     July 2, 1996                                 ____________________                      BOWNES, Senior Circuit Judge.   Plaintiff/Appellant                      BOWNES, Senior Circuit Judge.                              ____________________            Alexander   Katz   ("Katz")   sued   his   former   employer,            Defendant/Appellee  City   Metal  Co.  ("City   Metal"),  its            President  Milton Wilcox  ("Wilcox") and its  Chief Executive            Officer  Peter Bruno  ("Bruno"),  under  the  Americans  with            Disabilities Act, 42 U.S.C.    12101 et seq.  (1995) ("ADA"),                                                 __ ____            and the Rhode Island Fair Employment Practices Act, R.I. Gen.            Laws     28-5-1  et seq.  (1995),  claiming that  City  Metal                             __ ____            unlawfully  discriminated  against  him  by  discharging  him            because of a disability.  See 42 U.S.C.   12112(a); R.I. Gen.                                      ___            Laws     28-5-6,  5-7.   At  the close  of  Katz's case,  the            district court granted City Metal's  motion for judgment as a            matter of law pursuant  to Fed. R. Civ. P.  50(a)(1), finding            that Katz had not presented  evidence sufficient to show that            he  had a  "disability"  as defined  under  the ADA.1    Katz            appeals.  We reverse and remand for a new trial.                                          I.                                          I.                                          __                                      BACKGROUND                                      BACKGROUND                                      __________                      City  Metal is  a corporation  that buys  and sells            scrap metal, employing more than fifteen employees.  Katz was            hired by City Metal on July  1, 1991.  On September 27, 1992,            he  suffered  a  heart  attack.    Five  weeks  later, Wilcox                                            ____________________            1.  Because  the  definition  of "handicap"  under  the Rhode            Island law is substantially identical to the ADA's definition            of "disability," we will not separately address the state law            claim.  Compare 42 U.S.C.   12102(2) with R.I. Gen. Law   28-                    _______                      ____            5-6(9).                                         -2-                                          2            telephoned Katz  and told him his  employment was terminated.            This  lawsuit followed, and ended at the close of Katz's case            in a judgment as a matter of law for City Metal.                      "We  review the  grant of a  Rule 50(a)  motion for            judgment as a matter of law de novo, under the same standards                                        __ ____            as the district court."  Andrade v. Jamestown  Housing Auth.,                                     ___________________________________            82 F.3d 1179, 1186 (1st Cir. 1996).  Accordingly, we "examine            the  evidence  and  all  fair inferences  in  the  light most            favorable  to  the  plaintiff  [and]  may  not  consider  the            credibility of witnesses, resolve conflicts in testimony,  or            evaluate the weight  of the evidence."  Richmond  Steel, Inc.                                                    _____________________            v. Puerto Rican American Ins. Co., 954 F.2d 19,  22 (1st Cir.            _________________________________            1992) (internal  quotation marks and citations  omitted).  To            warrant submission  of an  issue to  the jury,  the plaintiff            must present "more than a mere scintilla" of evidence and may            not  rely on conjecture or speculation.  Id.  "[T]he evidence                                                     ___            offered  must make the existence  of the fact  to be inferred            more  probable than  its nonexistence."   Resare  v. Raytheon                                                      ___________________            Co.,  981  F.2d 32,  34 (1st  Cir. 1992)  (internal quotation            ___            marks  and citations omitted).   To affirm  the withdrawal of            any claim  from the jury, we  must find that, as  a matter of            law,  the record would permit a reasonable jury to reach only            one conclusion as to that issue.  Richmond Steel, 954 F.2d at                                              ______________            22.                                           -3-                                          3                      With this standard in mind we rehearse the evidence            adduced by Katz.                                   The Trial Testimony                                 The Trial Testimony                                 ___________________                      Katz testified as follows.  City Metal hired him in            July of 1991 as a scrap  metal salesman because of his  prior            experience in the field.  He was assigned various territories            which he serviced by traveling in a company car.   At the end            of  1991,  Bruno asked  Katz to  take  an inside  position in            customer relations as a  liaison between the company and  its            customers.   Katz  accepted  and continued  in that  position            until July  of 1992.   During that  time Katz also  helped to            train  Wilcox, who was new to the business, and trained other            salesmen.  In July of 1992, Katz, at his request, returned to            being a salesman.  Up until  the time he was discharged, Katz            did not  receive any negative  reports or comments  about the            quality  of his performance and was not informed that his job            was in jeopardy.                      On Sunday,  September 27,  1992, while Katz  was in            Cleveland  visiting his family, he had a heart attack and was            taken by  ambulance  to the  Cleveland  Clinic.   During  his            seven-day   stay  there,   Katz  underwent   two  angioplasty            procedures  and  some  testing,   and  was  kept  in  cardiac            intensive  care.   He  was discharged  from  the hospital  on            Saturday,  October  3, 1991,  and  telephoned  Wilcox on  the            following Monday to  explain the situation.  Wilcox then sent                                         -4-                                          4            Katz  Rhode  Island temporary  disability  application forms.            Katz submitted them and  received disability payments for six            months, the maximum payable under Rhode Island law.                      After his  discharge from  the  hospital, Katz  had            great difficulty breathing, even  while sitting down, and was            extremely limited in his ability to walk.  After a few steps,            he became short  of breath and experienced chest pains, broke            into  sweats and became nauseous.   It was  necessary that he            keep stress to a minimum.                        Katz  went to  the company  office on  the Thursday            afternoon following his hospital discharge for the purpose of            discussing his  return to work.   Due to  the effects  of his            heart attack, Katz was unable to walk to the company's office            on  the second floor.   Wilcox therefore came  down to Katz's            car, where the two had a conversation.  Katz asked  about his            customers and told Wilcox he wanted to return to work as soon            as  possible, even if it was initially in a limited capacity.            Wilcox  told him not to  worry about his  customers, and that            the main thing was for Katz to get well.                      Katz  stayed in Rhode Island for about a week after            his  conversation with  Wilcox.   The cold  weather, however,            restricted his  breathing which,  in turn, made  walking even            more difficult.   Since Wilcox  had told him  that his  first            objective  should be to get well,  Katz decided to recuperate            at his family's apartment in Miami, Florida.                                         -5-                                          5                      On Friday, the last  working day of October, Wilcox            telephoned  Katz and told him  that he was  discharged.  Katz            called Wilcox the  following Monday and offered  to return to            work on  a part-time basis with a  reduction in salary and to            accept whatever accommodations the company would make.                      At the time of  the trial in October of  1995, Katz            still  had  some trouble  breathing  and  walking.    He  was            working,  having obtained a job on February 17, 1995 (after a            lengthy search  beginning in January of  1993), selling bonds            for the State of Israel.                      Katz also called Wilcox as a witness.  He testified            that Katz's brother called to tell him about the heart attack            two days after it occurred, and that he never questioned that            Katz had a heart attack.  He testified that Katz looked tired            when he  met him in  the parking lot,  and that he  told Katz            that  his  main objective  should  be  to  recover.    Wilcox            testified, however,  that  he had  decided  to fire  Katz  on            September 4, 1992 (prior to the heart attack), for failing to            submit  a weekly travel schedule as required, and that he had            merely waited until  the end  of October to  so inform  Katz.            Katz  also called Bruno as  a witness, who  testified that he            was instrumental in  hiring Katz, but  was not familiar  with            the circumstances of his termination.                           The Judgment As A Matter Of Law                           The Judgment As A Matter Of Law                           _______________________________                                         -6-                                          6                      After Katz, Wilcox, and Bruno had testified, Katz's            attorney informed the court  that he had one more  witness --            Katz's  treating physician  in Rhode  Island --  whom he  had            subpoenaed for  the following day.  The  court recessed until            the following  day, when  Katz's attorney informed  the court            that the doctor had declined to appear in court until Friday,            three  days  hence, and  requested  that he  be  permitted to            present  the  doctor's   testimony  in  rebuttal  after   the            defendants' case.  The  court stated that it would  deal with            the  issue  when  it arose  and  was  not  sure the  doctor's            testimony was "vital to the essence of your claim."                        When  asked to  state its  position on  the matter,            City Metal stated that it had received Katz's medical records            and that it did not dispute that Katz suffered a heart attack            or that it  perceived that  he suffered a  heart attack,  but            that it did  contest that Katz  was actually disabled  within            the meaning of the ADA.  At that point, the court stated that            Katz  could not  prove  that  he  was  disabled  without  the            testimony of his  doctor, and Katz  again requested either  a            continuance or  that the  doctor be permitted  to testify  in            rebuttal.  The court denied those requests and Katz rested.                      City Metal  then moved for judgment as  a matter of            law,  arguing that in order  to prove a  disability under the            ADA and the Rhode Island Fair Employment Practices  Act, Katz            was  required  to  show   that  the  heart  attack  "severely                                         -7-                                          7            restricted  a   basic  life  activity  on   a  permanent  and            continuing  basis," and that he  had failed to  do so because            there had been no medical testimony that Katz was permanently            impaired  in a major life activity.  In response, Katz argued            that his testimony established that the heart attack resulted            in  hospitalization, and  impaired  his  ability to  breathe,            walk, perform manual  tasks, care for  himself and work,  and            that the evidence therefore met each of the three alternative            definitions of the term "disability" under the ADA -- that he            had a  physical impairment that substantially  limited one or            more major life  activities, that he had a record  of such an            impairment, and that  City Metal regarded him  as having such            an impairment.  See 42 U.S.C.   12102(2).                            ___                      The district court ruled as follows:                      The  question is  whether  it produced  a                      permanent   disability   that  he   can't                      perform  his work.   It's obvious  he's a                      salesman, and  he's still selling. .  . .                      In order for the Plaintiff to recover  in                      this  case, the  Plaintiff  must  make  a                      showing   that  he   has  some   type  of                      permanent impairment, physical impairment                      in   one  or   more   of   life's   major                      activities.   There's been no  showing of                      that in this case.                      The  only  evidence  is  that  he  has  a                      blocked  artery  that  was  opened  up by                      balloon  angioplasty.  That does not show                      that  he has  a  permanent disability  or                      heart disease.  I know.  I've been there.                      I had a heart attack.                      People recover from heart attacks  and go                      on with life's  functions.  I  know, I've                      done  it, and  I had  an artery  that was                                         -8-                                          8                      completely  blocked   and  not  reopened.                      Because  I went  through a  rehab program                      where I developed the collateral arteries                      to take over the function of that artery,                      now I  can perform.   I'm playing tennis.                      I'm doing aerobic  exercises every  other                      day.   I can  perform fully in  my life's                      functions as a Judge, where there's a lot                      more  stress  than some  other vocations.                      So  I have  personal experience  in this.                      Now a judge can't  put aside his personal                      experiences in life in deciding cases.                        I  have decided it as a matter of law.  I                      have  decided  the  Plaintiff  failed  to                      prove  that he had a permanent disability                      resulting from his heart attack.                                         II.                                         II.                                      DISCUSSION                                      DISCUSSION                                      __________                      The district  court erred in ruling  that there was            insufficient evidence of disability within the meaning of the            ADA.   We start with the words of the statute.  The Americans            with  Disabilities Act  is  a federal  civil rights  statute,            enacted  "to  provide  a  clear  and  comprehensive  national            mandate   for  the  elimination   of  discrimination  against            individuals with  disabilities."   42  U.S.C.    12101(b)(1).            See also Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 671            ___ ____ __________________________________            (1st  Cir.  1995).    In  the  employment  context,  the  ADA            prohibits a "covered entity" (defined as "a person engaged in            an industry affecting commerce who has 15 or more employees")            from "discriminat[ing] against a qualified individual  with a            disability because  of the  disability of such  individual in            regard   to   job   application   procedures,   the   hiring,                                         -9-                                          9            advancement,    or    discharge   of    employees,   employee            compensation, job training, and other terms,  conditions, and            privileges  of employment."  42 U.S.C.   12112(a).  To obtain            relief under the  Act, a plaintiff  must prove three  things.            First,  that he was disabled  within the meaning  of the Act.            Second, that with or  without reasonable accommodation he was            able  to perform  the essential  functions of  his job.   And            third, that the employer  discharged him in whole or  in part            because of his disability.2                        In light  of the district court's  ruling, we focus            on the first  element --  "disability" -- as  defined in  the            ADA:                      The term "disability" means, with respect                      to an individual --                       (A)  a physical or mental impairment that                      substantially limits  one or more  of the                      major life activities of such individual;                      (B) a record of such an impairment; or                       (C)  being  regarded  as having  such  an                      impairment.                                            ____________________            2.  A   plaintiff   may   indirectly   prove   that  he   was            discriminated against  because of  a disability by  using the            prima facie case and  burden shifting methods that originated            _____ _____            in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and               ________________________________            were  refined  and  sharpened  in Texas  Dep't  of  Community                                              ___________________________            Affairs  v. Burdine, 450 U.S. 248 (1981) and St. Mary's Honor            ___________________                          ________________            Ctr. v. Hicks, 509 U.S. 502  (1993).  See Benson v. Northeast            _____________                         ___ ___________________            Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir. 1995); DeLuca v.            ______________                                      _________            Winer  Indus., Inc.,  53  F.3d 793,  797-98 (7th  Cir. 1995);            ___________________            White v. York  Int'l Corp.,  45 F.3d 357,  360-61 (10th  Cir.            __________________________            1995).                                         -10-                                          10            42 U.S.C.   12102(2).                      A  "physical  impairment"  is "[a]ny  physiological            disorder, or condition  . . . or  anatomical loss affecting,"            inter alia, the "cardiovascular" system.  29 C.F.R.    1630.2            _____ ____            (h)(1)  (1995).    "Major  life activities"  are  defined  as            "functions  such as  caring  for  oneself, performing  manual            tasks,   walking,   seeing,  hearing,   speaking,  breathing,            learning,   and   working."      29   C.F.R.       1630.2(i).            "Substantially limited" is defined as:                           (i) Unable to  perform a major  life                      activity that  the average person  in the                      general population can perform; or                           (ii) Significantly  restricted as to                      the condition, manner  or duration  under                      which   an   individual  can   perform  a                      particular   major   life   activity   as                      compared  to  the  condition,  manner  or                      duration under which  the average  person                      in  the  general  population can  perform                      that same major life activity.            29  C.F.R.    1630.2(j)(1).    Factors  to be  considered  in            assessing whether an individual is substantially limited in a            major life activity are:                           (i) The  nature and severity  of the                      impairment;                           (ii)   The   duration  or   expected                      duration of the impairment; and                            (iii)  The  permanent  or long  term                      impact, or the expected permanent or long                      term  impact of  or  resulting  from  the                      impairment.                                         -11-                                          11            29  C.F.R.      1630.2(j)(2).3     According  to   the  Equal            Employment                                             ____________________            3.  The   regulations  set   forth   a  more   particularized            definition of what it means  to be "substantially limited  in            the  major  life  activity of  working."    See  29 C.F.R.                                                           ___            1630(j)(3).   We need not  consider the permutations  of that            definition,   however,   because   if   an    individual   is            substantially  limited in  a major  life activity  other than            working, or is so regarded, "no determination should  be made            as  to whether  the  individual is  substantially limited  in            working."  29 C.F.R. Pt. 1630, App., at 403.                                         -12-                                          12            Opportunity Commission's Compliance Manual:                      Although       short-term,      temporary                      restrictions     generally     are    not                      substantially  limiting,   an  impairment                      does not necessarily have to be permanent                      to rise  to the  level  of a  disability.                      Some  conditions  may  be   long-term  or                      potentially  long-term,   in  that  their                      duration is indefinite and  unknowable or                      is  expected  to   be  at  least  several                      months.  Such conditions, if  severe, may                      constitute disabilities.            2 EEOC  Compliance Manual,  Interpretations (CCH)    902.4,              6884,  p. 5319  (1995).   Examples  of  impairments that  are            "usually  not disabilities"  because  they  are  "temporary,"            "non-chronic," and "of short duration, with little or no long            term  or  permanent  impact,"  are  "broken  limbs,  sprained            joints, concussions, appendicitis, and influenza."  29 C.F.R.            Pt. 1630, App. at 402.                          Especially given that City Metal has never disputed            that  Katz  had a  heart  attack,  we have  no  doubt that  a            rational  jury could  conclude,  even without  expert medical            testimony,  that   Katz  had   a   condition  affecting   the            cardiovascular system  and therefore  that he had  a physical            impairment  under the ADA.4   29 C.F.R.    1630.2 (h)(1).  We                                            ____________________            4.  In Cook  v. State of  Rhode Island, Department  of Mental                   ______________________________________________________            Health,  Retardation, and  Hospitals,  10 F.3d  17 (1st  Cir.            ____________________________________            1993),  a case under Section 504 of the Rehabilitation Act of            1973 (which is  interpreted substantially identically to  the            ADA, 42  U.S.C.     12117(b), 12201(a)),  we upheld  the jury            verdict  in  favor  of  plaintiff,  in   part  based  on  her            presentation  of   expert  medical  testimony   that  "morbid            obesity"  was  a  physiological  disorder  that  affected the            musculoskeletal,  respiratory,  and  cardiovascular  systems.                                         -13-                                          13            think, however, that it is a very close question whether Katz            offered sufficient  evidence  to prove  that that  impairment            "substantially limited" his major life activities within  the            meaning  of the  ADA,  his scheduled  expert medical  witness            having proved unavailable.                        As  might reasonably  be expected  after any  major            trauma  and resultant  medical procedure  or surgery,  Katz's            ability to  breathe, walk and work  was substantially limited            in  the period  immediately  following the  heart attack  and            angioplasty procedures.  This does not, however,  necessarily            lead  to  the conclusion  that Katz  had  a disability.   See                                                                      ___            McDonald v. Commonwealth of Pennsylvania,  62 F.3d 92, 96 (3d            ________________________________________            Cir.  1995)  (inability  to  work for  two  months  following            surgery  not  a  disability).   We  think  that  it would  be            difficult for a  lay jury  to conclude, based  solely on  the            immediate effects of a heart attack and angioplasty procedure            on Katz,  that those limitations were  permanent or persisted            on a long-term basis,  or that their duration was  indefinite            and unknowable or  expected to  be at  least several  months.            Katz was apparently prepared  to present medical testimony to            this effect  but, as  already noted,  his medical  expert was            unavailable and the court declined to delay the trial.                                            ____________________            Id. at 23.  In a case like Cook, where it is not obvious to a            __                         ____            lay jury that the condition affects one of the bodily systems            listed  in the regulations, expert testimony that it does may            well be necessary to avoid a judgment as a matter of law.                                           -14-                                          14                      There  is  certainly no  general rule  that medical            testimony is always necessary  to establish disability.  Some            long-term impairments would be obvious to a lay jury (e.g., a                                                                  ____            missing  arm)  and  it  is  certainly  within  the  realm  of            possibility that  a plaintiff himself in  a disabilities case            might  offer a description of treatments  and symptoms over a            substantial  period that  would put  the jury  in  a position            where it could determine that he did suffer from a disability            within the meaning  of the ADA.  On this  record, we think it            is a much closer  case whether Katz put such  evidence before            the jury.                      The  bulk  of the  evidence  as  to Katz's  medical            condition  related primarily  to  his  situation  immediately            after the  operation, including his initial  effort to return            to work  in which he was  so stricken that he  could not even            leave the car and climb up a flight of stairs  to the office.            Katz did testify that even  three years after the  operation,            he still felt in  poor condition; but that testimony  was far            more  general  and  far  less  specific  than  his  testimony            regarding the impact of the  heart attack in the month or  so            immediately following its occurrence.                       We think it  was unwise for  the district court  to            invoke   its  own  medical   experience  in   explaining  its            determination that Katz's evidence was inadequate, since  the                                         -15-                                          15            determination of whether an impairment substantially limits a                                         -16-                                          16            major activity must be made on an individual basis:                        The    determination   of    whether   an                      individual  has a  disability  is  . .  .                      based  .  .  .  on  the  effect  of  that                      impairment on the life of the individual.                      Some  impairments  may  be disabling  for                      particular   individuals   but  not   for                      others.            29 C.F.R. Pt.  1630, App. at 402.  See  also Chandler v. City                                               ___  ____ ________________            of Dallas,  2 F.3d  1385, 1396  (5th Cir. 1993)  (recognizing            _________            that "the effect of a given type of impairment . . . can vary            widely from individual to  individual"), cert. denied, 114 S.                                                     ____  ______            Ct  1386 (1994).   Nonetheless,  it is  at least  a debatable            question whether,  based on Katz's testimony,  the jury could            conclude  that   he  suffered   from  a  continuing   medical            condition, persisting beyond the period immediately after the            operation,  that substantially  limited  one or  more of  his            major life activities.                        We  need  not  definitively  resolve  the issue  of            whether expert  medical testimony was necessary  for the case            to go forward on a theory of actual disability in this  case,            because we think  that the evidence  permitted Katz to  reach            the  jury  under  one   of  the  alternative  definitions  of            disability, that  City Metal "regarded [Katz]  as having such            an  impairment."    41  U.S.C.     12102(2)(C).    Under  the            regulations an individual  who has an impairment  that is not            substantially  limiting  (or has  no  impairment  at all)  is            nevertheless  "disabled" if he is  treated by the employer as                                         -17-                                          17            having an impairment that does substantially limit major life            activities.  29 C.F.R.    1630.2(l)(1).  An example  given is            an employee  whose controlled  high blood  pressure is  not a            disability  but  is reassigned  because  the employer  fears,            wrongly, that the  employee may have a heart attack.  Id. Pt.                                                                  ___            1630, App.  See also Cook, 10 F.3d at 20-21, 23, 25 (employer                        ___ ____ ____            treated  employee as  handicapped by  refusing to  rehire her            based on its belief that her morbid  obesity would compromise            her ability to  do her job and put her  at risk of developing            serious ailments).                      In this case, Katz alleged in his complaint that he            was  not only  actually disabled  but also  perceived by  his            employer to  be disabled, and was  fired because of  it.  The            dramatic encounter at the office, in which Katz was unable to            climb the stairs and Wilcox observed his fatigue, is only one            piece  of evidence; others  included the employer's knowledge            of    the   heart    attack,   angioplasty    procedure   and            hospitalization, and yet another was Katz's own statements to            his employer that when  he returned to work it would at least            initially  have to be  in a  limited capacity.   Cf.  Hamm v.                                                             __   _______            Runyon, 51 F.3d 721, 724-26 (7th Cir. 1995) (employer did not            ______            "regard"  employee as  disabled where  there was  no evidence            that the  person who made  the decision to fire  him was even            told about the employee's arthritis; employee told his direct            supervisor  that  it  was  "nothing"  and  "would  pass"  and                                         -18-                                          18            continued to  do all of the  functions of his job).   Even if            medical  expert testimony  were required  here to  permit the            jury  to  find that  Katz  was  suffering from  a  continuing            serious  heart condition,  the  jury certainly  did not  need            medical testimony in making  its own judgment as to  what the            employer may have perceived, rightly or wrongly, about Katz's            condition.                      When the district  court proposed  to withdraw  the            case from the jury and  direct a verdict, Katz argued to  the            court  that regardless  of actual  medical condition,  he had            provided a basis for  the jury to conclude that  the employer            perceived him to  be disabled.   The judge  did not  directly            respond  to this assertion.   Katz has renewed  it on appeal,            but City Metal's brief also fails  to respond in any depth to            the perception argument.  At least on this record, we have to            conclude  that Katz did provide  enough evidence to reach the            jury on the issue of perception which, as already noted, does            constitute disability within the meaning of the Act.                      Congress, when it provided for perception to be the            basis of disability status,  probably had principally in mind            the  more usual  case in  which a  plaintiff has  a long-term            medical condition of some  kind, and the employer exaggerates            its   significance   by   failing   to   make  a   reasonable            accommodation.   But  both  the language  and  policy of  the            statute seem to us to offer protection as well to  one who is                                         -19-                                          19            not substantially disabled  or even  disabled at  all but  is            wrongly perceived to be so.   And, of course, it may  well be            that Katz was both actually disabled and perceived to be so.                      The second  element of proof is  ability to perform            the essential functions of the job with or without reasonable            accommodation.   See 42 U.S.C.    12111(8).   Katz  testified                             ___            that  five days  after his  discharge from  the  hospital and            again  two  days  after he  was  fired,  he  asked Wilcox  to            accommodate him by allowing him to return to  work on a part-            time  basis.    On  the  latter occasion,  Katz  suggested  a            reduction  in  salary  and  said  he  would  accept  whatever            accommodations the  company would make  in order to  keep his            job.   Reasonable  accommodations include,  inter alia,  "job                                                        _____ ____            restructuring  [and] part-time  or modified  work schedules."            42 U.S.C.    12111(9).  As  we noted in  Grenier v.  Cyanamid                                                     ____________________            Plastics, Inc.:            ______________                      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.6b  (citing H.R. Rep. No.                      ________                      485   (Pt.   2),    supra,   at    65-66,                                          _____                      U.S.C.C.A.N. at 347-48).            70  F.3d at  677.   Katz's suggestions  were rejected  out of            hand.  The district judge did not say that Katz had failed to            show  that   he  could   perform  his  job   with  reasonable                                         -20-                                          20            accommodations, nor does City Metal offer  any argument as to            this element on appeal.5                        The third  element of plaintiff's  case, that  Katz            was fired because of a disability, or that his disability was            a motivating  factor in  City Metal's  decision to  fire him,            Pedigo v.  P.A.M. Transport, Inc.,  60 F.3d  1300, 1301  (8th            ________________________________            Cir. 1995),  also was a question  of fact for the  jury.  The            timing  of Katz's firing,  one month after  his heart attack,            was circumstantial  evidence from  which the jury  could find            that Katz's disability  triggered, in whole  or in part,  his            firing by City Metal.                      We rule  that the court erred  in granting judgment            as a matter of law for City Metal, because the evidence would            permit the  conclusion that Katz established  that City Metal            regarded  him  as   having  an   impairment  constituting   a            disability under section  12102(2)(C) of the  Act.  Thus,  he            proved a prima facie case of discrimination under the ADA and                     _____ _____            the Rhode Island Fair Employment Practices Act.                       Where  there must be a  remand for a  new trial, we            have broad authority to draft a remand order that is fair and            just.  28  U.S.C.   2106.  In this  instance, given that Katz            was  deprived  of  his  medical  testimony  more  or  less by            accident, we  see no reason  why on retrial he  should not be                                            ____________________            5.  City Metal was free,  of course, to attempt to  show that            accommodating  Katz  would  have  imposed  on  it  an  "undue            hardship."  42 U.S.C.   12111(10).                                         -21-                                          21            allowed to present  expert testimony in  a timely fashion  in            order to show an actual disability under the statute.                        Accordingly, we reverse and remand for a new trial,                                      _______     ______            leaving it open to Katz to retry the case under any or all of            the three theories of disability available under the statute.                      Costs on appeal awarded to appellant.                                         -22-                                          22
