                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-15-1998

Deane v. Pocono Med Ctr
Precedential or Non-Precedential:

Docket 96-7174




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Recommended Citation
"Deane v. Pocono Med Ctr" (1998). 1998 Decisions. Paper 81.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/81


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Filed April 15, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-7174

STACY L. DEANE,
Appellant

v.

POCONO MEDICAL CENTER

Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civ. Action No. 94-1139)

Argued: January 31, 1997

Before: BECKER and ROTH, Circuit Judges,
and BARRY, District Judge.*

Reargued En Banc: January 29, 1998

Before: SLOVITER, Chief Judge, BECKER, STAPLETON,
MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD,
ALITO, ROTH, LEWIS,** McKEE, and RENDELL,
Circuit Judges.

(Filed April 15, 1998)



_________________________________________________________________
*Honorable Maryanne Trump Barry, United States District Judge for the
District of New Jersey, sitting by designation.

**Judge Lewis heard argument in this matter but was unable to clear the
opinion due to illness.
       DEBRA A. JENSEN, ESQUIRE
       (Argued)
       DANIEL BENCIVENGA, ESQUIRE
       Galfand, Berger, Lurie, Brigham,
       Jacobs, Swan, Jurewicz & Jensen,
        LTD.
       Suite 2300, 1818 Market Street
       Philadelphia, PA 19103-3623
       Attorneys for Appellant Stacy L.
       Deane

       SIDNEY R. STEINBERG, ESQUIRE
       (Argued)
       Post & Schell, P.C.
       1800 JFK Boulevard, 19th Floor
       Philadelphia, PA 19103
       Attorneys for Appellee
       Pocono Medical Center

OPINION OF THE COURT

BECKER, Chief Judge.***

This is an appeal by Stacy L. Deane from an order of the
district court granting summary judgment to her former
employer, Pocono Medical Center ("PMC"), on Deane's claim
under the Americans with Disabilities Act ("ADA" or the
"Act"), 42 U.S.C. S 1201 et seq. In enacting the ADA,
Congress intended that the scope of the Act would extend
not only to those who are actually disabled, but also to
individuals wrongly regarded by employers as being
disabled. Deane, a registered nurse, sued PMC under the
ADA as such a "regarded as" plaintiff to redress PMC's
failure to accommodate her in a manner that would enable
her to retain her position following a work-related injury
that affected her ability to do heavy lifting.1 The case came
_________________________________________________________________

***Honorable Edward R. Becker, United States Circuit Judge for the
Third Circuit, assumed Chief Judge status on February 1, 1998.
1. Deane also alleges that PMC improperly terminated her employment in
violation of the Rehabilitation Act of 1973, 29 U.S.C. SS 701 et seq., and
the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. Ann.
SS 951 et seq. Those claims are not before us.

                               2
before the en banc court to settle the question that divided
the original panel -- whether "regarded as" plaintiffs, in
order to be considered qualified under the ADA, must show
that they are able to perform all of the functions of the
relevant position or just the essential functions, with or
without accommodation. The panel decided that they must
be able to perform all of the functions. Before the en banc
court, neither party supported that position, and we now
reject it, concluding that the plain language of the ADA
requires proof only of a plaintiff 's ability to perform a
position's essential functions.

This conclusion forces us to determine whether Deane
has adduced sufficient evidence to create a genuine issue of
material fact with respect to two elements of her prima facie
case: (1) whether PMC misperceived Deane as being
disabled; and (2) whether Deane is a "qualified individual",
a decision that turns on whether lifting is an essential
function of nursing at PMC. Because we conclude that
Deane has adduced sufficient evidence regarding both of
these matters, we hold that summary judgment was
inappropriate. Accordingly, the judgment of the district
court will be vacated and the case remanded for further
proceedings.

The panel addressed a second question of much greater
difficulty -- whether "regarded as" plaintiffs must be
accommodated by their employers within the meaning of
the ADA. It may well be, as two members of the panel
concluded, that after the employer is disabused of its
improper perception of the individual's disability, there is
no reason to afford the individual any special treatment,
and hence the employee is not statutorily entitled to
accommodation from the employer. However, as resolution
of that issue is not necessary to final disposition of this
appeal, we will not decide it.

I.

In April 1990, PMC hired Deane as a registered nurse to
work primarily on the medical/surgical floor. On June 22,
1991, while lifting a resistant patient, she sustained a
cartilage tear in her right wrist causing her to miss

                               3
approximately one year of work. In June 1992, Deane and
Barbara Manges, a nurse assigned to Deane's workers'
compensation case, telephoned PMC and advised Charlene
McCool, PMC's Benefits Coordinator, that Deane intended
to return to work with certain restrictions. According to
Deane, she informed McCool that she was unable to lift
more than 15-20 pounds or perform repetitive manual
tasks such as typing, but that her physician, Dr. Osterman,
had released her to return to "light duty" work.2 Deane
further explained to McCool that, if she could not be
accommodated in a light duty position on the
medical/surgical floor, she was willing to move to another
area of the hospital, as long as she could remain in
nursing. Unfortunately, this telephone call was PMC's only
meaningful interaction with Deane during which it could
have assessed the severity of or possible accommodation for
her injuries. PMC never requested additional information
from Deane or her physicians, and, according to Deane,
when she subsequently attempted to contact PMC on
several occasions, she was treated rudely by McCool and
told not to call again.

After speaking with Deane and Manges, McCool advised
Barbara Hann, PMC's Vice President of Human Resources,
of Deane's request to return to work, of her attendant work
restrictions, and of her stated need for accommodation.
Shortly after considering the information conveyed by
McCool and after comparing it to the job description of a
medical/surgical nurse at PMC, Hann determined that
Deane was unable to return to her previous position. Hann
then asked Carol Clarke, PMC's Vice President of Nursing,
and Susan Stine, PMC's Director of Nursing Resources/
_________________________________________________________________

2. In a letter dated June 8, 1992, the contents of which were
communicated by Deane and Manges to McCool during their telephone
conversation, Dr. Osterman opined as follows:

         I do not think [Deane] can return to unrestricted nursing i.e. I
would
         place a lifting limit of 20 pounds and a limit on unrestricted
         repetitive motion of her wrist. She does believe that she can
return
         to some nursing and I would agree with this. She has suggested
         pediatric nursing, neonatal nursing and possibly even the cancer
         unit at the hospital which apparently does not involve lifting the
         patients. All would be acceptable.

                                 4
Patient Care Services, to review Deane's request to return
to PMC and to explore possible accommodations for her.
Both Clarke and Stine concluded that Deane could not be
accommodated in her previous job as a nurse on the
medical/surgical floor or in any other available position at
the hospital. Finally, Hann asked Marie Werkheiser, PMC's
Nurse Recruiter, whether there were any current or
prospective job openings for registered nurses at PMC.
According to Werkheiser, there were no such openings at
that time.

As a result of the collective determination that Deane
could not be accommodated in her previous job or in any
other available position in the hospital, PMC sent Deane an
"exit interview" form on August 7, 1992. On August 10,
1992, Hann notified Deane by telephone that she could not
return to work because of her "handicap", and this
litigation ensued. In March 1993, Deane accepted a
registered nurse position at a non-acute care facility, where
she remained until May 1993. Deane has been employed by
a different non-acute care facility since July 1993. Neither
of these positions require heavy lifting, bathing patients, or
the like.

Deane argued to the district court that she was both
actually disabled as a result of her injury and that she was
perceived to be so by PMC. On summary judgment, the
court rejected both theories and held that Deane was
neither disabled nor regarded by her employer as being
disabled and that, even if she were, she failed to meet the
statutory definition of a qualified individual with a
disability. Deane has not appealed the district court's
determination that she was not actually disabled. Indeed,
she now concedes that "[i]n light of the decisional trends in
this Circuit and others," she is not now and never was
disabled and, consequently, that, but for PMC's erroneous
perception of her actual impairment, she would have no
claim under the ADA.

What is left, then, are Deane's contentions that she was
disabled under the terms of the ADA by virtue of the fact
that PMC regarded her limitations as being far worse than
they actually were, that PMC failed to accommodate her
lifting restriction, and that she was eventually terminated

                               5
on account of PMC's perception that she was disabled. In
support of her perception claim, Deane relies on a"laundry
list" of PMC's allegedly erroneous perceptions. According to
Deane, PMC believed that she was unable to lift more than
ten pounds, push or pull anything, assist patients in
emergency situations, move or assist patients in the
activities of daily living, perform any patient care job at
PMC or any other hospital, perform CPR, use the rest of her
body to assist patients, work with psychiatric patients, or
use medical equipment. Deane refutes each of these
perceptions -- or, in her view, misperceptions-- and
contends that her injury was, in fact, relatively minor in
nature. Deane further contends that PMC should be held
responsible for these misperceptions because they were the
result of PMC's "snap judgment" arrived at without making
a good faith analysis, investigation, or assessment of the
nature of her injury.

Finally, Deane maintains that she requires and is entitled
to accommodation for her lifting restriction. In this regard,
Deane contends that she could be accommodated either in
her previous position as a nurse on the medical/surgical
floor or through reassignment to another position that
would not require heavy lifting. As to the former, Deane has
suggested the following accommodations: (1) use of an
assistant to help her move or lift patients; (2)
implementation of a functional nursing approach, in which
nurses would perform only certain types of nursing tasks;
and (3) use of a Hoyer lift to move patients. Deane also
maintains that she could have been transferred to another
unit within the medical center such as the pediatrics,
oncology, or nursery units, which would not have required
heavy lifting. In the alternative, Deane submits that she can
perform the essential functions of her previous job in the
medical/surgical floor without accommodation because
lifting is not an essential function of nursing. We set forth
our jurisdiction and standard of review in the margin.3
_________________________________________________________________

3. We have appellate jurisdiction over the district court's grant of
summary judgment pursuant to 28 U.S.C. S 1291. Because our standard
of review is plenary, see Kelly v. Drexel University, 94 F.3d 102, 104 (3d
Cir. 1996), we apply the same test the district court should have applied

                               6
II.

The core anti-discrimination section of the ADA provides
that:

       No covered entity shall 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. S 12112. In order to make out a prima facie case
under the ADA, a plaintiff must be able to establish that he
or she (1) has a "disability" (2) is a "qualified individual"
and (3) has suffered an adverse employment action because
of that disability. See Gaul v. Lucent Techs. Inc., 134 F.3d
576, 580 (3d Cir. 1998).

A.

Turning to the first prong of the prima facie case, we
must determine whether Deane is disabled under the terms
of the Act. The ADA defines a "disability" as:

       (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.

42 U.S.C. S 12102(2); 29 C.F.R. S 1630.2(g).4 Because
_________________________________________________________________

in the first instance. See Olson v. General Electric Astrospace, 101 F.3d
947, 951 (3d Cir. 1996); Helen L. v. DiDario, 46 F.3d 325, 329 (3d Cir.
1995). We must determine, therefore, whether the record, when viewed
in the light most favorable to Deane, shows that there is no genuine
issue of material fact and that PMC was entitled to summary judgment
as a matter of law. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317,
322-
23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986);
Olson, 101 F.3d at 951.

4. Because the ADA does not define many of the pertinent terms, we are
guided by the Regulations issued by the Equal Employment Opportunity

                                7
Deane concedes that she is not actually disabled, but that
she was only "regarded as" being disabled, we direct our
focus to the third tier of the statutory definition. Read in
conjunction with the first tier, which defines an actual
disability, the third tier requires us to determine whether
PMC regarded Deane as having an impairment and whether
the impairment, as perceived by PMC, would have
substantially limited one or more of Deane's major life
activities.5 Deane's actual impairment, therefore, is of no
consequence to our analysis.
_________________________________________________________________

Commission ("EEOC") to implement Title I of the Act. See 42 U.S.C.
S 12116 (requiring the EEOC to implement said Regulations); 29 C.F.R.
S 1630.2. Regulations such as these are entitled to substantial deference.
See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 844 (1984); Blum v. Bacon, 457 U.S. 132, 141 (1982); Helen L.
v. DiDario, 46 F.3d 325, 331-32 (3d Cir. 1995).
5. With the "regarded as" prong, Congress chose to extend the
protections of the ADA to individuals who have no actual disability. The
primary motivation for the inclusion of misperceptions of disabilities in
the statutory definition was that "society's accumulated myths and fears
about disability and diseases are as handicapping as are the physical
limitations that flow from actual impairment." See 29 C.F.R. pt. 1630,
app. S 1630.2(l) (EEOC's "Interpretive Guidance" to the ADA) (citing
School Bd. of Nassau County v. Arline, 480 U.S. 273, 284 (1987)).

The limited legislative history also confirms that Congress's primary
concern in enacting the "regarded as" prong of the ADA was for
individuals with no limitations but who, because of some non-limiting
impairment, are prevented from obtaining employment as a result of
societal prejudices. As the final House Report provides:

          The rationale for this third test [the "regarded as" prong] as
used
         in the Rehabilitation Act of 1973, was articulated   by the Supreme
         Court in School Board of Nassau County v. Arline .   The Court noted
         that although an individual may have an impairment   that does not
         in fact substantially limit a major life activity,   the reactions of
others
         may prove just as disabling. "Such an impairment might not
         diminish a person's physical or mental capabilities, but could
         nevertheless substantially limit that person's ability to work as a
         result of the negative reactions of others to the impairment."

          The Court concluded that, by including this test, "Congress
         acknowledged that society's accumulated myths and fears about
         disability and diseases are as handicapping as are the physical
         limitations that flow from actual impairment."

H.R. Rep. No. 101-485(III) (1990) at 30, reprinted in, 1990 U.S.C.C.A.N.
445, 453 ("House Judiciary Report") (footnotes omitted).
8
Turning to the EEOC Regulations, they provide that an
individual is "regarded as" being disabled if he or she:

        (1) [h]as a physical or mental impairment that does
        not substantially limit major life activities but is
        treated by a covered entity as constituting such
        limitation;

        (2) [h]as a physical or mental impairment that
        substantially limits major life activities only as a result
        of the attitude of others toward such impairment; or

        (3) [h]as none of the impairments defined in
        paragraph (h)(1) or (2) of this section but is treated by
        a covered entity as having a substantially limiting
        impairment.6

29 C.F.R. S 1630.2(l). See also H.R. Rep. No. 101-485 (II), at
53 (1990) ("House Labor Report"), reprinted in 1990
U.S.C.C.A.N. 303, 335; House Judiciary Report at 29,
reprinted in 1990 U.S.C.C.A.N. at 452. Common to each
definition is the requirement that the individual not in fact
have an impairment that, absent the misperceptions of
others, would substantially limit a major life activity.

Deane contends that she satisfies the first definition
because PMC erroneously perceived that the nature and
extent of her physical impairment "substantially limited"
her ability to "work", which is included within the EEOC's
definition of a "major life activity".7 See generally Olson, 101
_________________________________________________________________

6. 29 C.F.R. S 1630.2(h) defines "physical or mental impairment" as:

        (1) [a]ny physiological disorder, or condition, cosmetic
        disfigurement, or anatomical loss affecting one or more of the
        following body systems: neurological, musculoskeletal, special
sense
        organs, respiratory (including speech organs), cardiovascular,
        reproductive, digestive, genito-urinary, hemic and lymphatic, skin,
        and endocrine; or

        (2) [a]ny mental or psychological disorder, such as mental
        retardation, organic brain syndrome, emotional or mental illness,
        and specific learning disabilities.

7. Major life activities include, but are not limited to, "functions such
as
caring for oneself, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working," see 29 C.F.R. S 1630.2(i), as

                                9
F.3d at 953-55; MacDonald v. Delta Airlines, Inc., 94 F.3d
1437, 1445 (10th Cir. 1996); Bridges v. City of Bossier, 94
F.3d 329, 333-34 (5th Cir. 1996). The district court rejected
Deane's perceived disability claim on three grounds. First,
the court found, as a matter of undisputed fact, that PMC
regarded Deane's impairment as limiting only her ability to
work as a nurse on the surgical/medical floor, not her
ability to work as a nurse in general. Next, the court
determined that Deane could not have been generally
precluded from working in her field because, following her
termination from PMC, she held two positions as a
registered nurse. Finally, the court concluded, as a matter
of law, that PMC's perception of Deane's impairment was
not motivated by "myth, fear or stereotype" and, therefore,
was not actionable under the ADA. We disagree with all
_________________________________________________________________

well as "sitting, standing, lifting, [and] reaching." 29 C.F.R. pt. 1630,
app. S 1630.2(i); House Labor Report at 52, reprinted in 1990
U.S.C.C.A.N. at 334; House Judiciary Report at 28-29, reprinted in 1990
U.S.C.C.A.N. at 451.

Where, as here, the major life activity at issue is working, the term
"substantially limited" is defined as "significantly restricted in the
ability
to perform either a class of jobs or a broad range of jobs in various
classes as compared to the average person having comparable training,
skills and abilities." Olson, 101 F.3d at 952 (citing 29 C.F.R.
S 1630.2(j)(3)(i)). Thus, the mere "inability to perform a single,
particular
job does not constitute a substantial limitation in the major life
activity
of working." Id. In making these determinations, courts may consider:

         (A) [t]he geographical area to which the individual has reasonable
         access;

         (B) [t]he job from which the individual has been disqualified
         because of an impairment, and the number and types of jobs
         utilizing similar training, knowledge, skills or abilities, within
that
         geographical area, from which the individual is also disqualified
         because of the impairment (class of jobs); and/or

         (C) [t]he job from which the individual has been disqualified
         because of an impairment, and the number and types of other jobs
         not utilizing similar training, knowledge, skills or abilities,
within
       that geographical area, from which the individual is also
disqualified
       because of the impairment (broad range of jobs in various classes).
29 C.F.R. S 1630.2(j)(3)(ii).

                                10
three of the court's rationales, discussing them in reverse
order.

Although the legislative history indicates that Congress
was concerned about eliminating society's myths, fears,
stereotypes, and prejudices with respect to the disabled, the
EEOC's Regulations and Interpretive Guidance make clear
that even an innocent misperception based on nothing
more than a simple mistake of fact as to the severity, or
even the very existence, of an individual's impairment can
be sufficient to satisfy the statutory definition of a perceived
disability. See 29 C.F.R. pt. 1630, app.S 1630.2(l)
(describing, as one example of a "regarded as" disabled
employee, an individual with controlled high blood pressure
that is not substantially limiting, who nonetheless is
reassigned to less strenuous work because of the
employer's unsubstantiated fear that the employee will
suffer a heart attack). Thus, whether or not PMC was
motivated by myth, fear or prejudice is not determinative of
Deane's "regarded as" claim.

The second ground -- that Deane's subsequent
employment in the field of nursing demonstrated that she
was not substantially limited in the major life activity of
working -- confuses her actual impairment with PMC's
misperception thereof. Deane's subsequent work history
could, at most, reflect her lack of an actual disability, and
it therefore sheds no light whatever on whether, at the time
of her termination, PMC regarded her impairment as
substantially limiting her ability to work.

Finally, contrary to the district court's conclusion, Deane
has adduced sufficient evidence to create a genuine issue of
material fact as to whether PMC regarded her as
substantially limited in the major life activity of working.
First, there is deposition testimony from PMC officials
documenting confusion as to the extent of Deane's physical
capacity, with regard to pushing, pulling, and lifting. There
is also evidence that PMC fundamentally misunderstood
and exaggerated the limitations that the wrist injury
imposed on Deane. Moreover, PMC's apparent
misunderstanding is in line with other testimony that PMC
did not evaluate Deane, contact her physicians, or

                               11
independently review her medical records, but rather relied
solely on one telephone conversation it had with Deane.

Deane also produced the affidavit and report of Daniel
Rappucci, her vocational expert, who explained the import
of PMC's perception of Deane's injury. Rappucci concluded
that, had Deane been impaired to the extent allegedly
perceived by PMC, she would have been precluded from
consideration for employment, both within her chosen
profession and within a wide range of jobs within her
geographic region. Rappucci further opined that Deane
would have been precluded from performing not only many
of the available jobs in service-producing industries,
(including transportation, wholesale/retail, finance, real
estate, hospitality industries, medical services, and
professional services), which made up 83% of the 41,000
non-agricultural jobs in Deane's county of residence, but
also most of the jobs in the goods-producing industries
(contract construction, mining, and manufacturing), which
comprised the remaining 17% of available positions. PMC
counters with the argument that it attempted to
accommodate Deane by placing her in other light-duty
positions when and if they became available, and that this
suggests that PMC did not believe Deane to be disabled.
PMC submits that its actions indicate only that PMC
considered Deane to be incapable of performing certain
functions that precluded her from returning to nursing.

As the preceding discussion makes clear, however, there
are factual disputes over how impaired PMC regarded
Deane as being compared with her actual level of
impairment, and whether PMC's perception of Deane
constituted a "significant[ ] restrict[ion] in [Deane's] ability
to perform either a class of jobs or a broad range of jobs in
various classes as compared to the average person having
comparable training, skills and abilities." 29 C.F.R.
S 1630.2(j)(3)(i). Deane has thus adduced sufficient evidence
that PMC regarded her as substantially more physically
impaired than she actually was, and that PMC's
misperception, if correct, would satisfy the S 1630.2(j)(3)(i)

                               12
threshold. Therefore, summary judgment on this issue was
inappropriate.8

B.

The second element of Deane's prima facie case under the
ADA requires her to demonstrate that she is a "qualified
individual". The ADA defines this term as an individual
"who, with or without reasonable accommodation, can
perform the essential functions of the employment position
that such individual holds or desires." 42 U.S.C.
S 12111(8). The Interpretive Guidance to the EEOC
Regulations divides this inquiry into two prongs. First, a
court must determine whether the individual satisfies the
requisite skill, experience, education and other job-related
requirements of the employment position that such
individual holds or desires. See 29 C.F.R. pt. 1630, app.
S 1630.2(m). Second, it must determine whether the
individual, with or without reasonable accommodation, can
perform the essential functions of the position held or
sought. See id.; see also Bombard v. Fort Wayne
Newspapers, Inc., 92 F.3d 560, 563 (7th Cir. 1996); Benson
v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir.
1995). Because PMC does not dispute Deane's general
qualifications as a registered nurse, we need not dwell on
the first step of the "qualified individual" analysis.

Determining whether an individual can, with or without
reasonable accommodation, perform the essential functions
of the position held or sought, also a two step process, is
relatively straightforward. First, a court must consider
whether the individual can perform the essential functions
of the job without accommodation. If so, the individual is
qualified (and, a fortiori, is not entitled to accommodation).
If not, then a court must look to whether the individual can
perform the essential functions of the job with a reasonable
_________________________________________________________________

8. In a related vein, PMC seems to suggest that there is no causal
relationship between the alleged misperception and Deane's discharge in
that PMC took Deane's original statement that she could do no lifting
and needed major accommodation at face value. Thus, according to
PMC, Deane was not discharged because of its misperception. But there
is also a genuine issue of fact here as well, see infra Parts II.B.2 and
III.

                               13
accommodation.9 If so, the individual is qualified. If not, the
individual has failed to set out a necessary element of the
prima facie case.
_________________________________________________________________

9. "In general, an accommodation is any change in the work environment
or in the way things are customarily done that enables an individual
with a disability to enjoy equal employment opportunities." 29 C.F.R. pt.
1630, app. S 1630.2(o). The text of the ADA provides that "reasonable
accommodation" may include--

       (A) making existing facilities used by employees readily accessible
       to and usable by individuals with disabilities; and

       (B) job restructuring, part-time or modified work schedules,
       reassignment to vacant position, acquisition or modifications of
       equipment or devices, appropriate adjustment or modifications of
       examinations, training materials or policies, the provision of
       qualified readers or interpreters, and other similar accommodations
       for individuals with disabilities.

42 U.S.C. S 12111(9) (emphasis added).

The EEOC Regulations further define "reasonable accommodation" to
include

       (i) [m]odifications or adjustments to a job application process
that
       enable a qualified applicant with a disability to be considered for
the
       position such applicant desires; or

       (ii) [m]odifications or adjustments to the work environment, or to
       the manner or circumstances under which the position held or
       desired is customarily performed, that enable a qualified
individual
       with a disability to perform the essential functions of that
position;
       or

       (iii) [m]odifications or adjustments that enable a covered entity's
       employee with a disability to enjoy equal benefits and privileges
of
       employment as are enjoyed by its other similarly situated employees
       without disabilities.

29 C.F.R. S 1630.2(o)(1).

An individual's right to reasonable accommodation may be subject,
however, to certain limitations. For example, an employer is not required
to provide accommodation if it would impose an "undue hardship" on the
employer as defined in 29 C.F.R. S 1630.2(p). An employer also is not
required to provide accommodation if the individual poses a "direct
threat" to the health or safety of himself/herself or others unless such
accommodation would either eliminate such risk or reduce it to an
acceptable level. 29 C.F.R. S 1630.2(r).

                               14
The majority panel opinion, in deciding for PMC,
reasoned that to satisfy the first step, a "regarded as"
plaintiff must make a showing that he or she could perform
all the functions of the job (with or without
accommodation), not just its essential functions. PMC
disassociated itself from the panel's position before the en
banc court. As this issue is one of statutory construction,
the "first step in interpreting a statute is to determine
whether the language at issue has a plain and
unambiguous meaning with regard to the particular dispute
in the case." Robinson v. Shell Oil Co., ___ U.S. ___, 117 S.
Ct. 843, 846 (1997).

1.

The ADA prohibits a "covered entity" from discriminating
against a "qualified individual with a disability." 42 U.S.C.
S 12112(a). Section 12111(8), which defines the latter term,
reads:

       The term "qualified individual with a disability" means
       an individual with a disability who, with or without
       reasonable accommodation, can perform the essential
       functions of the employment position that such
       individual holds or desires. For the purposes of this
       subchapter, consideration shall be given to the
       employer's judgment as to what functions of a job are
       essential, and if an employer has prepared a written
       description before advertising or interviewing
       applicants for the job, this description shall be
       considered evidence of the essential functions of the
       job.

Section 12111(8) is plain and unambiguous. The first
sentence of that section, makes it clear that the phrase
"with or without reasonable accommodation" refers directly
to "essential functions". Indeed, there is nothing in the
sentence, other than "essential functions", to which "with
or without reasonable accommodation" could refer.
Moreover, nowhere else in the Act does it state that, to be
a "qualified individual", an individual must prove his or her
ability to perform all of the functions of the job, and
nowhere in the Act does it distinguish between actual or

                               15
perceived disabilities in terms of the threshold showing of
qualifications. Therefore, if an individual can perform the
essential functions of the job without accommodation as to
those functions, regardless of whether the individual can
perform the other functions of the job (with or without
accommodation), that individual is qualified under the ADA.

The history of the ADA confirms this view. In the
committee reports that accompanied the ADA, Congress
spoke directly to the qualifications standard adopted in the
statute. Repeatedly, Congress stated that the qualifications
standard turned on the individual's ability to perform the
"essential functions" of the job. See e.g. , House Labor
Report at 55, reprinted in 1990 U.S.C.C.A.N. at 337; House
Judiciary Report at 32-33, reprinted in 1990 U.S.C.C.A.N.
at 455. Congress explained that the Act focused on an
individual's ability to perform "essential functions" to
ensure that persons with disabilities "not be disqualified
because of the inability to perform non-essential or
marginal functions of the job." House Judiciary Report at
31-32, reprinted in 1990 U.S.C.C.A.N. at 454. As stated in
one committee report, the purpose of the ADA's
qualifications standard is to "ensure that employers can
continue to require that all applicants and employees,
including those with disabilities, are able to perform the
essential functions, i.e., the non-marginal functions of the
job in question." House Labor Report at 55, reprinted in
1990 U.S.C.C.A.N. at 337 (emphasis added).

2.

Having rejected the panel's position that Deane needed to
make a showing that she can perform all of the functions
of her former job, we must now determine whether Deane
has, in fact, adduced sufficient evidence to survive
summary judgment on the question whether she can
perform the essential functions of the job without
accommodation as to those functions. Deane claims that
the heavy lifting she is restricted from doing is not an
essential job function of a nurse. Deane describes nursing
as a profession that focusses primarily on skill, intellect,
and knowledge. While conceding that lifting constitutes part
of a nurse's duties, she submits that it is only a small part.

                               16
In support of her contentions, Deane again offers
Rappucci's affidavit and report. Rappucci opines that
patient care, not heavy lifting of patients, is the essential
function of registered nursing. As evidence, he references
the Department of Labor's Dictionary of Occupational Titles
Job Descriptions ("DOL Dictionary"), which details four
critical tasks of a general duty nurse, none of which
involves heavy lifting: (1) administering medications and
treatments, (2) preparing equipment and aiding physicians
during the treatment of patients, (3) observing patients and
recording significant conditions and reactions to drugs,
treatments, and significant incidents, and (4) taking
temperature, pulse, blood pressure, and other vital signs to
detect deviations from normal and assess the condition of
the patient. Rappucci also notes that nursing is a
professional occupation, and he compares it with orderly
work to exemplify the differences between the two positions.
For example, whereas nursing is classified by the
Department of Labor as skilled, medium duty labor, orderly
work is classified as semi-skilled, heavy-duty labor. Also,
whereas none of a general nurse's critical tasks under the
DOL Dictionary description include lifting, the description
of orderly work enumerates "lift[ing] patients onto and from
bed" as critical task number five. This is because, according
to Deane, the orderly position exists to assist the nurse
professional in the performance of his or her job duties.
Finally, Deane points out that, recognizing the difficulty of
unassisted heavy lifting, PMC uses a team approach to the
lifting of patients, both in routine matters and in
responding to emergency situations.10

PMC responds that lifting is an essential function of a
nurse. In support, PMC cites its job description, which
details under the heading "MAJOR TASKS, DUTIES
AND RESPONSIBILITIES" that one of the "WORKING
CONDITIONS" for a staff registered nurse is the"[f]requent
_________________________________________________________________

10. Rappucci also contends that PMC misdefines the essential functions
of the nurse position (e.g., by including lifting of laundry bags as a
"major task duty and responsibility"). Rappucci argues that this confuses
method with function in that lifting is a method of accomplishing a task,
rather than a specific job function in relation to nursing.

                               17
lifting of patients."11 PMC also notes that Deane conceded
that the PMC job description was "an accurate reflection of
the tasks, duties and responsibilities as well as the
qualifications, physical requirements and working
conditions of a registered nurse at [PMC]," and that among
her "critical job demands" at PMC were: (1) the placement
of patients in water closets, tub chairs or gurneys, (2) the
changing of position of patients, and (3) the lifting of
laundry bags. These pieces of evidence, contends PMC,
constitute multiple admissions by Deane that lifting is an
essential function of a staff registered nurse at PMC.
Finally, PMC asserts that the consequences of a nurse's
inability to lift patients could create a dangerous situation
in the hospital for Deane and her patients.

We decline to apply conclusive effect to either the job
description or PMC's judgment as to whether heavy lifting
is essential to Deane's job. The EEOC's Interpretive
Guidance indicates that "the employer's judgment as to
which functions are essential" and "written job descriptions
prepared before advertising or interviewing applicants" are
two possible types of evidence for determining the essential
functions of a position, but that such evidence is not to be
given greater weight simply because it is included in the
non-exclusive list set out in 29 C.F.R. S 1630.2(n)(3). See 29
C.F.R. pt. 1630, app. S 1630.2(n). Thus, the job description
is not, as PMC contends, incontestable evidence that
unassisted patient lifting is an essential function of Deane's
_________________________________________________________________

11. Rappucci criticizes the job description for utilizing incorrect
language
to describe the lifting requirements. For example, according to the
Department of Labor, "frequent lifting of patients" means that the task
is performed 33% to 66% of the day, or approximately 3-5 hours over an
eight hour work shift. Deane contends that this description is
implausible (and inaccurate) and conflicts with other testimony. For
example, Joan Campagna, a registered staff nurse at PMC since 1987,
swore in her affidavit that a PMC nurse typically spends only minutes
per day repositioning patients in their beds, transferring patients from
bed to gurney or vice versa, and moving patients into and out of
wheelchairs. Moreover, Campagna notes that these tasks are nearly
always accomplished by two people and that PMC employs orderlies,
licensed practical nurses, and nurses aides whose duties are to assist
registered nurses in all patient care activities, including the lifting
and
transferring of patients.

                               18
job. Moreover, the EEOC Regulations also provide that
while "inquiry into the essential functions is not intended to
second guess an employer's business judgment with regard
to production standards," whether a particular function is
essential "is a factual determination that must be made on
a case by case basis [based upon] all relevant evidence." Id.
(emphasis added). Finally, the import of the rest of PMC's
evidence (e.g., her alleged admissions, etc.) is disputed by
Deane. For all these reasons, we find that there is a
genuine issue of material fact on the issue of whether
Deane was a qualified individual under the ADA. 12
_________________________________________________________________

12. In view of this conclusion, we need not reach the more difficult
question addressed by the panel whether "regarded as" disabled
plaintiffs must be accommodated by their employers if they cannot
perform the essential functions of their jobs. Deane contends that, as a
matter of statutory interpretation, "regarded as" plaintiffs are entitled
to
the same reasonable accommodations from their employers as are
actually disabled plaintiffs. She reasons that, just as we found that a
plain reading of the ADA only requires plaintiffs to show that they can
perform the essential functions of the job, a plain reading of the
definition of "qualified individual" demonstrates that a "regarded as"
plaintiff is qualified so long as she can perform the essential functions
with reasonable accommodation. See 42 U.S.C.S 12111(8) (defining a
"qualified individual" as one "who, with or without reasonable
accommodation, can perform the essential functions of the employment
position that such individual holds or desires"); see also 29 C.F.R.
S 1630.2(m). Moreover, Deane submits that this plain reading of the
statute is buttressed by the Supreme Court's decision in Arline, 480 U.S.
at 288-89 (holding that, under the Rehabilitation Act, employers have an
affirmative obligation to make reasonable accommodations for employees
who are perceived to be handicapped). More importantly, according to
Deane, failure to mandate reasonable accommodations for "regarded as"
plaintiffs would undermine the role the ADA plays in ferreting out
disability discrimination in employment. This is because, following
Deane's logic, the "regarded as" prong of the disability definition is
premised upon the reality that the perception of disability, socially
constructed and reinforced, is difficult to destroy, and in most cases,
merely informing the employer of its misperception will not be enough.

In countering Deane's position, PMC notes preliminarily that a
"regarded as" plaintiff 's only disability is the employer's irrational
response to her illusory condition. Under these circumstances, reasons
PMC, it simply makes no sense to talk of accommodations for any
physical impairments because, by definition, the impairments are not
the statutory cause of the plaintiff 's disability. Adopting Deane's

                               19
C.

Finally, we find that Deane can easily establish the third
prong of her prima facie case. The August 10, 1992, call
from Hann terminating Deane because of her "handicap" is
uncontroverted direct evidence that Deane suffered an
adverse employment action because of her employer's
perception of her disability. See Martinson v. Kinney Shoe
Corp., 104 F.3d 683, 686 (4th Cir. 1997) ("When an
employer concededly discharges an employee because of a
disability, the employee need prove nothing more to meet
the third prong of the prima facie test.").
interpretation of the ADA would, in PMC's view: (1) permit healthy
employees to, through litigation (or the threat of litigation) demand
changes in their work environments under the guise of "reasonable
accommodations" for disabilities based upon misperceptions; and (2)
create a windfall for legitimate "regarded as" disabled employees who,
after disabusing their employers of their misperceptions, would
nonetheless be entitled to accommodations that their similarly situated
co-workers are not, for admittedly non-disabling conditions.

While we acknowledge the considerable force of PMC's argument,
especially the latter point, we express no position on the accommodation
issue, and note that the Equal Employment Opportunity Commission
has not taken an official position yet either. See Brief for the Equal
Opportunity Commission as Amicus Curiae at 6. We note, however, that
if it turns out that a "regarded as" plaintiff who cannot perform the
essential functions of her job is not entitled to accommodation (and
therefore does not have to be reinstated), he or she need not necessarily
be without remedy. The plaintiff still might be entitled to injunctive
relief
against future discrimination, see EEOC v. Goodyear Aerospace, 813
F.2d 1539, 1544 (9th Cir. 1987) (listing benefits of injunctive relief,
including: (1) instructing employers to comply with federal law, (2)
subjecting employers to the contempt power of the federal courts for
future violations, and (3) reducing the chilling effect of employers'
alleged
discrimination); King v. Trans World Airlines, Inc., 738 F.2d 255, 259
(8th Cir. 1984), to compensatory or punitive damages under 42 U.S.C.
S 1981a, see Johnson v. Railway Express Agency, Inc., 421 U.S. 454,
459-60 (1975) (punitive damages); Mahone v. Waddle, 564 F.2d 1018 (3d
Cir. 1977) (compensatory damages), and/or to counsel fees under 42
U.S.C. S 1988(b).

                               20
III.

For the foregoing reasons, the judgment of the district
court will be reversed and the case remanded to the district
court for further proceedings consistent with this opinion.
Although not a ground of our decision, we take this
opportunity to observe that this protracted (and very much
ongoing) litigation would likely have been unnecessary had
the parties taken seriously the precepts announced in our
opinion in Mengine v. Runyon, 114 F.3d 415 (3d Cir. 1997).
In that decision, we highlighted the importance of
communication and cooperation between employers and
employees in seeking reasonable accommodations. See id.
at 416. Specifically, we noted that, in the context of the
Rehabilitation Act, "both parties have a duty to assist in the
search for appropriate reasonable accommodation and to
act in good faith."13 Id . at 420. In this case, the single
telephone interaction between Deane and McCool at PMC
hardly satisfies our standard that the employer make
"reasonable efforts to assist [the employee], to communicate
with him in good faith, and to not impede his investigation
[for employment]." Id. (citations omitted). While it may turn
out that reasonable accommodation for Deane is impossible
(or is not required because she is a "regarded as" plaintiff),
nevertheless, an employer who fails to engage in the
interactive process runs a serious risk that it will
erroneously overlook an opportunity to accommodate a
statutorily disabled employee, and thereby violate the ADA.
Id. at 420-21.


_________________________________________________________________
13. As we noted in Mengine, interpretations of the Rehabilitation Act's
"reasonable accommodation" provisions are relevant to our analysis of
the ADA and vice versa because in 1992, Congress amended the section
of the Rehabilitation Act defining "reasonable accommodation" to
incorporate the standards of the ADA. See 114 F.3d at 420 & n.4 (citing
29 U.S.C. S 794(d)).

                               21
GREENBERG, Circuit Judge, dissenting.

I respectfully dissent. I recognize, of course, that a
"qualified individual with a disability" need not actually
have an impairment that substantially limits one or more of
her major life activities as it is sufficient if the employer
regards her as having such an impairment. 42 U.S.C.
S 12102(2)(C). Thus, if a covered employer discriminated
against such an individual in a manner barred by the
Americans with Disabilities Act, it would violate the Act. 42
U.S.C. S 12112(a).

But, as I see this case, the issue here is different. As the
majority has pointed out, the district court found that
Deane was not actually disabled and she has not appealed
that determination. The issue then is whether a person who
is not actually disabled can demand a reasonable
accommodation from an employer. After all it was Deane
who claimed to need the lifting restriction and who claimed
that she had to avoid repetitive manual tasks. To me the
answer has to be no. I cannot understand how an employee
who is not actually disabled can indicate that she must
have an accommodation for her work, and then, when the
employer takes her at her word but declines to grant the
accommodation, assert a valid cause of action against
the employer under the ADA. Congress did not pass the
ADA to permit persons without a disability to demand
accommodations.

It is helpful to consider the following hypothetical. Let us
assume that employees in the heavy construction industry
in the ordinary course of their employment regularly lift
very heavy loads. An applicant for employment who is not
actually disabled indicates to the employer that she cannot
lift heavy loads but requests an accommodation to avoid
the lifting. The prospective employer refuses to make the
accommodation. In my view, the employer does not violate
the ADA, and when Deane's case is analyzed it is not
different. She, too, was not disabled but asked for an
accommodation.

The majority believes that there is a genuine issue of
material fact as to "whether PMC misperceived Deane as
being disabled." Maj. Op. at 3. But that dispute does not

                               22
matter, for the critical issue is not how PMC viewed Deane
because there is simply no escape from the fact that an
essential element of Deane's case is that "PMC failed to
accommodate her lifting restriction." Maj. Op. at 5. After all,
as the majority explains, "Deane maintains that she
requires and is entitled to accommodation for her lifting
restriction." Maj. Op. at 6. But no matter what
misconceptions PMC may have had about Deane, it was
Deane who requested the accommodation. Thus, even if
PMC regarded her as more substantially impaired than she
actually was, this misperception does not matter for she
was not entitled to any accommodation. It is critical to
remember that this is not a case in which the employer
perceived the employee to be disabled and then refused to
make the accommodation which it believed she needed.

The majority indicates that there is a genuine dispute of
material fact regarding whether heavy lifting is an essential
function of her former job. I agree that there is a genuine
dispute of fact as to whether heavy lifting is an essential
function of the job. But, just as the dispute of fact
regarding PMC's perception of Deane does not matter,
neither does the heavy lifting dispute because it is not
material. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242,
248, 106 S.Ct. 2505, 2510 (1986). Inasmuch as Deane
is not actually disabled, she has no right to an
accommodation whether or not the accommodation would
impact on her ability to perform the essential functions of
the job. Furthermore, an employer can determine what it
believes are the essential elements for a particular job
without concern that its determination might be challenged
under the ADA by a person who is not actually disabled.

In my view, this case is quite straightforward but
somehow has become complicated. I respectfully dissent as
I would affirm the summary judgment.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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