

December 13, 1995 UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                            

No. 95-1313

                          ANDRE GRENIER,

                      Plaintiff - Appellant,

                                v.

                     CYANAMID PLASTICS, INC.,

                      Defendant - Appellee.

                                            

                           ERRATA SHEET                                     ERRATA SHEET

     The opinion of this Court issued on November 27, 1995, is
amended as follows:

1.   On page 12, change footnote 3 to read:                           change 

     Both parties refer us to this Guidance although it was
     published after the decision by Cyro to reject Grenier's
     application.  We note that a revised version of the Guidance
     was issued October 10, 1995, after oral argument in this
     case.  See Equal Employment Opportunity Comm'n, Enforcement                                                                          
     Guidance: Pre-Employment Disability-Related Questions and                                                                        
     Medical Examinations (Oct. 10, 1995) (reprinted in EEOC                                                                      
     Compl. Man. (CCH)   6093, at 5371).                          

2.   On page 13, lines 2-3, delete this parenthetical:                                      delete

     (reprinted in EEOC Compl. Man. (CCH)   6903, at 5371, and in                                             
     Americans with Disabilities Act Manual (BNA) No. 29)                                                     

3.   On page 22, end of 6th line from bottom, add "1st Cir." to                                                        add
parenthetical, so that it reads: 

     (1st Cir. 1995)

4.   On page 24, 5th line from bottom, end of parenthetical,
change "at 355" to "at 347-48".          change

5.   On page 25, end of line 4, insert a footnote:                                          insert

     On October 10, 1995, subsequent to oral argument, the EEOC
     issued a new Guidance.  Although neither party has argued
     that we ought to consider this newest guidance, we note that

     the EEOC has revised its interpretation of the ADA and now
     reaches the same conclusion.  Under a section headed "The
     Pre-Offer Stage," the EEOC now explains:

          However, when an employer could reasonably believe that
          an applicant will need reasonable accommodation to
          perform the functions of the job, the employer may ask
          that applicant certain limited questions. 
          Specifically, the employer may ask whether s/he needs                                                                         
          reasonable accommodation and what type of reasonable                                                                        
          accommodation would be needed to perform the functions                                 
          of the job.

     Enforcement Guidance: Pre-Employment Disability-Related                                                                      
     Questions and Medical Examinations (Oct. 10, 1995) (emphasis                                                 
     in original).

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 95-1313

                          ANDRE GRENIER,

                      Plaintiff - Appellant,

                                v.

                     CYANAMID PLASTICS, INC.,

                      Defendant - Appellee.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

           [Hon. D. Brock Hornby, U.S. District Judge]                                                               

                                           

                              Before

                Selya and Boudin, Circuit Judges,                                                          

                   and Saris,* District Judge.                                                       

                                           

     Roderick H. Potter, with whom Potter, Prescott, Jamieson &amp;                                                                         
Nelson was on brief for appellant.                
     Jerrol A. Crouter, with whom Christopher G. Jernigan and                                                                   
Drummond Woodsum &amp; MacMahon were on brief for appellee.                                     

                                           

                        November 27, 1995
                                           

                                                  

*  Of the District of Massachusetts, sitting by designation.

          SARIS,  District  Judge.     Appellant  Andre   Grenier                    SARIS,  District  Judge.                                           

("Grenier") was employed as an electrician for Cyanamid Plastics,

Inc., d/b/a Cyro Industries ("Cyro"), for several years before he

was  placed on  disability leave  due to  psychological problems.

After  his  employment  had  officially  terminated  by automatic

operation  of  the company  disability  policy,  but while  still

receiving disability benefits, Grenier  notified Cyro that he was

an   individual  with   a   disability   who  needed   reasonable

accommodation to return to  work and applied to be  re-hired into

his  previous  position.   Before making  him  a job  offer, Cyro

requested Grenier  to  provide certification  from his  physician

stating   that  he  was  prepared  to   return  to  work  without

restrictions   or   identifying  the   reasonable  accommodations

necessary for him to return  to work.  When Grenier failed  to do

so, his application was rejected.  

          The difficult issue on  appeal is whether Cyro violated

the  Americans  with  Disabilities   Act  ("ADA"),  42  U.S.C.   

12112(d),   which   prohibits   certain   preemployment   medical

examinations and  inquiries of a job applicant.   Concluding that

Cyro did not  violate this provision  of the ADA,  we affirm  the

district court's entry of summary judgment for Cyro.

                    I.  STATEMENT OF THE CASE                              I.  STATEMENT OF THE CASE                                                       

          A.  Facts                    A.  Facts

          Reviewing  the  factual   record  in  the  light   most

favorable to the nonmoving party, as we must at summary judgment,

see Mesnick  v. General Elec.  Co., 950 F.2d  816, 822 (1st  Cir.                                            

                               -2-

1991),  cert. denied, 504 U.S. 985 (1992), we treat the following                              

facts as undisputed.

            1.  The Disability Leave                      1.  The Disability Leave

          Andre Grenier worked as a shift electrician for Cyro at

its  plant in  Sanford,  Maine, from  1980  to 1989.    Grenier's

technical skill as an electrician was good.  In 1989, Grenier and

several other employees were  questioned about vandalism of plant

machinery  that  had  occurred   during  their  shift.    Grenier

responded  to   the  questioning  "in  a   highly  emotional  and

irrational  manner" and  failed to report  to his  next scheduled

shift.   He informed his supervisor, William Kennedy, that he was

afraid to be on a shift without an alibi, and that he was "losing

it."  Stating  that Grenier's behavior  was "very disruptive  and

potentially dangerous," Kennedy placed  Grenier on medical  leave

in November 1989.   This leave was explicitly "until  such a time

when you  can be cleared by  our medical department to  return to

work."   Kennedy  informed Grenier  in writing  that in  order to

return he would have to go through the standard reentry screening

process,  including   permitting  his  doctors   to  discuss  the

specifics of his case with the company doctor.  

          In August 1990, Grenier mailed the first of a series of

letters to  Cyro, including a one-page  letter received September

27, 1990, and a six-page "statement" of April 11, 1991.  In these

letters,  Grenier criticized  the plant  manager Skip  Brogli and

complained that company actions in investigating vandalism at the

plant and placing him  on medical leave had caused  him to suffer

                               -3-

increased  anxiety.   He attacked several  policies of  the plant

that he claimed were  a "constant source of aggravation" to him. 

He also  discussed in detail  various collateral issues,  such as

the criminal charges faced by the son of a Cyro manager, a sexual

harassment  investigation  of  a  fellow  employee,  and  various

transfers of Cyro managers.

          Grenier informed  Cyro in his letters  that his analyst

Dr. Stewart "describes me as  being Narcissistic," but noted that

"I prefer the  word 'proud.'"   He stated that "Dr.  Stewart also

describes me as having  'somewhat paranoid beliefs concerning the

malevolent intent of the (relatively  new) management.'"  He also

noted that "[a]fter a year and a half of being unable to work, my

analyst feels  that it would be  in my best interests  to quit my

job and  find another . .  . that I've become  obsessed with this

Skip guy  [manager Skip Brogli]."  He stated repeatedly, however,

that he refused to quit his job.

          "As a final  note," wrote Grenier in one  letter, dated

April 11, 1991, "I want to point that [sic], although Dr. Stewart

is indicating  that he feels  that I  am not totally  disabled, I

still  feel convinced that I am."  Grenier realized his statement

had "some  strong elements of  paranoia," but  claimed that  "the

paranoia is not  just my own .  . . it has  become fairly rampant

throughout the workforce."  And:

          The   continuing   incidents  of   vandalism,
          recently,   should  be  a   clear  signal  to
          Corporate headquarters  that Cyro Industries,
          in  Sanford, Me.  is still  more than  just a
          little bit sick.

                               -4-

          There is  still some  hope, however,  if only
          the right  steps are  taken.  And  unless the
          right steps are taken, somebody else is going
          to be hurt, maybe even killed.  Of that, I am
          sure.

          Grenier would not voluntarily terminate his employment.

He  remained on indefinite  disability leave until  May 12, 1991,

when his  employment at Cyro terminated automatically as a result

of  the  expiration  of his  continuous  service  credits.   Cyro

informed Grenier of his termination by letter May 15, 1991.

          Grenier received  disability benefits  from Cyro  for a

two-year period ending  December 31, 1992.   Under the  company's

plan, benefits were  payable for up to  two years if Grenier  was

under  the regular  care of  a licensed  physician and  unable to

perform the duties of  his specific job, but benefits  would have

continued beyond  this period  only if the  Disability Department

determined that his medical condition prevented him "from working

at any job for  which [he was] reasonably qualified  to perform."

On December 4, 1992, the Cyro disability department wrote Grenier

that based  on information  received from an  independent medical

examination of July 30, 1992, he  was not disabled to this extent

and, therefore, no benefits were payable after January 1, 1993.

            2.  Application for Re-Employment                      2.  Application for Re-Employment

          In  a letter dated December  18, 1992, and addressed to

Robert Lysaght,  the Personnel Operations Manager  at the Sanford

plant, Grenier asked to be considered an applicant for the job of

shift  electrician,  his  former  position.   Grenier  was  still

receiving  disability benefits  at this  time.   In  this letter,

                               -5-

which   was   under   the   heading   "request   for   employment

accommodation," Grenier stated:

          I qualify as an individual  with a disability
          as defined  by Federal and State Civil Rights
          laws.

          I   understand   that   CYRO  Industries   is
          conducting  interviews  for  the position  of
          shift mechanic in the  electrical department.
          The  purpose  of this  letter  is  to request
          accommodation to return to  work in the  same
          capacity   as  I   had  been   working  since
          September of 1980.

                              . . .

          I  believe  that  I  should be  afforded  the
          opportunity to  be accommodated to  return to
          my  job,  at  the  very least,  for  a  trial
          period, to prove that I am able to perform my
          job.

          I    believe     that,    under    reasonable
          circumstances, I should be able to perform in
          a safe and reliable manner.

          In response, Lysaght told Grenier in a January 5, 1993,

letter that  "CYRO is  not currently accepting  applications" but

that  the Maine unemployment  office would be  notified when Cyro

was soliciting applications.  In reality, a job notice was posted

on  January  4,  1993  --  subsequent  to  Grenier's  request for

consideration as an applicant, but prior to the date of Lysaght's

response.  Lysaght requested in his letter:

          Since  your termination of employment came as
          a  result  of  the expiration  of  Continuous
          Service Credits while you were on an extended
          medical leave, CYRO would  reasonably request
          that you provide us with certification from a
          physician that  you are prepared to return to
          work without restrictions or  identifying any
          accommodations that  are required for  you to
          return to  work at the Sanford  location.  Of
          course,    any   requests    for   employment

                               -6-

          accommodation will be considered  with regard
          to  the reasonableness  at  the time  of  the
          employment interview process.

          Therefore, in order  to return  to work  with
          CYRO  Industries you  need 1)  keep  in touch
          with the Maine Unemployment office in Sanford
          to  learn when  CYRO is  accepting employment
          applications;   2)  complete   an  employment
          application for a position  for which you are
          qualified;  and 3)  provide CYRO  with notice
          from your physician that you  are prepared to
          return  to  work   without  restrictions   or
          identifying  those reasonable  accommodations
          that may be necessary.

          By letter  of January  15, 1993, Grenier  forwarded his

therapist's certification  that he was disabled  and requested to

discuss accommodation with Cyro Vice President William Loman.  He

also  maintained that  his employment  had never  terminated, and

argued that the  May 15,  1991, letter that  informed him of  the

termination "simply implies that my employment is terminated."

          Cyro's New Jersey-based Personnel Director Thomas Ayres

responded  by letter of January 25th by informing Grenier that he

must follow the steps outlined in Lysaght's January 5th letter in

order to be considered for employment.

          Additional  correspondence  ensued.   Grenier  asserted

that he was "capable of performing the essential functions of the

job  with or without accommodation" but failed to describe how he

would perform and refused to provide medical documentation.  Cyro

continued to request the documentation.

          On February 22, 1993, Cyro mailed Grenier an employment

application,  which  Grenier promptly  returned.    By letter  of

March 15,  1993,   Cyro   rejected  Grenier's   application   for

                               -7-

employment, stating that, "[a]fter careful review of all relevant

information,   your  request  for   employment  consideration  is

denied."  

          B.  Proceedings Below                    B.  Proceedings Below

          Grenier filed a two-count  complaint in the District of

Maine  on June 23, 1994, claiming  that Cyro violated the ADA and

the  Maine Human  Rights Act, 5  M.R.S.A.    4551 et  seq.1  Cyro                                                                    

filed a motion  for summary  judgment on the  issue of  pre-offer

inquiries, and  Grenier opposed the  motion on the  same grounds.

The District Court  entered summary judgment  for Cyro.   Grenier

argues on appeal  that Cyro's pre-offer inquiry  violated the ADA

and that there are  genuine issues of material fact  with respect

to  his  claim  that  Cyro's  failure  to  hire  him  constituted

intentional discrimination.

                          II.  ANALYSIS                                    II.  ANALYSIS                                                 

          A.  Standard of Review                    A.  Standard of Review

          This  court  reviews  the  district  court's  grant  of

summary  judgment de  novo.   The  standard  of review  has  been                                    

clearly articulated by this court as follows:

          Since  appellate review of a grant of summary
          judgment  is plenary,  the court  of appeals,
          like  the  district  court,  "must  view  the
          entire record in the light most hospitable to
          the   party    opposing   summary   judgment,
          indulging all reasonable  inferences in  that
          party's favor."   An  appellate panel  is not
          restricted to the district  court's reasoning
          but  can  affirm a  summary  judgment  on any
          independently sufficient ground.  In the end,
                                                  

1  As the parties acknowledge that federal law controls
construction of the state claim, we do not discuss it separately.

                               -8-

          the entry  of summary judgment can  be upheld
          only if "the pleadings,  depositions, answers
          to interrogatories, and  admissions on  file,
          together  with the  affidavits, if  any, show
          that  there is  no  genuine issue  as to  any
          material fact  and that  the moving party  is
          entitled to a judgment as a matter of law.

Mesnick v. General  Elec. Co., 950 F.2d 816, 822  (1st Cir. 1991)                                       

(citations omitted), cert. denied, 504 U.S. 985 (1992).                                           

          B.  Statutory Framework                    B.  Statutory Framework

          A  close  analysis  of  the  statutory  and  regulatory

framework is  essential to  determine the  employer's obligations

under the  ADA when  dealing with the  known disability of  a job

applicant.

            1.  The Statute                        1.  The Statute  

          The ADA, 42  U.S.C.    12101 et seq.,  was enacted  "to                                                        

provide  a  clear  and  comprehensive national  mandate  for  the

elimination   of   discrimination   against    individuals   with

disabilities."   42  U.S.C.     12101(b).    In  the  context  of

employment, the ADA provides:

          (a)  General rule.   No covered  entity shall                         General rule.
          discriminate  against a  qualified individual
          with a disability  because of the  disability
          of   such  individual   in   regard  to   job
          application    procedures,     the    hiring,
          advancement,   or  discharge   of  employees,
          employee  compensation,   job  training,  and
          other  terms,  conditions, and  privileges of
          employment.

42 U.S.C.   12112(a).

          With regard to medical examinations  and inquiries, the

ADA  sets  up  separate  rules for  pre-offer  job  applications,

  12112(d)(2);     post-offer    pre-employment     examinations,

                               -9-

  12112(d)(3); and inquiries of current employees,   12112(d)(4).

Section 12112(d) provides as follows:

          (d)  Medical examinations and inquiries. 
            (1)  In   general.       The   prohibition    against
                 discrimination  as  referred to  in [  12112(a)]
                 shall    include   medical    examinations   and
                 inquiries.

            (2)  Preemployment.

                 (A)  Prohibited examination or inquiry.   Except
                      as  provided in  paragraph  (3), a  covered
                      entity   shall   not   conduct  a   medical
                      examination  or make  inquiries  of  a  job
                      applicant as  to whether such  applicant is
                      an  individual with  a disability or  as to
                      the nature or severity of such disability.

                 (B)  Acceptable  inquiry.  A  covered entity may
                      make   preemployment  inquiries   into  the
                      ability  of an  applicant  to perform  job-
                      related functions.

Pursuant to  paragraph (3),  an employer  may "require  a medical

examination after  an offer of employment has  been made to a job

applicant and prior to the commencement of employment duties, and

may  condition  an offer  of employment  on  the results  of such

examination" only  in certain circumstances.2   Once an applicant

                                                  

2  This section provides in relevant part:

            (3)  Employment  entrance  examination.    A  covered
                 entity may  require a medical  examination after
                 an  offer of employment  has been made  to a job
                 applicant  and  prior  to  the  commencement  of
                 employment  duties of  such  applicant, and  may
                 condition an offer of  employment on the results
                 of such examination, 
                 if --

                 (A)  all  entering  employees  are subjected  to
                      such    an   examination    regardless   of
                      disability;

                               -10-

becomes an  employee, an employer is prohibited  from requiring a

medical  examination or  making inquiries  of an  employee as  to

whether he  is  an "individual  with a  disability or  as to  the

nature  or severity of the  disability unless such examination or

inquiry is shown to be  job-related and consistent with  business

necessity."    12112(d)(4).  An employer may make "inquiries into

the  ability of an employee to perform job-related functions."   

12112(d)(4)(B).

            2.  The Regulations                      2.  The Regulations

          The  regulations adopted  under  the ADA  by the  Equal

Employment  Opportunity  Commission  ("EEOC")  provide   that  an

employer may  make "pre-employment inquiries into  the ability of

an applicant to  perform job-related functions, and/or may ask an

applicant to  describe  or to  demonstrate how,  with or  without

reasonable accommodation,  the applicant will be  able to perform

job-related  functions."    29 C.F.R.     1630.14(a).   The  EEOC

crafted    1630.14(a)  in response  to  comments on  the proposed

regulation from employers asking "whether an employer may ask how

an individual  will perform a job function  when the individual's

known disability appears to interfere with or prevent performance

of job-related functions."  56 Fed. Reg. 35725, 35732 (1991).

          The EEOC published  as an appendix to the regulations a

section-by-section  "Interpretive  Guidance  on Title  I  of  the
                                                  

                 (B)  information obtained [is kept confidential,
                      with limited exceptions]; and

                 (C)  the  results of  such examination  are used
                      only in accordance with this subchapter.

                               -11-

Americans with Disabilities  Act."  29 C.F.R. Pt.  1630, App.  We

have looked to this source in interpreting the ADA.  See Carparts                                                                           

Distrib. Ctr., Inc. v. Automobile Wholesaler's Ass'n, 37 F.3d 12,                                                              

16  (1st Cir. 1994).   Such administrative interpretations of the

Act by  the  enforcing agency,  "while not  controlling upon  the

courts  by reason  of their  authority, do  constitute a  body of

experience and  informed judgment  to which courts  and litigants

may properly resort  for guidance."   Meritor Sav.  Bank, FSB  v.                                                                       

Vinson, 477 U.S. 57, 65 (1986).                

          The  EEOC  explains  the  regulation     1630.14(a)  as

follows:

          An  employer may  also  ask an  applicant  to
          describe  or  to  demonstrate  how,  with  or
          without    reasonable    accommodation,   the
          applicant will be able to perform job-related
          functions.  Such a request may be made of all
          applicants   in   the   same   job   category
          regardless of disability.  Such a request may
          also  be made  of  an applicant  whose  known
          disability  may interfere with or prevent the
          performance   of   a  job-related   function,
          whether  or not the  employer routinely makes
          such a  request of all applicants  in the job
          category.   For example,  an employer may ask
          an individual with one  leg who applies for a
          position  as a home washing machine repairman
          to  demonstrate or  to explain  how, with  or
          without  accommodation, he  would be  able to
          transport  himself and  his  tools  down  the
          basement stairs.   However, the  employer may
          not inquire  as to the nature  or severity of
          the  disability.  Therefore, for example, the
          employer cannot  ask how the  individual lost
          the  leg or whether  the loss  of the  leg is
          indicative of an underlying impairment.

            3.  The Guidance                      3.  The Guidance

                               -12-

          An  EEOC Enforcement  Guidance,  dated  May 19,  1994,3

further aids our interpretation of the rules concerning pre-offer

inquiries  of  applicants with  known  disabilities.   See  Equal                                                                    

Employment    Opportunity     Comm'n,    Enforcement    Guidance:                                                                           

Preemployment    Disability-Related    Inquiries   and    Medical                                                                           

Examinations Under  the Americans  with Disabilities Act  of 1990                                                                           

(EEOC Notice 915.002) (May 19, 1994) [hereinafter Guidance].  The                                                                    

Guidance  was designed  "for interim  use by  EEOC investigators,

pending coordination  with other  federal agencies."   Id., Exec.                                                                    

Summ.  It is not binding  law, but as a detailed analysis of  the

relevant  ADA  provisions,  it  aids our  interpretation  of  the

statute.

          In  a  section   entitled  "When  the   Employer  Could

Reasonably  Believe  that  Known Disability  Will  Interfere With

Performance of Job Related Functions," the Guidance provides:  

          When  an  employer  could reasonably  believe
          that  an  applicant's  known disability  will
          interfere  with  the  performance  of  a job-
          related function, the  employer may ask  that
          particular    applicant   to    describe   or
          demonstrate  how  s/he   would  perform   the
          function,   with    or   without   reasonable
          accommodation.    Such inquiries  or requests
          are not prohibited pre-offer inquiries.

                                                  

3   Both  parties  refer us  to  this  Guidance although  it  was
published  after  the  decision   by  Cyro  to  reject  Grenier's
application.   We note that a revised version of the Guidance was
issued  October 10, 1995, after oral argument  in this case.  See                                                                           
Equal  Employment Opportunity Comm'n,  Enforcement Guidance: Pre-                                                                           
Employment Disability-Related Questions and  Medical Examinations                                                                           
(Oct. 10,  1995) (reprinted in EEOC Compl.  Man. (CCH)   6093, at                                                          
5371).

                               -13-

          Example 5:   R may ask an  applicant with one                             
          leg  who applies  for  a job  as a  telephone
          linesperson  to  describe or  demonstrate how
          she  would  perform the  duties  of the  job,
          because R may  reasonably believe that having
          one leg  interferes with the ability to climb
          telephone poles.

          In some  cases, an applicant may  not have an
          obvious   disability,  but   may  voluntarily
          disclose  that s/he  has a  hidden disability
          that  would  reasonably  appear to  interfere
          with performance of  a job-related  function.
          In  such  cases,  the  employer  may ask  the
          applicant   to    describe   or   demonstrate
          performance,   with  or   without  reasonable
          accommodation.    Such inquiries  or requests
          are not prohibited pre-offer inquiries.

          Example  6:   An  applicant  for  the job  of                              
          repairing underground sewer lines voluntarily
          discloses that she has severe claustrophobia.
          R  may  reasonably   determine  that   severe
          claustrophobia   would   interfere  with   an
          employee's   ability   to  work   within  the
          confined space of  an underground  sewer.   R
          may  therefore ask the  applicant to describe
          or demonstrate how she would perform the job,
          with or without reasonable accommodation.

Guidance   IV.B.5.b.                  

          The EEOC explains  that allowing an employer to  ask an

applicant with a known disability  to describe or demonstrate how

he  would perform a job-related  function "is in  the interest of

both applicants and employers."  Id. at n.23.                                              

          Employers  are entitled  to  know whether  an
          applicant  with   an  apparently  interfering
          disability can perform job-related functions,
          with or without reasonable accommodation.  It
          is in the interest  of an applicant with such
          a  disability  to  describe   or  demonstrate
          performance in  order to dispel  notions that
          s/he is unable to  perform the job because of
          the disability.

Id.             

                               -14-

          In a  section entitled  "Inquiries Concerning  Need for

Accommodation and  Requests for  Documentation if  Applicant Asks

for Accommodation,"  the Guidance permits an  employer during the

hiring process to require an applicant "to inform the employer of

any reasonable  accommodation needed"  to take an  "interview" or

perform a "job demonstration."  Id.   IV.B.6.a.   With respect to                                             

accommodations for the job, as opposed  to accommodations for the

hiring process, the Guidance explains:

          An employer may ask an applicant whether s/he
          can  perform specified  job-related functions
          with  or  without  reasonable  accommodation,
          because  these  inquiries elicit  information
          about  an applicant's ability  to perform job                                                 
          functions,    not   information    about   an
          applicant's disability.  An employer also may
          ask an applicant to describe  or demonstrate,
          at   the  pre-offer  stage,  how  s/he  would
          perform   job-related   functions,  with   or
          without  reasonable   accommodation,  because
          these inquiries elicit  information about  an
          applicant's ability, not information about an                                       
          applicant's disability. . . .

          However, at the  pre-offer stage, an employer
          may   not   generally  inquire   whether  the
          applicant needs  reasonable accommodation for
          the job.   For  example, an employer  may not
          make  inquiries  such  as,  "Would  you  need
          reasonable  accommodation in  this job?"   or
          "Would you need  reasonable accommodation  to
          perform  this  specific   function?"     Such
          inquiries  are  likely to  elicit information
          about the existence  of a disability because,
          generally,   only   an   individual  with   a
          disability  would  require an  accommodation.
          Therefore, these inquiries are  prohibited at
          the pre-offer stage.  

          If  an  applicant  has voluntarily  disclosed
          that   s/he   would    need   a    reasonable
          accommodation   to   perform  the   job,  the
          employer still may not  make inquiries at the
          pre-offer  stage about  the type  of required                                                    
          reasonable  accommodation  (except where  the

                               -15-

          applicant     has     requested    reasonable
          accommodation as part of a required pre-offer
          job demonstration, as described above).  

Id.   IV.B.6.a (emphasis in original).             

          When an applicant requests reasonable accommodation, an

employer  may   request   "documentation  from   an   appropriate

professional (e.g.,  a doctor, rehabilitation  counsellor, etc.),

stating  that s/he  has  a  disability."   Id.    IV.B.6.b.    An                                                        

employer  may also  require  documentation as  to an  applicant's

functional  limitations "for  which  reasonable accommodation  is

requested (and which flow from the  disability.)"  Id.  The  EEOC                                                                

reasoned   that  such  requests   are  not  prohibited  pre-offer

inquiries because:

          Requesting  such documentation  is consistent
          with  the  ADA's  legislative history.    For
          example,  Congress  specifically  anticipated
          that  when  an applicant  requests reasonable
          accommodation for the application process (or
          when   an    employee   requests   reasonable
          accommodation  for  the  job),  the  employer                                                                 
          should engage in  an interactive process with                                                                 
          the  individual  to  determine  an  effective                                                                 
          reasonable accommodation.                                            

Id. (emphasis added).   As  an example, the  EEOC stated that  an             

employer  may at  the  pre-offer stage  require  an applicant  to

obtain documentation from a  professional stating she cannot lift

a certain amount and needs reasonable accommodation.  Id.                                                                    

          C.  The Pre-Offer Inquiry                    C.  The Pre-Offer Inquiry

          With this statutory  and regulatory framework  in mind,

we turn to Grenier's  claim that Cyro's requirement of  a medical

certification violates ADA   12112(d).

            1.  Getting Along                      1.  Getting Along

                               -16-

          First, Grenier  argues that  Cyro's letter  requiring a

medical  certification  constituted   an  impermissible   inquiry

because  the request was not  for information about  how he would

perform  the job-related functions.   Rather than ask "whether he

possessed  the requisite  skills  to perform  the electrical  and

electronic  tasks called  for  in the  job description,"  Grenier

complains, "Cyro assumed that his ability  to perform job related

functions was  called  into question  by  his history  of  mental

illness."  Grenier argues that Cyro already had knowledge that he

was able to do the essential job-related functions because he had

worked there for nine years and was "technically qualified."

          Grenier   incorrectly   assumes   that  the   essential

functions of the  job of shift electrician require only technical

ability  and experience as  an electrician.   "The term essential

functions  means the  fundamental  job duties  of the  employment

position  the individual with a disability holds or desires."  29

C.F.R.   1630.2(n)(1).   Technical skills and  experience are not

the only essential  requirements of  a job.   See Pesterfield  v.                                                                       

Tennessee Valley Auth., 941 F.2d 437, 441-42 (6th Cir. 1991) ("at                                

least the ability  to get along with  supervisors and co-workers"

was essential function of job as tool room attendant); Mancini v.                                                                        

General  Electric  Co.,  820 F.  Supp.  141,  147  (D. Vt.  1993)                                

("ability to  follow  the orders  of  superiors is  an  essential

function of any position");  Pickard v. Widnall, 1994 WL  851282,                                                         

*9  (S.D.  Ohio,  Dec. 15,  1994) (No.  C-3-94-40)  ("mental  and

emotional  stability" was  essential  job function  for  military

                               -17-

position); Johnston v. Morrison, 849 F. Supp. 777, 778 (N.D. Ala.                                         

1994)  (waitress who was unable to handle pressures of working on

crowded nights or memorizing frequent menu changes was  unable to

perform essential functions of job); cf. Bento v. I.T.O. Corp. of                                                                           

Rhode Island, 599 F.  Supp. 731,  742-43 (D.R.I.  1984) (although                      

there is "no question that plaintiff . . . is qualified to do the

job, at  least in the sense of knowing how  to perform it," he is

not necessarily  "otherwise qualified" within the  meaning of the

Rehabilitation Act).

          More specifically, an  employer may reasonably  believe

that an employee known to have a paranoia about the plant manager

is not  able to  perform his  job.  Cf.  Voytek v.  University of                                                                           

California,  1994 WL 478805, *15, 6 A.D.D. 1137, 1161 (N.D. Cal.,                    

Aug.  25, 1994) (No.  C-9203465 EFL)  (holding that  employee was

legally denied re-employment after  period of disability where he

"could not continue to perform all of the tasks assigned to him,"

due in part to "the ongoing conflict with his supervisor").

          The ADA does  not require an employer  to wear blinders

to  a known  disability at  the pre-offer  stage, but  permits an

"interactive   process"  beneficial  to  both  the  employer  and

applicant.  The EEOC regulations recognize this by providing that

an  employer  can ask  an applicant  with  a known  disability to

describe  or   demonstrate  how   "with  or   without  reasonable

accommodation" the  applicant will  be able  to do  the job.   29

C.F.R.   1630.14(a).  Here, Cyro knew that the applicant had just

recently been  unable to perform  his specific job  at Cyro as  a

                               -18-

result  of a mental disability  for which he  was still receiving

benefits from Cyro and undergoing psychiatric treatment.  Indeed,

Grenier  himself  had  claimed   he  was  totally  disabled  from

performing  any work,  not just  his specific job  at Cyro.   Cf.                                                                           

August v. Offices Unlimited, Inc., 981 F.2d 576, 581-82 (1st Cir.                                           

1982)  (man who  had  asserted on  insurance  forms that  he  was

"totally disabled"  and had presented no  contrary evidence could

not  be   found  to  be  "qualified   handicapped  person"  under

Massachusetts  anti-discrimination  statute,  Mass. Gen.  L.  ch.

151B); Reigel v. Kaiser Found. Health Plan, 859 F. Supp. 963, 969                                                    

(E.D.N.C. 1994)  (woman who  certified to her  disability insurer

that  she could not perform  her job was  estopped from asserting

that  during the  same  time period  she  had been  qualified  to

perform for purposes of the ADA).  We hold that this employer did

not  violate the  prohibition  in    12112(d)  by inquiring  into

Grenier's ability to function effectively in the workplace and to

get  along with his  co-workers and supervisor,  rather than just

his technical qualifications as an electrician.4

            2.  The Medical Certification                        2.  The Medical Certification  

                                                  

4  We note that the inquiry made by Cyro would not necessarily be
permissible under  different  circumstances, such  as  where  the
employer  was  less familiar  with the  nature  or extent  of the
applicant's disability, or  with the effect of  the disability on
job performance.    As the  EEOC  recognized when  preparing  the
Guidance,  "there  are sometimes  subtle  distinctions between  a
permissible  and a  prohibited  pre-offer inquiry."   Guidance                                                                           
IV.B.6.b.  See generally  Paul  F. Mickey, Jr. &amp; Maryelena Pardo,                                  
Dealing with Mental Disabilities  Under the ADA, 9 Lab.  Law. 531                                                         
(1993);  Janet  L. Hamilton,  New  Protections  for Persons  with                                                                           
Mental  Illness  in  the   Workplace  under  the  Americans  with                                                                           
Disabilities Act of 1990, 40 Clev. St. L. Rev. 63, 92 (1992).                                  

                               -19-

          Next Grenier argues  that Cyro's pre-offer  requirement

of a medical certification is  an illegal pre-offer inquiry under

the ADA because the regulations  "do not by their terms permit  a

request  to  someone other  than  the applicant  at  the preoffer

stage."

          As a  preliminary matter, we address  whether a request

for medical  certification constitutes a "medical examination" or

whether  it  is  instead an  "inquiry."    The  ADA prohibits  an

employer from conducting any pre-offer "medical examination" of a

job  applicant.      12112(d)(2).   This  prohibition  applies to

psychological examinations.   See Guidance at n.  47 (citing H.R.                                                    

Rep. No. 485 (Pt. 3), 101st Cong., 2d Sess. 46 (1990),  reprinted                                                                           

in  1990 U.S.C.C.A.N. vol. 4, Legis. Hist.,  445, 469).  The EEOC            

defined "medical examination" as follows:

          Medical examinations are procedures  or tests
          that  seek  information about  the existence,
          nature,  or  severity   of  an   individual's
          physical or  mental impairment, or  that seek
          information    regarding   an    individual's
          physical or psychological health.

Guidance   V.A.  We conclude that a certification from a treating                  

psychiatrist that does not necessitate new tests or procedures is

best  analyzed  as  an  "inquiry"  rather   than  as  a  "medical

examination."

          Also,  contrary   to  Grenier's  assertion,   the  EEOC

interprets the ADA to allow certain inquiries of third parties at

the pre-offer stage.  With respect to "inquiries to third parties

regarding  an   applicant's  medical  condition,"   the  Guidance

provides  that "[a]t the pre-offer stage", an employer can "ask a

                               -20-

third  party (e.g., a reference)  anything that it  could ask the                            

applicant  directly."   Guidance    IV.B.15.   Further, the  EEOC                                          

finds that requests for  documentation from health care providers

to  confirm the existence of  a disability are permissible where,

as  here,  requests  for  reasonable accommodation  are  made  in

connection  with the  hiring  process or  job.   See  Guidance                                                                           

IV.B.6.b.    We conclude  that an  employer  may request  that an

applicant provide  medical certification from doctors  of ability

to perform so long as the inquiry does not otherwise run afoul of

  12112(d)(2)(A).

          The  primary thrust  of Grenier's  appeal is  that this

inquiry -- the requirement of medical certification of ability to

perform from  a former  disabled employee  applying to return  to

work  with the same employer -- violates   12112(d)(2)(A) in that

it  constitutes an inquiry of a "job applicant as to whether such

applicant is an individual with a  disability or as to the nature

or severity of such disability."

          The Eighth Circuit recently addressed a similar factual

situation in Brumley v. Pena, 62 F.3d 277 (8th Cir. 1995), a case                                      

decided   under   the   Rehabilitation   Act,    and   applicable

regulations.5   Brumley was  a mentally disabled  former employee
                                                  

5    The  ADA  extended  to  the  private  sector  the  essential
substantive  provisions of  the  Rehabilitation Act  of 1973,  29
U.S.C.    791-794.   See Chai  R. Feldblum, Medical  Examinations                                                                           
and Inquiries under the  Americans with Disabilities Act: A  View                                                                           
from the Inside, 64 Temple L.  Rev. 521, 521-22 (1991).  Congress                         
intended that  Rehabilitation Act precedent be  considered by the
courts in interpreting  the ADA.   See 42 U.S.C.    12201(a); see                                                                           
also Ennis  v. National  Ass'n of Business  &amp; Educational  Radio,                                                                           
Inc., 53 F.3d 55, 57 (4th Cir. 1995) ("To the extent possible, we              

                               -21-

of  the  Federal  Aviation   Administration  ("FAA")  who  sought

priority  consideration  for  restoration  to  federal employment

pursuant  to 5  U.S.C.    8151,  which  predicated the  level  of

priority for  re-employment on  the extent  of recovery from  the

disability.    He  challenged  the  agency's  demand for  a  pre-

employment examination by a  psychiatrist to determine whether he

was fully or  only partially recovered  from his severe  reactive

depression.  Id.  at 279.  In questioning the  application of the                          

regulations, the  court noted  that "[t]he  dilemma here  is that

Brumley is not an outside job applicant seeking employment at the

FAA for the first  time."  Id.  "Rather, he is a recipient of . .                                        

.  disability  payments  who  is  seeking  to  exercise  his  re-

employment rights with  the FAA pursuant  to [5 U.S.C.    8151]."

Id.  The court concluded that the employer  "retains the right to             

require  that  [the  former   employee's]  medical  condition  be

verified in order to determine his re-employment rights."  Id. at                                                                        

279.  

          As  in  Brumley,  this  Court  faces  the  quandary  of                                   

determining the appropriate parameters  of a pre-offer inquiry of

a former employee who is the recipient of disability benefits and

now seeks re-employment.  Cyro argues that an employer should not

be forced to  have "amnesia"  with respect to  a former  employee

where  it  is  well aware  of  the nature  and  severity  of that
                                                  

adjudicate  ADA  claims in  a  manner  consistent with  decisions
interpreting the Rehabilitation Act.").  Specifically,  the ADA's
statutory provisions  on medical examinations and  inquiries were
drawn from  Rehabilitation  Act regulations.    See 29  C.F.R.                                                                
1614.203(e) (formerly   1614.706); 45 C.F.R.   84.14.

                               -22-

employee's disability because it  had previously received medical

information  that  formed  the  basis for  its  determination  of

eligibility for  disability benefits.  Rather,  it urges, Grenier

should  be  treated  as   an  existing  employee  returning  from

disability leave, in  which case  the employer would  be able  to

demand medical certification of  ability to return to work.   See                                                                           

42 U.S.C.   12112(d)(4)  (ADA provisions for medical examinations

of  existing employees);  Hogan v. Bangor and Aroostook R.R. Co.,                                                                          

61  F.3d 1034,  1036 (1st  Cir. 1995)  (employee was  entitled to

reinstatement after  suffering collapsed lung as  soon as medical

evidence indicated he  was fit to return);  Pesterfield, 941 F.2d                                                                 

at 438  (employee who was hospitalized  for psychiatric treatment

was required to  provide medical certification  as to ability  to

return  to work);  Derbis v.  United States  Shoe Corp.,  1994 WL                                                                 

631155, *5, 6 A.D.D. 1071, 1075,  3 A.D. Cas. 1029, 1030, 65 Fair

Empl. Prac. Cas. (BNA) 1328 (D.  Md., Sept. 7, 1994) (No. MJG-93-

130)  (where plaintiff  on disability  leave presented  a medical

report which indicated the employee could return to work but only

with   some  accommodation,  employer  could  require  sufficient

information  to  allow it  to  consider  any possible  reasonable

accommodation),   aff'd  in   part  and   remanded   for  further                                                                           

proceedings, 67 F.3d 294 (4th Cir. 1995)  (table).  We agree that                     

this  case is  similar  to that  of  an employee  returning  from

disability  leave.  It appears that neither Congress nor the EEOC

took  into  account  the  case  of   a  returning  employee  when

formulating the restrictions on pre-offer inquiries.  Here, as in

                               -23-

the case of the returning employee, the employer must be able  to

assess the extent  of the applicant's recovery  from inability to

perform.  Further, if accommodations are necessary to  enable job

performance,  the  employer, who  is  already  familiar with  the

disability, must learn of those  accommodations in order to  have

any realistic chance of assessing ability to perform.

          Grenier  contends that  the ADA  as interpreted  in the

Guidance  prohibits an  employer's requirement  that a  physician

identify the  type of  reasonable accommodations required  for an                               

employee  to  return to  work.    The Guidance  states:   "If  an

applicant  has  voluntarily  disclosed  that s/he  would  need  a

reasonable accommodation  to perform the job,  the employer still

may  not make inquiries at the pre-offer  stage about the type of                                                                        

required reasonable accommodation."  Guidance   IV.B.6.a.                                                        

          We conclude  that the ADA does not preclude an employer

from  asking an  applicant with  a known  disability who  seeks a                                                  

reasonable accommodation to specify  the type of accommodation he

seeks.  As the District Court pointed out, the Guidance prohibits

pre-offer inquiry into  the type of  accommodation because it  is

"likely  to elicit information about the nature and severity of a

disability."   Guidance   IV.B.6.a.   The central  purpose of the                                 

prohibition on pre-offer inquiries generally is to ensure that an

applicant's  hidden disability  remains  hidden.   See H.R.  Rep.                                                                

No. 485 (Pt. 2), 101st  Cong., 2d Sess., at 73, reprinted in 1990                                                                      

U.S.C.C.A.N.  vol. 4,  Legis. Hist.,  303, 355  ("The legislation

prohibits  any  identification  of  a disability  by  inquiry  or

                               -24-

examination  at the  pre-offer stage.");  Guidance    IV.A ("This                                                            

prohibition  is to  ensure  that an  applicant's possible  hidden

disability  (including  prior history  of  a  disability) is  not

considered  by  the employer  prior  to  the  assessment  of  the

applicant's non-medical qualifications.").

          With  respect  to   known  disabilities,  however,  the

emphasis  is  on  encouraging  the  employer  to  "engage  in  an

interactive process with the individual to determine an effective

reasonable accommodation."  Guidance   IV.B.6.b (citing H.R. Rep.                                              

No. 485 (Pt.  2), supra, at 65-66, U.S.C.C.A.N. at 347-48).  That                                 

is why the EEOC allows an employer to ask an applicant with known

claustrophobia to  describe pre-offer  how she would  perform the

job, with or without reasonable accommodation.  There could be no

meaningful  interaction if  this  court would  accept the  strict

interpretation Grenier presses on  us that an employer who  knows

the precise nature of a disability that interferes with essential

job   functions   cannot,  on   being  informed   pre-offer  that

accommodation  will  be necessary,  follow  up  with the  logical

question "what kind?"6
                                                  

6    On October 10, 1995, subsequent to oral argument, the EEOC
     issued a new Guidance.  Although neither party has argued
     that we ought to consider this newest guidance, we note that
     the EEOC has revised its interpretation of the ADA and now
     reaches the same conclusion.  Under a section headed "The
     Pre-Offer Stage," the EEOC now explains:

          However, when an employer could reasonably believe that
          an applicant will need reasonable accommodation to
          perform the functions of the job, the employer may ask
          that applicant certain limited questions. 
          Specifically, the employer may ask whether s/he needs                                                                         
          reasonable accommodation and what type of reasonable                                                                        

                               -25-

          In sum,  an employer does not violate    12112(d)(2) of

the  ADA by  requiring  a former  employee  with a  recent  known

disability   applying  for   re-employment  to   provide  medical

certification as to  ability to  return to work  with or  without

reasonable  accommodation, and as  to the type  of any reasonable

accommodation  necessary, as  long  as  it  is  relevant  to  the

assessment of ability to perform essential job functions.

          D.  Intentional Discrimination in Denial of Application                    D.  Intentional Discrimination in Denial of Application

          Finally,  Grenier argues  on appeal  that there  remain

genuine  issues of  material fact  as to  his argument  that Cyro

intentionally discriminated against him in violation of 42 U.S.C.

  12112(a), as opposed to   12112(d).  Grenier argues that,  even

if Cyro did  not violate the  specific restrictions on  pre-offer

inquiries,  there is a  genuine dispute of  material fact whether

Cyro  illegally  discriminated  against Grenier  based  upon  his

disability when it denied his application for employment.  

          By failing to  make this argument in his  opposition to

summary judgment, Grenier has failed to preserve this claim.  "It

is by  now axiomatic  that an  issue not  presented to  the trial

court cannot  be raised for the first  time on appeal."  Johnston                                                                           

v. Holiday Inns,  Inc., 595 F.2d 890, 894 (1st  Cir. 1979).  This                                

                                                  

          accommodation would be needed to perform the functions                                 
          of the job.

     Enforcement Guidance: Pre-Employment Disability-Related                                                                      
     Questions and Medical Examinations (Oct. 10, 1995) (emphasis                                                 
     in original).

                               -26-

rule  may  be relaxed  only "in  horrendous  cases where  a gross

miscarriage  of  justice would  occur."     Id.  (quoting  Newark                                                                           

Morning Ledger Co. v. United  States, 539 F.2d 929, 932 (3d  Cir.                                              

1976)).   For  a new argument  to be  considered, it  must be "so

compelling  as virtually  to  insure appellant's  success."   Id.                                                                           

(quoting Dobb v. Baker, 505 F.2d 1041, 1044 (1st Cir. 1974)).                                

          Even an issue  raised in the  complaint but ignored  at

summary judgment  may be  deemed waived.   "If  a party  fails to

assert a legal reason why summary judgment should not be granted,

that  ground  is waived  and cannot  be  considered or  raised on

appeal."  Vaughner  v. Pulito, 804  F.2d 873,  877 n.2 (5th  Cir.                                       

1986); see also  Liberles v. County of Cook,  709 F.2d 1122, 1126                                                     

(7th  Cir.  1983).   This  is  because  "an  appellate court,  in

reviewing  a  summary judgment  order,  can  only consider  those

matters  presented  to  the district  court."    Frank  C. Bailey                                                                           

Enterprises, Inc. v. Cargill,  Inc., 582 F.2d 333, 334  (5th Cir.                                             

1978).

          Although this alternative argument  can be found in the

complaint,  and  Grenier asserts  it  would have  been  raised at

trial, this  does not suffice to preserve  the issue.  Cyro moved

for summary judgment on  all counts based solely on  the validity

of the pre-offer inquiry  under   12112(d).  Grenier  argued only

that issue in  his brief.  Although he  made an oblique reference

in his  memorandum opposing summary judgment to Cyro's failure to

challenge  or  admit  his  "ultimate contention  that  Andre  was

discriminated against  on  the basis  of  his disability  by  the

                               -27-

rejection of his application," he concedes he never addressed the

alternative  claim  of  intentional  discrimination.    The  only

related evidence Grenier discussed  in his "statement of material

facts"  at summary judgment was that Lysaght stated on January 5,

1993 that  Cyro was not seeking  applicants, when it had  in fact

given notice  of the job  opening the day  before.  See  Ennis v.                                                                        

National Ass'n  of Business &amp; Educ.  Radio, Inc., 53  F.3d 55, 58                                                          

(4th Cir. 1995) (discussing prima facie elements of claim under  

12112(a)).   After the judge  entered final judgment  once he had

determined that  Cyro was  entitled  to summary  judgment on  the

issue   of  preemployment  medical   inquiries,  no   motion  for

reconsideration  was filed.  There is nothing in the record which

persuades us  to exercise  our discretion  to bend the  raise-or-

waive rule.

                         III.  CONCLUSION                                   III.  CONCLUSION

          For the  foregoing reasons, the District  Court's grant

of summary judgment is AFFIRMED.                                 AFFIRMED

                               -28-
