                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-10-2004

Polini v. Lucent Tech Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2285




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 03-2285
                                    ____________

                                 PATRICIA POLINI,

                                            Appellant

                                            v.

                             LUCENT TECHNOLOGIES
                              ____________________

           ON APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF PENNSYLVANIA

                           (Dist. Court No. 02-cv-00220)
                      Magistrate Judge: Hon. Arnold C. Rapoport


                               Argued: January 23, 2004

  Before: ALITO, and CHERTOFF, Circuit Judges, and DEBEVOISE,* District Judge

                            (Opinion Filed: June 10, 2004)

                                        DAVID L. DERATZIAN, ESQ. (argued)
                                        NANCY S. SKALANGYA, ESQ.
                                        GEOURGE S. KOUNOUPIS, ESQ.
                                        Hahalis & Kounoupis, P.C.
                                        20 East Broad Street
                                        Bethlehem, PA 18018
                                        Counsel for Appellant


      *
         The Honorable Dickinson R. Debevoise, District Judge of the United States
District Court for the District of New Jersey, sitting by designation.
                                           ROBERT W. CAMERON (argued)
                                           THEODORE A. SCHROEDER
                                           LITTLER MENDELSON
                                           Dominion Tower
                                           625 Liberty Avenue, 26th Floor
                                           Pittsburgh, PA 15222
                                           Counsel for Appellee

                                ______________________

                                OPINION OF THE COURT
                                ______________________


ALITO, Circuit Judge:

       Patricia Polini commenced this action against her former employer, Lucent

Technologies (“Lucent”), claiming that Lucent violated the Americans with Disabilities

Act, 42 U.S.C. § 12101 et seq. (“the ADA”), and the Pennsylvania Human Relations Act,

43 Pa. Stat. Ann. § 951 et seq. (“the PHRA”) 1 , when it decided not to recall her after a lay

off. According to Polini, Lucent made this decision because it regarded her as disabled.

The Magistrate Judge granted summary judgement in favor of Lucent. Because we

conclude that there are genuine issues of material fact, we vacate the order of the District

Court and remand for further proceedings.

                                              I.

       From 1984 to 1985, Polini worked as a “detailer” for Lucent’s predecessor,



       1
         Analysis regarding Polini’s ADA claim is dispositive of her PHRA claim. Taylor
v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999) (“analysis of an ADA claim
applies equally to a PHRA claim”).

                                             -2-
AT&T, and in this capacity she was required, without the aid of a microscope, to examine

computer chips for defects. She was later given the job of “process checker,” which

required her to use a monocular microscope to repair chips. She was laid off as part of a

reduction in force in 1985.

       Polini was a member of the International Brotherhood of Electrical Workers (“the

Union”) and was covered by a collective bargaining agreement between the Union and

the employer. In 1995, Lucent began contacting former Union-represented employees

about returning to work. The Human Resources department, under the direction of

Deborah Harris (Human Resource Manager) and the supervision of Edgar Tanner (Labor

Relations Operations Manager), organized the laid-off individuals into groups based on

seniority. Human Resources employees contacted former employees on the list and asked

if they were interested in being recalled. Each individual who expressed an interest was

then scheduled for a physical examination in Lucent’s Health Services department. The

physical examination consisted of a drug test, a hearing test, a vision test, and a general

physical.

       According to Harris, Health Services was apparently provided with some

information about the nature of the position or positions that were to be filled, but just

how much information was provided is not clear. Harris, who was described by the

Magistrate Judge as the person who was “most knowledgeable about the recall

operation,” provided the following explanation:



                                             -3-
       A. They know what jobs -- again, just sort of briefly or generically, they
       know what jobs we’re hiring for. They don’t necessarily, need to know
       that, but just the rapport we had with the people we talked to a daily basis
       when the hiring first started. They know if we’re hiring for clean room or
       bench hand or something like that.

       Q. Are they looking for something different -- that’s a bad example. Were
       they looking at something different for bench hand versus an accountant?

       A. No. No. Versus accountant, possibly so.

       Q. That’s why I made it that distinction.

       A. Yes.

       Q. Are they looking for something different for a bench -- for a clean room
       operator versus a custodian or somebody in maintenance?

       A. I can’t answer that.

       Q. Do they need to know or do you tell them what the job descriptions of
       the positions you’re hiring for are?

       A. We really don’t have to get into that, as long as they know it’s for a
       manufacturing position, unless there are some issues that come out of
       something, out of the examination or out of the hiring process.

App. 2 166-67. When this portion of the deposition is viewed in the light most favorable

to Polini, the non-moving party, the most that can be said is that Health Services was

given a very general idea of the position or positions that were to be filled.

       Once Health Services completed its exam, it reported to Human Resources

whether the person had passed or failed. According to Harris, after Health Services




       2
           “App.” refers to the Joint Appendix.

                                              -4-
completed an examination, it would give Human Resources “a piece of paper,” “[c]ould

be [a] piece of notebook paper” saying whether the person had “passed or failed” App.

174-75. She added: “Just something briefly.” Id. at 175. If Health Services reported that

a person had failed the physical, the person would not be recalled. App. 179-80.

       When Polini reported for her physical examination, Mary Silver, a Health Services

nurse, administered the vision test. According to Silver, Polini told her that she was blind

in her right eye. The vision examination that Silver conducted was the titmus vision

orthrator (“the test”). 3 During the test, Silver permitted Polini to keep her glasses on at

times and to remove them at other times. The test results revealed that Polini had 20/200

vision in her right eye and 20/25 vision in her left eye, and her stereo depth perception

was assessed as poor.

       Following the vision examination, Dr. Frank Capobianco performed a physical

examination of Polini and reviewed the results of Nurse Silver’s testing. However, Dr.

Capobianco did not know that Polini did not have her glasses on during the entire vision

examination, and he testified that this fact would have been important to him. App. 256-

57. Dr. Capobianco determined that Polini had severe morbid obesity, hypertension, and

monocular vision and that she might “have restrictions for enclosed workspace or

restrictive clothing.” Id. at 260-62, 414. He also identified certain job-related



       3
         The titmus test is an occupational vision test that is standard in the industry. The
test screens for problems in the areas of near vision, far vision, color vision, depth
perception, and vertical and lateral vision.

                                              -5-
restrictions, including an inability to perform “tasks requiring binocular vision” due to

“essential blindness right eye.” Id. at 260-61, 265, 416. In accordance with Lucent

policy, however, he noted that his final assessment was being deferred until he received

further medical information from Polini’s primary care physician.

       On December 2, 1998, Dr. Capobianco referred Polini to her primary health care

physician, Dr. Steven Farbowitz, and faxed Dr. Farbowitz a copy of the job descriptions

for utility operator positions contained in the labor contract between the Union and

Lucent. Dr. Farbowitz is not an ophthalmologist, and the records that he submitted to

Lucent contain no indication that he performed a vision examination on Polini. In

addition, Polini testified that Dr. Farbowitz did not perform a vision examination. App.

107. She also stated that she did not discuss with Dr. Farbowitz whether she could

perform visual inspections. Nonetheless, on December 4, 1998, Dr. Farbowitz issued a

one sentence note stating: “Pat Polini is qualified for the job of utility operator.” Id. at

438.

       Polini returned to Lucent’s Health Services department on December 10, 1998. As

of that date, Dr. Capobianco had already reviewed Dr. Farbowitz’s note. Dr. Capobianco

placed the same job-related medical restrictions on Polini on December 10, 1998, as he

had tentatively placed on her earlier. Specifically, he again noted that Polini “can’t do

tasks requiring binocular vision.” App. 440. Dr. Capobianco determined that Polini’s

vision was “functionally monocular,” meaning that “the poorer eye cannot be corrected



                                              -6-
enough when binocular vision is important for things requiring acute depth perception or

binocular instrument use to be able to do it.” Id. at 266-67.

       After Dr. Capobianco completed this report, Health Services informed Human

Resources that Polini had failed the exam, and Polini was not recalled. It appears that

Lucent did not retain whatever document Health Services used to convey its conclusion to

Human Resources. App. 175.

       A few weeks after December 10, 1998, Polini called the Union to ascertain her

recall status. She testified that a Union representative read to her the forms that had been

prepared by Health Services concerning her physical examination. App. 51-55. Polini

also testified that the same Union representative informed her that Dr. Capobianco had

said that she had numerous restrictions and that she suffered from macular degeneration.

App. at 31-32. After speaking with this Union representative, Pollini received via fax the

records that Dr. Capobianco had prepared. Polini believes that the Union informed her on

January 15, 1999, that Lucent was not going to recall her. Although she spoke to her

Union representatives, Polini never spoke with any Lucent representative concerning why

she was not recalled.

       After learning of Lucent’s decision, Polini went to an ophthalmologist, Dr.

William J. Kitei, on February 12, 1999. Polini told Dr. Kitei that she had been informed

by Lucent that she had macular degeneration. Based on his examination, Dr. Kitei opined

that Polini was “capable of performing almost any job for which she is capable.” App.



                                             -7-
497. Dr. Kitei’s records were never sent to any representative of Lucent’s Health

Services or Human Resources departments. Moreover, Tanner, Harris, and Silver all

testified that they never saw Dr. Kitei’s record prior to their depositions in this case. Id.

at 138-39, 182-83, 240.

       On February 28, 1999, the Union filed a grievance on Polini’s behalf, challenging

Lucent’s decision not to recall her. The grievance alleged that Polini was being

discriminated against because she was overweight but made no reference to her vision.

App. 441. No information concerning Dr. Kitei’s examination or any other new medical

information was presented during the grievance proceedings, and the grievance was

denied.

                                              II.

          The Magistrate Judge granted summary judgment in favor of Lucent on two

grounds. First, the Magistrate Judge concluded that Polini was not “regarded as”

substantially limited in seeing or working. The parties had disagreed as to the identity of

the relevant decision maker at Lucent. Polini argued that the decision not to recall her

was actually made by Dr. Capobianco and Nurse Silver, whereas Lucent took the position

that the relevant decision makers were Harris, the Human Resource M anager, and Tanner,

the Labor Relations Operations Manager. The Magistrate Judge agreed with Lucent

because “Harris and Tanner possessed all the decision-making authority,” and the

Magistrate Judge concluded that Harris and Tanner did not regard Polini as substantially



                                              -8-
limited in the major life activities of seeing and working because they had not seen Dr.

Capobianco’s reports and did not know anything about Polini’s medical condition other

than that she had failed the physical and the vision test. A18-19.4 The Magistrate Judge

rejected the argument that Dr. Capobianco and Nurse Silver were the real decision makers

because they “simply conducted medical examinations” and had “no idea what Human

Resources would do with the information Health Services provided.” A18-19.

Moreover, the Magistrate Judge observed that there was no evidence that Dr. Capobianco

or Nurse Silver regarded Polini as disabled. A17. Rather, the Magistrate Judge stated,

they “simply noted that [Polini] was unable to use a binocular microscope.” A17.

       Second, the Magistrate Judge held that, even if Lucent had regarded Polini as

having a disability, Lucent was nevertheless entitled to summary judgment based on the

defense recognized in Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 192-94 (3d Cir.

1999). Under Taylor, “[i]f an employer regards a plaintiff as disabled based on a mistake

in an individualized determination of the employee’s actual condition . . ., then the

employer [has] a defense if the employee unreasonably failed to inform the employer of

the actual situation.” Id. at 193 (footnote omitted). The Magistrate Judge noted that

Polini did not give Lucent a copy of Dr. Kitei’s report and that the grievance filed by the

Union did not take issue with Dr. Capobianco’s assessment of Polini’s vision but instead

contended that Lucent was discriminating against Polini because she was overweight.



       4
           “A” refers to the documents bound with the Appellant’s brief.

                                              -9-
A20-21.

                                             III.

       We exercise plenary review over a District Court’s grant of summary judgment.

Koslow v. Pennsylvania, 302 F.3d 161, 167 (3rd Cir. 2002). In evaluating the District

Court’s grant of summary judgment in favor of Lucent, we must determine whether there

are any genuine disputes of material fact. Fakete v. Aetna, Inc., 308 F.3d 335, 337 (3d

Cir. 2002). If not, then viewing the evidence in the light most favorable to Polini, we

must decide whether Lucent was entitled to judgment as a matter of law. See F ED. R.

C IV. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

       The ADA prohibits “discrimination against a qualified individual with a disability

because of the disability of such individual.” 42 U.S.C. § 12112(a). In order to establish

a prima facie case of discrimination in violation of the ADA, a plaintiff must prove that

she “(1) has a ‘disability’ (2) is a ‘qualified individual’ and (3) has suffered an adverse

employment action because of that disability.” See Deane v. Pocono Med. Ctr., 142 F.3d

138, 142 (3d Cir. 1998) (en banc).

       A plaintiff may establish that she has a disability by showing that (1) she suffers a

physical or mental impairment that substantially limits one or more of her major life

activities, (2) she has a record of such impairment, or (3) she was “regarded as” having

such an impairment by her employer. See Marinelli v. City of Erie, Pa., 216 F.3d 354,

359 (3d Cir. 2000). On appeal, Polini argues only that Lucent regarded her as disabled.



                                             -10-
Polini does not claim that she had an impairment that actually limited a major life activity

or that she had a record of such an impairment.

       The Supreme Court has defined “substantially limited” as “significantly restricted

as to the condition, manner or duration under which an individual can perform a

particular major life activity.” Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S.

184, 195 (2002) (“In determining whether an individual is substantially limited in a major

life activity . . . the following factors should be considered: the nature and severity of the

impairment; the duration or expected duration of the impairment; and the permanent or

long-term impact of or resulting from the impairment.”) (internal quotations and citation

omitted). An individual is not substantially limited unless she has “an impairment that

prevents or severely restricts [her] from doing activities that are of central importance to

most people’s lives.” Id. at 185.

       To be “disabled” under the “regarded as” portion of the ADA’s definition of

disability, Polini must demonstrate either that (1) although she had no impairment at all,

Lucent erroneously believed that she had an impairment that substantially limited a major

life activity or (2) that she had a nonlimiting impairment that Lucent mistakenly believed

limited a major life activity. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 489

(1999); Tice v. Ctr. Area Transp. Auth., 247 F.3d 506, 514 (3d Cir. 2001).5



       5
        The EEOC regulations also allow for an individual to establish that s/he is
“regarded as” disabled if s/he “[h]as a physical or mental impairment that substantially
limits major life activities only as a result of the attitudes of others toward such

                                             -11-
       The major life activities in which Polini claims Lucent regarded her as

substantially limited are seeing and working. In this connection, Polini points in

particular to Dr. Capobianco’s statement that she had monocular vision. The Supreme

Court has held that monocularity is not “a per se disability,” but the Court has added that

its “brief examination of some of the medical literature leaves us sharing the

Government’s judgment that people with monocular vision ‘ordinarily’ will meet the

[ADA’s] definition of disability.” Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 566-67

(1999); see also Sutton, 527 U.S. at 472 (“whether a person has a disability under the

ADA is an individualized inquiry”). The Court noted that persons with monocular vision

“vary by the degree of visual acuity in the weaker eye, the age at which they suffered their

vision loss, the extent of their compensating adjustment in visual techniques, and the

ultimate scope of the restriction on their visual abilities.” Id. at 566. As a result, the

Court concluded, “monocular individuals” must “prove a disability by offering evidence

that the extent of the limitation in terms of their own experience, as in loss of depth

perception and visual field, is substantial.” Id. at 567.

                                              IV.

       Lucent defends the decision of the Magistrate Judge on the ground that the

relevant decision makers were Harris and Tanner and that they did not regard Polini as



impairment.” 29 C.F.R. § 1630.2(l)(2). See Sutton, 527 U.S. at 490 (“These
misperceptions often ‘resul[t] from stereotypic assumptions not truly indicative of . . .
individual ability.’”) (citing 42 U.S.C. § 12101(7)).

                                              -12-
suffering from monocular vision or, indeed, any other particular vision impairment. All

that they knew, Lucent stresses, was that Polini had failed the vision test.

       Polini, on the other hand, contends that Harris and Tanner were not the ultimate

decision makers because the recall decision was controlled by the outcome of the medical

evaluation. Polini notes that, during the grievance proceeding, Tanner stated that he had

no ability to recall Polini because “Medical won’t let her in.” App. 535. Therefore,

according to Polini, the relevant decision makers were Dr. Capobianco and Nurse Silver.

       Although the Magistrate Judge held that Harris and Tanner were the relevant

decision makers, we conclude that there is at least a genuine dispute of fact on this

question. As noted, Polini’s claim is that she was not recalled because she was regarded

as having a disability. See Pocono Med. Ctr., 142 F.3d at 142. Thus, the focus must be

on the person or persons whose determinations in fact controlled the decision not to recall

her. This is not a case in which the person having the formal decision making authority

deferred to a report or recommendation submitted by someone else but nevertheless

exercised at least some measure of independent judgment. Cases of that sort present

issues that we need not confront here. As portrayed to us by both sides, this case, by

contrast, is one in which a reasonable fact finder could find (and perhaps would be

obligated to find) that the officials with the formal decision making authority, i.e., those

in Human Resources, exercised no judgment whatsoever. Instead, it may be that the real

decision making authority was in effect delegated to Health Services. As noted, Health



                                             -13-
Services was given some information about the positions for which the person to be

examined was being considered; Health Services then presumably made some judgment

about the physical requirements of those positions and about the physical capabilities of

the person who was examined; and Health Services ultimately informed Human

Resources whether the person had passed or failed the basic components of the exam. If

Health Services told Human Resources that the person had failed, Human Resources

automatically declined to recall the individual. Under these circumstances, a reasonable

fact finder certainly could find (and might be required to find) that Health Services was

the real decision maker for present purposes.

         Lucent maintains that it is entitled to summary judgment even if the real decision

making occurred in Health Services because “Dr. Capobianco and Harris merely

concluded that Polini had monocular vision and could not use a binocular microscope.

There is no evidence that they believed Polini’s vision limited her daily activities or that

she was disqualified from more than one particular job.” Appellee’s Br. at 15. We do not

agree.

         The pertinent question is whether Health Services decided that Polini had failed

the vision test because it considered her vision to be impaired to such a degree that it

substantially restricted her in the major of life activities of seeing or working. As noted,

monocularity is often a disability, and here Dr. Capobianco also stated that Polini was

essentially blind in one eye. We conclude that the record is sufficient to create a genuine



                                             -14-
issue as to whether Health Services decided that Polini had failed the vision test because

Dr. Capobianco regarded her as substantially limited in the major life activity of seeing.

       We believe that evidence in the record also creates a genuine issue on the question

of whether Health Services decided that Polini had failed the vision test because Dr.

Capobianco regarded her vision as preventing her from performing a broad class or range

of jobs. Although it appears that Dr. Capobianco reviewed the job description of the

specific job that was open, it is not at all clear that Health Services’ decision that Polini

had failed the vision test was based merely on the belief that she lacked the visual acuity

needed for that position. The long passage from Harris’s deposition that was quoted

above may be read to say that Health Services customarily considered only whether a

person was physically capable of a “generic[]” type of job, such as “a manufacturing

position.” App. 166-67. Thus, the summary judgment record leaves open the possibility

that Health Services’ decision that Polini had failed the vision test was based on the

conclusion that she lacked the vision needed for a broad class or range of jobs.

       For these reasons, we hold that the M agistrate Judge erred in granting summary

judgment for Lucent on the ground that Polini was not regarded as having a disability.

                                            V.

       The Magistrate Judge held that Lucent was entitled to summary judgment on the

alternative ground that Polini unreasonably failed to bring to Lucent’s attention evidence

that the evaluation of her vision in Dr. Capobianco’s report was inaccurate. In this



                                              -15-
connection, Lucent notes that Polini possessed Dr. Kitei’s report by the time of the

grievance proceeding but that this report was not furnished to Lucent. Lucent argues as

follows:

       Polini knew in December 1998 that her vision was an issue with respect to
       her recall, and that Dr. Capobianco had opined in his report that she “can’t
       do tasks requiring binocular vision.” . . . . Notwithstanding her knowledge
       of this issue, Polini never informed Lucent Human Resources or Health
       Services that her vision had allegedly been improperly assessed.

Appellee’s Br. at 35.

       The defense recognized in Taylor is “fact-specific,” 177 F.3d 194, and we believe

that a reasonable fact finder could find on the present record that Polini acted reasonably.

First, it does not appear that Polini was ever informed precisely why she was not recalled.

Polini stated that no one at Lucent ever told her the basis for the decision, App. 51, 56-58,

and Lucent has not pointed to any contradictory evidence in the summary judgment

record. Polini presumably knew that the decision was based on medical reasons, but Dr.

Capobianco’s report of December 10, 1998, which was faxed to Polini by her union

representative, set out several restrictions in addition to the inability to “do tasks requiring

binocular vision.” 6 App. 441. Although Harris stated in her deposition that the only



       6
        Lucent does not claim that it ever told Polini that her vision was the sole reason
why she was not recalled, but Lucent claims that she nevertheless deduced that this was
the ground for the decision. Lucent argues as follows. Although Dr. Capobianco’s final
report imposed restrictions not related to Polini’s vision – viz., “No Work at Unprotected
Elevation,” “No Ladder or Pole Climbing,” and “No Frequent Squatting or Bending,” see
App. 440, Polini acknowledged during her deposition that Dr. Capobianco told her that
“as a utility operator, you don’t have to climb ladders or stoop for eight hours.” App. 52.

                                              -16-
reason why Polini was not recalled was her failure to pass the vision test, App. 178-79, it

is not clear that either the company and union representatives at the grievance meeting

understood this. As noted, the grievance filed by the union referred to Polini’s obesity,

not her vision. At the step IV grievance meeting, a company representative referred to all

three of the conditions mentioned in Dr. Capobianco’s first report – “[s]evere morbid

obesity, hypertension, binocular vision” – and most of the discussion concerned Polini’s

weight. App. 534-35.

       Second, it does not appear that Polini was ever informed that Dr. Capobianco

believed (based on Nurse Silver’s report of the vision exam) that Polini had monocular

vision even when wearing corrective lenses. This was important because Polini knew

that, without correction, her vision in one eye was very poor. Thus, without knowing that

Dr. Capobianco was referring to her uncorrected vision, she had less reason to challenge

his statement.




Lucent therefore reasons that Polini must have known that her vision was the sole reason
why she was not recalled. Lucent also notes that, after Polini learned that she would not
be recalled, the only physician whom she saw was an eye doctor.
        While the evidence to which Lucent points is sufficient to support a finding that
Polini knew the reason for the contested decision, it is not sufficient to prevent a
reasonable fact finder from reaching the opposite conclusion. Polini’s union
representative gave Polini a copy of Dr. Capobianco’s earlier report, which referred to
“severe morbid obesity” and “hypertension,” and the grievance filed on Polini’s behalf
stated that she was being discriminated against based on obesity. As noted, Polini’s
obesity was a major topic of discussion at the Step IV Grievance Meeting. See App. 534-
35. We hold that there is a genuine issue as to whether Polini knew that her vision was
the only reason for the company’s decision.

                                            -17-
       Third, although Lucent asserts in its brief that only one position (“Utility Operator:

Wafer Fabrication Operations”) was open and that this position requires the use of a

binocular microscope, Appellee’s Br. at 5-6, Lucent has not called to our attention any

evidence that Polini was informed of either of these facts. When Nurse Silver faxed job

descriptions to Polini’s physician, Dr. Farbowitz, her cover memo referred to “utility

operator job descriptions,” App. 430 (emphasis added), and job descriptions of several

different utility operator positions were attached. Id. at 432-37. In addition, the job

description for the position of “Utility Operator: Wafer Fabrication Operations” stated

that the job involved “visual . . . inspections,” but there was no mention of a binocular

microscope. Id. at 436.

       Lucent’s Taylor argument, therefore, amounts to the following. Polini acted

unreasonably in failing to inform Lucent that she has binocular vision after correction

even though she did not know that she was not recalled solely because of her vision, she

did not know that Dr. Capobianco believed that she was essentially blind in one eye even

after correction, and she did not know that the only position for which she was considered

required binocular vision. Contrary to Lucent’s position, we conclude that a reasonable

fact finder could find that Polini acted reasonably under these circumstances.

                                             VI.

       For the reasons stated above, the District Court’s grant of summary judgment in

favor of Lucent is reversed, and the case is remanded.



                                            -18-
