
USCA1 Opinion

	




                           United  States Court of Appeals                                                           For the First Circuit                                 ____________________        No. 96-1837                       EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,                                Plaintiff, Appellant,                                          v.                                     AMEGO, INC.,                                 Defendant, Appellee.                                 ____________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF MASSACHUSETTS                  [Hon. George A. O'Toole, Jr., U.S. District Judge]                                                ___________________                                 ____________________                                        Before                            Cyr and Lynch, Circuit Judges,                                            ______________                           and McAuliffe,* District Judge.                                           ______________                                 ____________________            Karen   M.   Moran,   Attorney,   Equal   Employment   Opportunity            __________________        Commission, with  whom C. Gregory Stewart,  General Counsel, Gwendolyn                               __________________                    _________        Young  Reams, Associate  General  Counsel, and  Vincent J.  Blackwood,        ____________                                    _____________________        Assistant General Counsel, were on brief, for appellant.            Mary  Jo Hollender, with  whom Hollender  & Carey,  L.L.P., was on            __________________        brief, for appellee.                                 ____________________                                    April 7, 1997                                 ____________________        *Of the District of New Hampshire, sitting by designation.                      LYNCH, Circuit Judge.  Amego, Inc., is a small not-                      LYNCH, Circuit Judge.                             _____________            for-profit organization  which  cares for  severely  disabled            people  suffering from  autism,  retardation, and  behavioral            disorders.    It   serves  twenty-five  to   thirty  clients,            including  six  in  a   residential  program  in   Mansfield,            Massachusetts,  where  Ann Marie Guglielmi  was employed as a            Team Leader.   The Team  Leader position required  her to  be            responsible for the care of these disabled clients, including            the  responsibility  of  administering vital  medications  to            them.  After an  unresolved investigation of improprieties in            the  administering of  medication  to patients  at a  related            facility, Amego  learned that other staff  felt Guglielmi was            not performing her job adequately and was putting patients at            risk.    Amego also  learned  that  Ms. Guglielmi  had  twice            attempted to commit suicide within the previous six  weeks by            overdosing on  medications.  This, Amego  decided, meant that            Guglielmi could not safely dispense medications, an essential            job function,  and that  there was  no  other job  reasonably            available to her.  Her employment was thus terminated.                       The   Equal   Employment   Opportunity   Commission            ("EEOC")  sued  Amego  on   behalf  of  Guglielmi  under  the            Americans with Disabilities Act ("ADA"), 42 U.S.C.   12101 et                                                                       __            seq.  The district court entered summary judgment against the            ____            EEOC, holding  that the EEOC had  not made out  a prima facie            case  that Guglielmi was an otherwise "qualified" individual,                                         -2-                                          2            that  an accommodation  could  be reasonably  made, and  that            there was discrimination "because of" her disability.                        The EEOC  appeals and argues that  the question of            whether  an  employee  poses  a  significant  risk  to  other            individuals  in the  workplace is  an affirmative  defense on            which the employer bears the burden of  proof and is thus not            part  of   the  plaintiff's  burden  that   the  employee  is            qualified.  Those issues of qualification and  risk, the EEOC            says,  are matters for  the jury to resolve  at trial and may            not be resolved on  summary judgment.  The EEOC  also invites            this  court to  hold  that "adverse  employment action  taken            because of conduct  related to a disability  is tantamount to            action taken because of a disability itself" for purposes  of            the ADA.                       We affirm the judgment of the district court.                                          I.                      The following facts are undisputed.                      Founded in 1972 by parents of autistic individuals,            Amego receives public  funding and is  licensed by two  state            agencies.   A condition  of licensing is  that Amego  provide            conditions  that  ensure the  safety  and  well-being of  its            clients.   Amego maintains a very  low client-to-staff ratio,            usually one  staff member to  two clients.   One particularly            aggressive  client   required  supervision  by   three  staff            members, eighteen hours a day.                                          -3-                                          3                      Amego has a policy of not  rejecting those who seek            its help.  Most of its clients engage in aggressive and self-            injuring behavior, including self-mutilation.  Many have been            rejected  by,  or  discharged  from, other  agencies.    Most            clients are on prescription medications, and in June of 1992,            all  clients  at  the  Mansfield residence,  save  one,  were            receiving prescription medications.                       Consistent   with   its  philosophy   of  attempted            integration,  Amego  provides  its  clients  with  access  to            community activities on a regular basis.  Residential clients            are  transported daily  to the  Day Treatment  Program, where            they frequently  are taken  by direct  care staff  to stores,            bowling alleys, banks, and the like.                       In  September  1990,  Amego hired  Guglielmi  as  a            Behavior Therapist.  She was then about 21 years old  and did            not represent  herself to  have any  disability.  In  January            1991, she was diagnosed  as bulimic and clinically depressed;            however, she did not tell her employer about these conditions            until  after her first suicide attempt, over a year after the            diagnosis.   She was prescribed  Prozac in 1991,  but it only            partially alleviated the depression.   She stopped taking the            drug in April.  In the fall of 1991, she  started living with            her boyfriend, David Andrade, who worked at a different Amego            residence.   That  relationship  was fraught  with  problems.            Andrade used  cocaine; Guglielmi,  however, says she  did not                                         -4-                                          4            confirm  her suspicions  of that  until late  June 1992.   In            early  1992, she  started  seeing a  social worker,  Margaret            Posever, for bimonthly therapy sessions.                        Earlier,  in July  1991, Guglielmi was  promoted to            the  position of Team Leader at the Mansfield residence.  The            essential  functions of  that position  included: supervising            the   day-to-day   implementation  of   individual  clinical,            educational, and vocational programs and  data collection for            all programs; serving as a role model for  staff in all areas            of  client programming,  client  services,  and  professional            practice; assessing staff  performance, providing  additional            training,  support, and  counseling as  appropriate; ensuring            that Amego's policies and  procedures on clients' rights were            implemented  and  documented;  responding   appropriately  in            crisis situations; and administering and  documenting the use            of prescribed medications.                      On March 4, 1992, Guglielmi received a  performance            evaluation which  said she was an  "exceptional" Team Leader.            The evaluation  was based on her  performance through January            1992.  In the spring of 1992, Guglielmi applied for promotion            to  the position  of  Program Coordinator  for the  Mansfield            residence.   The  promotion  instead went  to Kristen  Stone.            Stone assumed her new responsibilities on May 4, 1992.                      That  same  day,  Guglielmi  deliberately  took  an            overdose  of  nonprescription sleeping  pills  which she  had                                         -5-                                          5            purchased for that purpose.  After taking the pills, she told            Andrade what she had done; he took her to the emergency room.            She was  transferred to  a psychiatric hospital  and released            later  that evening.  She  told health care  workers that she            attempted suicide  because she was  upset by problems  in her            relationship with  her boyfriend, her failure  to receive the            promotion, and other work-related stress.  She was readmitted            to  the psychiatric hospital on May 6, 1992, and stayed there            until  May 12 because  of concerns about her  safety.  On the            day  of her readmission to the hospital -- two days after her            suicide  attempt -- Guglielmi  was not able  to "contract for            safety" with  her therapist Posever.   Guglielmi told Posever            that even  if she were to  so contract, her mood  was in such            flux that  she could not be  sure she would not  hurt herself            anyway.  A week after returning to work, and again  two weeks            later, she told Posever that she felt suicidal.                      When Guglielmi returned to work on May 13, she told            her  supervisor  only  that  she had  been  hospitalized  for            bulimia  and  depression.   She  did  not  say  that she  had            attempted  suicide.  She  asked her supervisor  to modify her            work  schedule so  that  she could  attend  therapy twice  or            thrice weekly.  Her  supervisor agreed to this accommodation.            However, Guglielmi  stopped  going to  the  therapy  sessions            after a few weeks.                                          -6-                                          6                      On May 21, 1992, Guglielmi began seeing Dr. Kenneth            Levin for psychopharmacological treatment.  He  diagnosed her            as suffering  from bulimia and  major depression,  prescribed            Prozac  and  trazodone, and  saw her  to  monitor her  use of            medication.   Prozac  was  one of  the medications  regularly            administered to Amego's clients.   On June 4, 1992,  she told            Dr.  Levin  that she  had  experienced  periodic feelings  of            increased   depression,   including   a   period   when   she            contemplated overdosing.   She assured Dr. Levin that if such            thoughts recurred, she would not act on them but would inform            her boyfriend  or a health care  provider.  She did  not keep            her word.                      On June 13, Guglielmi deliberately overdosed again,            this  time using  her  prescription  medications, Prozac  and            trazadone, as  well as aspirin.   After taking  the overdose,            she  called  the Plainville  police,  who  took  her  to  the            hospital.   She was released on June 15, 1992.   She told her            health care  providers that she was not really depressed when            she  overdosed  but wanted  to  provoke a  reaction  from her            boyfriend.  When Guglielmi  returned to work on June  17, she            again  did  not tell  her  employer  that she  had  attempted            suicide.                        On   the  day  Guglielmi   returned  to  work,  the            Executive Director of Amego, Caryn Driscoll, and the Director            of  Administrative  Services,  Karen  Seal,  met  with  David                                         -7-                                          7            Andrade  about his  job  performance problems.   During  this            meeting, Andrade  mentioned  rumors that  clients were  being            drugged  at  the Fales  Road residence.    He worked  at that            location  regularly, and Guglielmi worked there occasionally.            Around that time, Driscoll learned  that Klonopin, one of the            medications prescribed for clients, was either missing or was            being  used  at   an  accelerated  rate  at  the  Fales  Road            residence.  Some cocaine users take Klonopin  as an antidote,            to calm them down from the effects of cocaine.                       Amego  investigated  and  found  that  four  of the            clients at the Fales  Road residence (two of whom  should not            have  had Klonopin at all) had blood levels of Klonopin which            were too high.   Amego asked any employees who  had pertinent            information  to  step forward.    Guglielmi  did so  and  was            interviewed  on June  26  by Driscoll,  Amego's Human  Rights            Officer, and  a private investigator.   During the interview,            Guglielmi focused  on her relationship with  Andrade, who she            feared might be targeted in the investigation.  She said that            she was  suffering from  bulimia and depression  and revealed            for  the first time  her two recent suicide  attempts.  In an            attempt  to explain  Andrade's performance  issues, she  said            that he had helped  her when she attempted suicide  two times                                         -8-                                          8            by  overdosing  on  both  prescription  and  over-the-counter            drugs.1                       Earlier,  on  June 5,  a  shift  supervisor at  the            Mansfield residence,  Chester Millet,  had  noticed that  the            medication log was missing.   He conducted a thorough search,            including behind the medication cabinet, and did not find it.            Guglielmi also  helped look for it.   On the same  day of her            interview with Driscoll, June 26, Guglielmi reported that she            had found the missing medication  log.  She said the log  had            been behind  the medication cabinet, between  the cabinet and            the wall.  Millet told Driscoll that he had previously looked            there  and  had  not seen  it.    Although  Driscoll did  not            initially consider Guglielmi under suspicion for the improper            drugging  of patients  at  Fales Road,  she  and other  staff            members  found the discovery of  the book by  Guglielmi to be            peculiar.  A  review of  the medication log  showed that  the            supply  of  drugs  on  hand at  the  Mansfield  residence was            excessive.  It  was not  possible to determine  from the  log            whether medications were missing.                        On  June 26,  Driscoll  spoke  with the  Plainville            police about her  concerns about the drugging  of patients at                                            ____________________            1.  During the interview, Guglielmi was asked whether she had            observed or  suspected that Andrade  was using cocaine.   She            answered "no" to both  questions.  The latter answer  was not            true.  Discovery in this case revealed that she had spoken to            her therapist about her suspicions of her boyfriend's cocaine            use as early as May 27, 1992.                                           -9-                                          9            Fales  Road.  The police told Driscoll that they found pills,            initially thought to be Klonopin, in Guglielmi's apartment on            the night they responded to her suicide call.                       Around June  28,  Driscoll  received  a  call  from            Carlos  Andrade,   an  Amego  employee  and  David  Andrade's            brother.  He told her that staff members felt Guglielmi's job            performance  was suffering and had  asked him to do something            about it.  He reported that staff  members were uncomfortable            with her job performance,  that she was erratic in  behavior,            had  mood  swings,  seemed to  be  focussed  on her  personal            problems,  that she was seen walking outside and crying, that            she was heard fighting  on the phone with David  Andrade, and            that she  was self-absorbed and unable to  concentrate on her            job.                        Carlos  Andrade  also passed  on  that  Millet, the            shift  supervisor and one of the most senior staff members at            the  Mansfield residence,  was  concerned that  Guglielmi had            suddenly handed him the  drug log, saying that she  had found            it in the residence  when he had searched everywhere  for it.            Driscoll confirmed  Carlos Andrade's report with  Millet, who            had never  before complained about another  employee.  Carlos            Andrade felt that Guglielmi was not performing her job safely            and was putting clients at risk.  Driscoll knew  there was no            way  to prevent  Guglielmi from  having access  to medication            while she worked at Amego.                                           -10-                                          10                      A  few days  later,  on July  1, Driscoll  informed            Guglielmi in  writing that  she was temporarily  removed from            her  position  as Team  Leader  and  would be  reassigned  to            perform clerical  and other light duties.   The letter stated            that the fact that  Guglielmi's recent hospitalizations  were            the   result   of   deliberate  overdoses   of   prescription            medications raised  "concerns about [her] ability  to perform            [her]  present job  functions including  medication ordering,            dispensing and shift supervision."  The letter also indicated            that Amego's Safety Committee would meet to determine whether            Guglielmi could  perform her  job, or another  available job,            with  or  without accommodations.    Driscoll  said that  the            Committee  should seek  medical information  from Guglielmi's            treating physician.                      In an  attempt to obtain a  professional opinion on            Guglielmi's  ability to  resume her  duties, Driscoll  sent a            letter  to Posever on  July 1 asking  whether Guglielmi could            perform  eleven  duties  that a  Team  Leader  would  need to            perform,  set forth on a checklist.   The letter came back to            Amego on July 8 with a check in the "yes" column for each job            duty.  Only Guglielmi had signed the bottom of the checklist.                      Driscoll  called  Posever to  ask if  the checklist            accurately  reflected Posever's opinion  that Guglielmi could            complete  the duties  or  whether the  list merely  reflected            Guglielmi's own opinion.  Posever told Driscoll she was not a                                         -11-                                          11            medical  doctor,  that  the  checklist did  not  represent  a            medical competency  evaluation as to each  specific job duty,            nor was  it a guarantee regarding  each duty.  It  was rather            that,  based  on  her  discussions  with  Guglielmi  and  her            knowledge of her  work and treatment history,  Posever had no            reason  to think  Guglielmi could  not perform  those duties.            Posever's  checking "yes"  was based  on her  observations of            Guglielmi's demeanor and  on Guglielmi's  statement that  she            felt comfortable giving out psychotropic medications at work,            even in light  of her  suicide attempts.   Driscoll  appeared            dissatisfied  with  the  response  and  pressed  for  a  more            definitive opinion,  which Posever declined to  give.  Later,            Driscoll   told   Guglielmi  that   Posever's   response  was            inadequate.                       On  July  22,  Driscoll  sent Dr.  Levin  a  letter            requesting his opinion as  to whether Guglielmi could perform            the eleven functions of her job and  enclosing the checklist.            In  a  letter  dated July  27,  1992,  Dr.  Levin wrote  that            Guglielmi  was  no longer  on  prescription  medication.   He            concluded:  "My understanding  is that  she has  consistently            performed  her  regular job  responsibilities conscientiously            and I see  no difficulty  with her returning  to her  regular            position."   There  was no  checklist with  the letter  Amego            received.   Driscoll  viewed  Dr.   Levin's  conclusions   as            largely being based on  what Guglielmi said she could  do and                                         -12-                                          12            her representation that she had no performance problems.  But            Driscoll  knew from  staff  complaints that  Guglielmi had  a            range of performance  problems.  And Driscoll  knew Dr. Levin            had not checked with anyone at Amego about whether  Guglielmi            was in  fact performing well.   Driscoll told  Guglielmi that            Dr.  Levin's letter  did  not adequately  deal  with the  job            functions issue.                        Driscoll  was  also concerned  that the  parents of            Amego's charges would feel  that their children would be  put            at   risk  by  being  in  the  care  of  someone  who  abused            prescription drugs.  The parents, she felt, would contact one            of the state agencies which licensed Amego.                        On  July  21,  the   Safety  Committee  met.    The            Committee  was comprised  of four  administrators: Seal,  the            Director   of   Administrative   Services;   Amego's   Health            Coordinator,   who  was  a   nurse;  the   Staff  Development            Coordinator;   and   the  Administrative   Assistant/Workers'            Compensation Coordinator.  The Committee found that Guglielmi            was not in fact performing her  job duties conscientiously or            performing them well.  The Committee concluded that Guglielmi            could not  safely perform the  Team Leader position  and that            there  was  no  Amego  position  that  could  be  modified to            accommodate her.                      On July  27, 1992,  Amego's Board of  Directors was            informed of  the recommendation of the  Safety Committee and,                                         -13-                                          13            after  additional  discussion, concluded  that  there  was no            alternative  position that could  accommodate Guglielmi.  The            following day Driscoll informed Guglielmi that her employment            was  terminated.    Amego  says  its  core  concern  was that            Guglielmi  could  not  meet  the essential  job  function  of            handling prescription medication.                                          II.                      The district  court  entered summary  judgment  for            Amego,  finding that the EEOC  had failed to  meet its burden            under the ADA of showing that Guglielmi was qualified for the            position  of Team  Leader and  that Amego  could have  made a            reasonable accommodation.  The district court also found that            the EEOC  had failed to meet its burden of showing that Amego            had   discriminated   against   Guglielmi   "because   of"  a            disability.                       The scope  of appellate review of  entry of summary            judgment in ADA cases, as in all others, is de novo.  Soileau                                                        __ ____   _______            v. Guilford, 105 F.3d 12, 14  (1st Cir. 1997).  The EEOC bore               ________            the  burden  of  showing  that  Guglielmi  was  qualified  to            perform, either with or without reasonable accommodation, the            essential  functions of  her job.   See  Jacques v.  Clean-Up                                                ___  _______     ________            Group, Inc., 96 F.3d 506, 511 (1st Cir. 1996).2            ___________                                            ____________________            2.  To  establish a  claim under  the ADA,  a plaintiff  must            prove  by a preponderance of  the evidence: (1)  that she was            disabled within the  meaning of  the ADA; (2)  that, with  or            without reasonable accommodation, she was able to perform the            essential  functions of her job (in other words, that she was                                         -14-                                          14                      For summary judgment  purposes, the parties do  not            dispute  that  Guglielmi was  a  disabled  person within  the            meaning of the ADA.  It  is also undisputed that an essential            function  of the  Team Leader position  is to  administer and            monitor the medication  of Amego's clients.   The written job            description provides that this  is an essential job function,            and the EEOC concedes that Team Leaders have access to locked            medicine cabinets containing  large quantities  of drugs  and            are expected to administer medications to clients.                       This case initially turns  on whether the EEOC has            met  its burden of  showing that Guglielmi  was a "qualified"            person.   Amego's position is that  it terminated Guglielmi's            employment because  she showed by her conduct  -- by behavior            leading co-workers to  have concerns about whether  she was a            risk to clients  and by  her two attempts  to commit  suicide            using prescription  and  non-prescription drugs  -- that  she            could not reasonably be  trusted to meet her responsibilities            as to medications.  Although the qualification analysis could            be   understood  to   subsume  the   concept   of  reasonable            accommodation, we think it  analytically sounder to treat the                                            ____________________            "qualified");  and (3)  that the  employer discharged  her in            whole or  in part because of her disability.  See Jacques, 96                                                          ___ _______            F.3d at  511; Katz v.  City Metal Co.,  Inc., 87 F.3d  26, 30                          ____     ____________________            (1st Cir. 1996); see also 42 U.S.C.   12112(a).  The district                             ___ ____            court  used  the  largely  similar  formula  under  McDonnell                                                                _________            Douglas Corp. v. Green, 411 U.S. 792 (1973), for establishing            _____________    _____            a  prima facie  case of  discrimination.   Either  formula is            appropriate here.  See Katz, 87 F.3d at 30.                               ___ ____                                         -15-                                          15            two topics separately.  Cf. Southeastern Community College v.                                    ___ ______________________________            Davis,  442  U.S.  397,  406  (1979)("An otherwise  qualified            _____            person [under the Rehabilitation  Act] is one who is  able to            meet  all  of  a  program's  requirements  in  spite  of  his            handicap.").3            Qualification/Direct Threat Under Title I of the ADA            ____________________________________________________                      To understand the EEOC's  burden of proof argument,            it is necessary to  understand the ADA statutory scheme.   At            its core, Title I of the ADA is about protecting the disabled            from  discriminatory employment  action based  on stereotypes            and fear.   See H.R. Rep.  No. 101-485, pt. 3,  at 45 (1990),                        ___            reprinted in 1990 U.S.C.C.A.N. 445, 468; see also Jacques, 96            _________ __                             ___ ____ _______            F.3d at 511.   The prima facie case establishes  that because            an  individual  with  a  disability  is  qualified,  yet  has            suffered   adverse   employment   action  because   of   that            disability,  the employer  may have  engaged in  the  type of            discrimination  the ADA is  designed to  prevent.   Here, the            plaintiff has failed to  establish a prima facie case:  there            is  no evidence  suggesting the  presence of  any disability-            based discrimination.                       The general  rule of  the ADA  is that  an employer            shall not "discriminate against a qualified individual with a            disability because  of the disability .  . . ."   42 U.S.C.                                              ____________________            3.  As    explained    below,   caselaw    interpreting   the            Rehabilitation  Act of 1973 is applicable to the ADA.  See 29                                                                   ___            U.S.C.   794(d).                                         -16-                                          16            12112(a).  It is generally accepted that, in a  Title I case,            the  plaintiff  bears   the  burden  of  showing  she   is  a            "qualified" individual.  See Jacques, 96 F.3d at 511.                                       ___ _______                      A qualified  individual is one who  can perform the            essential  functions  of  the job  held.    See  29 C.F.R.                                                           ___            1630.2(m).     The   statute   also  says   that  "the   term            'qualification standards'  may include a requirement  that an            individual  shall not pose a  direct threat to  the health or            safety of other individuals  in the workplace."  42  U.S.C.              12113(b).     It  defines  "direct  threat"   as  meaning  "a            significant risk  to  the health  or  safety of  others  that            cannot be eliminated by reasonable accommodation."  42 U.S.C.               12111(3).     The   rub   is  that   the  language   about            "qualification standards" under Title  I appears in a section            of the  statute entitled "Defenses."   42  U.S.C.    12113(a)            ("It may be  a defense  to a charge  of discrimination  under            [the  ADA]  that  an  alleged  application  of  qualification            standards . . . has been shown to be job-related.")  The EEOC            argues  that the employer bears  the burden of  proof on this            affirmative defense.                        The EEOC  argues further that whenever  an issue of            threats to  the safety or health  of others is involved  in a            Title I case, it  must be analyzed under the  "direct threat"            provision   of      12113(b)   as  an   affirmative  defense.            Specifically, the EEOC contends that the   12113(b) provision                                         -17-                                          17            that qualification standards  may include a requirement  that            an  individual not be  a direct threat  is to be  read in the            context  of the  defense set  out in    12113(a).   The  EEOC            supports  its position  by noting that    12113  is captioned            "Defenses."4  Thus,  the EEOC says, the  district court erred            in considering the matter of whether Guglielmi posed a threat            to   the  safety   of  Amego's   clients  as   a   matter  of            "qualification," on which plaintiff  bears the burden.  Amego            contends  that the risks posed to others may be considered as            part  of  the qualified  individual  analysis,  and that  the            specific discussion  of a  direct threat defense  in    12113                                            ____________________            4.  The  confusion   on  this  point  is   reflected  in  the            legislative    history.   During    congressional   hearings,            Representative   Dannemeyer   asked   a  witness,   who   had            contributed to the drafting of the ADA, who had the burden of            proof on the direct threat issue  in the communicable disease            context.     Comm.  on  Educ.   and  Labor,  U.S.   House  of            Representatives,  101  Cong., 1st  Sess., The  Americans with                                                      ___________________            Disabilities  Act  1896  (Comm.  Print 1990).    The  witness            _________________            replied  that the plaintiff, as part of his prima facie case,            would have to put on  evidence that his communicable  disease            would not pose a direct threat to others.  Id.                                                       ___                There  is also  caselaw establishing  that  even under  a            "direct threat" analysis, the  "employee retains at all times            the  burden of persuading the  jury either that  he was not a            direct   threat  or   that  reasonable   accommodations  were            available."   Moses v. American Nonwovens, Inc., 97 F.3d 446,                          _____    ________________________            447 (11th  Cir. 1996)(per curiam)(citing Benson  v. Northwest                                                     ______     _________            Airlines, Inc.,  62 F.3d 1108,  1112 (8th Cir.  1995)), cert.            ______________                                          _____            denied, 117 S. Ct. 964 (1997).  In affirming summary judgment            ______            for the employer  in an  ADA action brought  by an  epileptic            product  inspector  who worked  near  exposed  machinery, the            Moses  court  noted  that  to defeat  summary  judgment,  the            _____            nonmoving party must  raise "significant probative  evidence"            that  is "sufficient" for the  jury "to return  a verdict for            that party."  Id.  at 447 (citing Anderson v.  Liberty Lobby,                          ___                 ________     ______________            Inc., 477 U.S. 242, 249 (1986)).            ____                                         -18-                                          18            does not preclude the consideration of  safety risks in other            prongs of the ADA analysis.                       Because  the  statutory  scheme  does  not  clearly            resolve this debate,  we look to  the legislative history  to            determine  whether   risks  posed  to  others   may  only  be            considered in the direct threat defense context.   See United                                                               ___ ______            States v. Charter  Int'l Oil Co., 83 F.3d  510, 517 (1st Cir.            ______    ______________________            1996).  Upon such review, we discern  no congressional intent            to preclude the consideration of essential job functions that            implicate   the   safety   of   others   as   part   of   the            "qualifications" analysis, particularly  where the  essential            functions of a job involve the care of others  unable to care            for  themselves.    The  House  Report5  said  that,  in  the            definition of  "direct threat,"  "[t]he Committee  intends to            codify  the direct threat standard used  by the Supreme Court            in School Board of Nassau County  v. Arline."  H.R. Rep.  No.               _____________________________     ______            101-485, pt. 3, at 34 (1990), 1990  U.S.C.C.A.N. at 457.  The            House  Report goes  on to  say that,  "[i]f the  applicant is            otherwise  qualified  for  the  job,  he  or  she  cannot  be            disqualified on the  basis of a physical or  mental condition                                            ____________________            5.  The report  was concerned about exclusion  of individuals            based  on fears  or stereotypes,  rather than  on "objective"            evidence about the individual involved.  Thus, in the case of            a person with mental illness there must be objective evidence            from  the  person's behavior  that  the person  has  a recent            history  of committing  overt  acts or  making threats  which            cause harm or which directly threatened harm.  H.R. Rep. 101-            485, pt. 3, at 45-46, 1990 U.S.C.C.A.N. at 468-69.                                         -19-                                          19            unless  the  employer can  demonstrate  that  the applicant's            disability  poses a direct threat to others in the workplace.            . . .   The plaintiff is not required to prove that he or she            poses no  risk."  Id. at  46, 1990 U.S.C.C.A.N. at  469.  The                              ___            intent to codify Arline suggests that   the   burden  is   on                             ______            plaintiff to show that he or she is qualified in the sense of            not  posing a direct threat.  Arline considered that issue to                                          ______            be part of  the "qualification"  analysis under    504 as  to            which plaintiff bears the  burden.6  See Arline, 480  U.S. at                                                 ___ ______            287-88.                      The  ADA  also  contains  a directive  that  it  be            enforced in a manner that is consistent with the requirements            of the Rehabilitation  Act of  1973.  42  U.S.C.    12117(b).            Courts   therefore   use  caselaw   under       504  of   the            Rehabilitation  Act,  29  U.S.C.      794,  for  guidance  in            interpreting the ADA.   See 29 U.S.C.   794(d)("The standards                                    ___            used  to  determine  whether  this  section  [   504  of  the            Rehabilitation Act] has been violated in a complaint alleging            employment  discrimination under  this section  shall  be the            standards applied under Title I of the [ADA]."); Katz v. City                                                             ____    ____            Metal  Co., Inc., 87 F.3d 26, 31 n.4 (1st Cir. 1996) (Section            ________________            504 of the  Rehabilitation Act "is interpreted  substantially                                            ____________________            6.     While the language of the "direct threat" provision is            not  limited  to  instances   where  the  threat  comes  from            communicable  diseases,  the   provision  originated  in  the            communicable disease context.  See H.R. Rep. No. 101-485, pt.                                           ___            2, at 76, 1990 U.S.C.C.A.N. at 358-59.                                         -20-                                          20            identically to the ADA.").  Under   504, it is clear that the            question  of whether  the employment  of the  plaintiff poses            risks to  the health  of others  is analyzed  as a  matter of            whether  the person  is "otherwise  qualified."   Arline, 480                                                              ______            U.S. at 287; see also Abbott  v. Bragdon, --- F.3d ---,  ---,                         ___ ____ ______     _______            1997 WL 85096,  at *7 (1st  Cir. March  5, 1997) ("A  court's            goal  in conducting a direct threat analysis under the ADA is            to achieve a reasonable balance, protecting service providers            . . .  from  enforced  exposure  to  unacceptable health  and            safety    risks"   while   protecting   the   disabled   from            discrimination.).                                                       In Arline,  the Court  held that  the issue  of the                         ______            threat  to others  posed by an  employee with  a communicable            disease was  properly analyzed as  a question of  whether the            employee was "otherwise qualified."  Arline, 480 U.S. at 287.                                                 ______            The Court noted that  a "person who poses a  significant risk            of  communicating  an infectious  disease  to  others in  the            workplace  will not be otherwise qualified for his or her job            if reasonable  accommodation will  not eliminate that  risk."            Id.  at 287  n.16.   Arguably,  in  Arline, the  question  of            ___                                 ______            whether the plaintiff  could perform the core  functions of a            school  teacher's  job  was  separate from  the  question  of            whether  she   nonetheless  posed  a  risk   because  of  her            communicable disease.  Here,  the questions are not separate:                                         -21-                                          21            the issue of risk posed to others arises in the  context of a            core function of the job.                      The  EEOC correctly  points  out that,  unlike  the            Rehabilitation   Act,  the  ADA's  definition  of  "qualified            individual" does not address risk posed to others.   While it            is  true   that  the   implementing  regulations   under  the            Rehabilitation   Act   define   "qualified  individual   with            handicaps"  specifically to include  "without endangering the            health and safety of  the individual or others," 29  C.F.R.              1614.203(6),   Congress  intended  the  ADA's  definition  of            "qualified individual with a disability" to be "comparable to            the definition used in  regulations implementing section  501            and section 504  of the  Rehabilitation Act of  1973."   H.R.            Rep. 101-485, pt. 2, at 55, 1990 U.S.C.C.A.N. at 337.                      The EEOC  stakes out a  position which  is far  too            broad.  This is not a case where a person who can perform all            essential job  functions nonetheless poses a  risk to others.            The  district court  did  not, we  believe,  commit error  in            considering  risk  posed  to  others under  the  category  of            "qualification," where the risk  is expressly associated with            performance of an essential job function.                       The  precise  issue here  concerns  the employer's            judgment that  Guglielmi could not  be trusted to  handle the            medication-related functions  of her job.   In  this case,  a            failure to  perform an  essential function --  overseeing and                                         -22-                                          22            administering medication --  would necessarily create a  risk            to  others.   That  a  failure  to  perform  a  job  function            correctly  creates a  risk to  others does  not preclude  the            ability   to  perform   that  function   from  being   a  job            qualification.  The position argued by the EEOC would lead to            the anomalous result that there is a lesser burden of proving            qualifications on a plaintiff where the job involves the care            of others, and necessarily entails risk to  others, than when            the  job does not.   We do  not believe  Congress intended to            weaken the burden on plaintiffs to show they are qualified in            such circumstances.                      In such  cases, where  the employee is  responsible            for ensuring the  safety of  others entrusted to  his or  her            care, other courts, without discussion  of the point the EEOC            raises,  have simply considered the risk  question to be part            of the "qualified" analysis.  See, e.g., Doe v. University of                                          ___  ____  ___    _____________            Maryland Med. Sys. Corp., 50 F.3d 1261, 1265 (4th Cir. 1995);            ________________________            Altman v. New York City Health and Hosp. Corp., 903 F.  Supp.            ______    ____________________________________            503, 509-10 (S.D.N.Y. 1995); Mauro v.  Burgess Med. Ctr., 886                                         _____     _________________            F. Supp. 1349, 1352-53 (W.D. Mich. 1995).                        We  hold that,  in a  Title I ADA  case, it  is the            plaintiff's burden to  show that  he or she  can perform  the            essential functions of the job, and is therefore "qualified."            Where those essential job functions necessarily implicate the            safety  of others,  plaintiff must  demonstrate that  she can                                         -23-                                          23            perform  those  functions in  a  way that  does  not endanger            others.  There may  be other  cases under  Title I  where the            issue of direct threat is not  tied to the issue of essential            job functions but is purely a matter of defense, on which the            defendant would bear the burden.  This case does not raise or            resolve  issues of  the  role of  "direct threat"  provisions            under  other   parts  of   the  ADA,   such  as  the   public            accommodation title.   Cf. Abbott,  1997 WL 85096.   For  the                                   ___ ______            reasons which follow, we  conclude plaintiff's burden was not            met.            Appropriateness of Summary Judgment            ___________________________________                      The EEOC argues that  a jury question is presented,            in any event, as to whether the evidence showed Guglielmi was            qualified.  This is not, we think, a close question.                      We set  the context.   Guglielmi did  not meet  her            burden of demonstrating that  she is qualified.  There  is in            this record no suggestion that  the employer has applied  its            standards differentially.  The EEOC presents no evidence that            the employer has ever found a  similarly situated employee to            be  qualified to  handle the  essential medication  function.            Instead, the  EEOC attempts  to derive from  its disagreement            with Amego  over whether Guglielmi is  qualified an inference            that   the  employer's  different   assessment  is  based  on            disability  discrimination.    However,  where,  as  here, no            evidence  of animus  is present,  courts may  give reasonable                                         -24-                                          24            deference to  the employer's assessment of  what the position            demands.   See Doe v. New  York Univ., 666 F.2d  761, 776 (2d                       ___ ___    _______________            Cir.  1981)(finding  that,  in  case  involving  mentally ill            applicant to medical school, "considerable judicial deference            must  be  paid to  the  evaluation  made by  the  institution            itself, absent  proof that its standards  and its application            of them serve  no purpose other than to  deny an education to            handicapped  persons");  cf. Southeastern  Community College,                                     ___ _______________________________            442  U.S.  at 406  (supporting  reasonable  deference to  the            decisions made by administrators of federally funded programs            so  long as no evidence is presented of discriminatory intent            with regard to the handicapped person).                       The  requirement  of  showing "qualifications"  has            substance, notwithstanding the frequent leapfrogging  of that            analysis  to  get  to   the  pretext  issue  under  McDonnell                                                                _________            Douglas.7   In  the context  of academic  tenure  cases, this            _______            court has been attentive to the need  to balance the right of            a  plaintiff  to  be  free from  discrimination  against  the            undesirable result of having the court sit as a "super-tenure            committee."   See Villanueva  v. Wellesley College,  930 F.2d                          ___ __________     _________________                                            ____________________            7.  The  ADA is interpreted in a manner similar to Title VII,            Soileau, 105  F.3d at 16, and courts  have frequently invoked            _______            the familiar burden-shifting analysis of McDonnell Douglas in                                                     _________________            ADA cases.  The  qualification prong of the prima  facie case            is frequently met  by a showing  that the employee  satisfied            the  prerequisites for the position and  that she can perform            the essential functions of the position held or desired.  See                                                                      ___            42 U.S.C.   12111(8); 29 C.F.R.   1630.2(m).                                         -25-                                          25            124, 129 (1st  Cir. 1991).   Thus, plaintiffs  who have  been            denied  tenure must  show  that their  qualifications are  at            least  comparable  to those  of  a  "middle group  of  tenure            candidates as to whom both a decision  granting tenure  and a            decision denying  tenure could  be justified as  a reasonable            exercise of  discretion by the tenure-decision  making body."            Banerjee  v. Board  of Trustees,  648 F.2d  61, 63  (1st Cir.            ________     __________________            1981).  Aware of the fine balance of competing considerations            that  preserve academic  freedom, this  court has  noted that            "[i]n tenure cases, courts must take special care to preserve            the University's autonomy in making lawful tenure decisions."            Brown v. Trustees  of Boston  Univ., 891 F.2d  337, 346  (1st            _____    __________________________            Cir. 1989).                        Similar care is required here.  Where the plaintiff            has presented no  evidence of discriminatory intent,  animus,            or even pretext, we think there should be special sensitivity            to  the  danger  of  the court  becoming  a  super-employment            committee.   Unlike the  academic institutions in  the above-            cited  cases,  Amego is  a small  employer.   Its  history of            employment decisions is neither  lengthy nor detailed, making            it difficult to assume, without help from plaintiff, that the            qualification   standards  it   asserts  for   Guglielmi  are            different from those required  of other employees.  Plaintiff            has failed to provide such help.   It is in this context that            we  review the  facts.   We are  also mindful  of the  Arline                                                                   ______                                         -26-                                          26            factors for assessing whether an employee poses a significant            risk to others.  Cf. Arline, 480 U.S. at 288.8                             ___ ______                      It  was  eminently  reasonable  for  Amego  to   be            concerned    about   whether   Guglielmi   could   meet   her            responsibilities, and also reasonable for it to conclude that            the risk was too great to run.   The employer's judgment here            about the risks of future behavior by an employee is based on            past behavior and reasonable indicia of future behavior.                        First,  the nature of the risk was such that it was            extremely  difficult  to guard  against.    The clients  were            particularly vulnerable to abuse  or neglect.  The mechanisms            to  insure that  they were  properly treated  with regard  to            their medications, other than  having trustworthy staff, were            not obvious.  Amego had just learned that, despite its normal            procedures, four  patients at  the Fales Road  residence were            overly medicated and  that it could not determine whether any            medications  were missing.    Testing the  clients' blood  to            determine whether they had received the correct dosage level,            or  indeed  the  correct  drugs,  has  to  be  considered  an            extraordinary step, and not a safeguard which could routinely                                            ____________________            8.  In  determining whether  an individual  poses significant            health  and safety risk  to others in  the contagious disease            context, the Arline Court  suggested the consideration of the                         ______            following factors:  the nature of  the risk; the  duration of            the  risk; the  severity of  the risk  (potential of  harm to            third  parties), and  the probabilities  the disease  will be            transmitted and will cause varying degrees of harm.  Id.   We                                                                 ___            conduct  our analysis of  the safety risk  Guglielmi poses to            Amego clients against this backdrop.                                         -27-                                          27            be  taken.  Additionally, the severity of the risk, i.e., the                                                                ____            potential  harm to third parties, Arline, 480 U.S. at 288, is                                              ______            great.   The  potential outcomes  of administering  the wrong            medication to a client are obvious and extreme.                      Second,   there   were  performance   issues  which            enhanced  the likelihood  that  the clients  could be  harmed            unless  steps were  taken.   Amego received  complaints, from            other  staff members, that  Guglielmi was unable  to focus on            her job  and  was a  risk  to patients.   The  situation  was            serious  enough  that  staff  members  sent  an  emissary  to            management, asking  that something be done.   The peculiarity            of Guglielmi  finding the missing  medication log at  a place            which had  been searched earlier would  reasonably give Amego            pause.   Amego had reason  to fear that  Guglielmi would take            medications  from  Amego.    When  the  police  came  to  her            apartment on the  night of her  second suicide attempt,  they            found  pills they believed to be Klonopin.  Klonopin is taken            by cocaine  users, and management suspected the man with whom            Guglielmi lived of being a cocaine user and of drugging Amego            clients.9                                            ____________________            9.  Amego  did  not  learn  until after  it  had  decided  to            terminate Guglielmi's  employment that Guglielmi had  lied to            them about  whether she  suspected Andrade of  using cocaine.            Because  it is unnecessary to the decision, we do not address            the issue  of whether this after-acquired  evidence could, in            the context of the ADA, be used for purposes other  than as a            rationale for  terminating her employment, e.g.,  to buttress                                                       ____            the  employer's  judgment that  Guglielmi's untrustworthiness            affected her  ability to  perform an essential  job function.                                         -28-                                          28                      Third, other measures  had not eliminated the  risk            of  Guglielmi  mishandling  medication.    Amego  knew  that,            despite counselling  and medication, Guglielmi  had attempted            suicide  a second  time using medication  and that  she would            have access  to Prozac at work, one of the drugs used in this            second attempt.   The EEOC  says that Amego  should have  had            greater  confidence in Guglielmi because  she no longer had a            prescription  for drugs after  the second attempt.   There is            cold comfort in that: this fact increased the likelihood that            Guglielmi  would use the drugs available to her at work for a            third attempt.  Amego also knew that despite its provision of            a work schedule accommodation,  Guglielmi soon stopped  going            to the therapy sessions  she said she wanted to  attend after            her first suicide attempt.  Amego knew that by concealing her            suicide attempts  Guglielmi had misled them  about the nature            of her previous absences from work.                       Fourth,   when   Amego   sought  reassurance   from            Guglielmi's health  care providers,  the  responses were  not            confidence-building.    Posever, the  social  worker, neither            responded to the substance of the request for information nor                                            ____________________            Cf.  Mantolete  v. Bolger,  767  F.2d  1416, 1424  (9th  Cir.            ___  _________     ______            1985)(holding  that,  in  Rehabilitation  Act   case,  later-            discovered   evidence  as   to  plaintiff's   actual  medical            condition  is  admissible to  rebut  plaintiff's  prima facie            showing  of qualification).   But  cf. McKennon  v. Nashville                                          ___  ___ ________     _________            Banner  Publ'g Co., 115 S. Ct. 879, 885 (1995) (holding that,            __________________            in ADEA  cases, after-acquired evidence  may not  be used  to            justify discriminatory  discharge, though  it may be  used to            limit plaintiff's recovery).                                         -29-                                          29            signed  her  name  to the  checklist.    After receiving  the            checklist,  Driscoll telephoned Posever.   Posever explicitly            declined to give  a psychiatric medical opinion.   Dr. Levin,            the psychopharmacologist, gave  a brief response  which Amego            could  reasonably   understand  to  be  unresponsive  to  its            concerns and to be based on Guglielmi's own assessment of her            ability to do the work.                      We also  credit  the deliberative  process  through            which Amego made its decision.10  It sought additional input,            including  that  from   Guglielmi's  medical  advisors,   and            considered  other information  before reaching  its decision.            This  deliberative process  undercuts any  argument  that the            employer  based   its  decision   as  to   qualifications  on            stereotypes about disability.  There  can be no serious claim            that Amego, which  had considerable  experience dealing  with            mentally  handicapped persons and  integrating them  into the            community,  acted on the  basis of the  stereotypes and fears            which  Congress wished to counteract in the ADA.  Also, Amego            had  earlier made  accommodations.   It  modified Guglielmi's            schedule  so  that  she   could  receive  treatment  and  was            supportive  of her efforts to  deal with her  condition.  See                                                                      ___            Soileau, 105 F.3d at 17.            _______                                            ____________________            10.  As the district court noted, the irony is that, if Amego            had acted with less deliberation, the employment action would            have  been taken before the  effective date of  the ADA.  The            ADA became effective a few days before Guglielmi's discharge.                                         -30-                                          30                      Amego also operated in a context which added weight            to the risks it  thought Guglielmi posed.  Amego  is licensed            by two state agencies and is required to take steps to assure            the  safety of  its patients.   If a  single client  had been            harmed from misuse  of medication, then Amego  stood the risk            of losing its licenses and its ability to care for any of its            clients.11                       Under these  circumstances,  where no  evidence  of            differential  treatment,  discrimination, or  stereotyping is            proffered,  the  employer's  judgment  is  entitled  to  some            weight.    The  EEOC's  "Interpretive Guidance"  to  its  ADA            regulations notes that the  inquiry into essential  functions            is  not  intended  to  second-guess  an  employer's  business            judgment regarding production standards,  whether qualitative            or  quantitative.  EEOC, Interpretive Guidance  on Title I of                                     ____________________________________                                            ____________________            11.  In Arline, the Supreme Court noted that deference should                    ______            be  given to the judgments  of public health  officials as to            the  analysis   of  whether  an  individual  is  "qualified."            Arline, 480  U.S. at 288;  cf. Abbott,  1997 WL 85096,  at *9            ______                     ___ ______            (reasoning that deference of "prima facie force is due public            health officials").   No  such direct evidence  was presented            here.   But it  is noteworthy that  Amego was subject  to the            regulatory  requirements  of  two  public  agencies.    As  a            condition of  receipt of public funds, Amego must be licensed            to  operate  by  the   Massachusetts  Department  of   Mental            Retardation and  the Massachusetts Office for  Children.  One            of  the  requirements  for licensure  included  ensuring  the            safety  and well-being  of the  clients entrusted  to Amego's            care.                                          -31-                                          31            the Americans with  Disabilities Act, app.  to 29 C.F.R.  pt.            ____________________________________            1630.12                      In somewhat similar  factual settings, other courts            have affirmed summary judgment on the issue of qualification.            In Doe  v. University  of Maryland  Medical System  Corp., 50               ___     ______________________________________________            F.3d  at 1261,  the defendant  medical center  terminated the            employment  of an  HIV-positive doctor.   The  court affirmed            summary  judgment on the grounds  that the doctor  was not an            "otherwise   qualified"  individual   because   he  posed   a            significant  risk to  patients that  could not  be eliminated            through  reasonable accommodation.   Id. at 1266.   The court                                                 ___            rejected the doctor's argument  that the risk of transmission            was  so  infinitesimal  that   it  could  not  be  considered            significant.  Id. The  employer had relied on recommendations                          ___            from the Center for Disease Control in analyzing  whether the            doctor's  job functions fit  the definition of exposure-prone            procedures.  Id. at 1264.  The court expressed its reluctance                         ___            to substitute  its judgment for  that of the  medical center.            Id. at 1266.  In Bradley v. University of Texas M.D. Anderson            ___              _______    _________________________________            Cancer  Center, 3 F.3d 922 (5th Cir. 1993), the Fifth Circuit            ______________                                            ____________________            12.  It is  true that  the Interpretive Guidance  also states            that the determination  whether someone is qualified  "should            not  be based  on speculation  that the  employee may  become            unable in the future."  Id.   This not such a case.   Rather,                                    ___            Amego based its determination on Guglielmi's capabilities "at            the  time  of  the  employment  decision,"  as  the  Guidance            suggests is appropriate.  Id.                                      ___                                         -32-                                          32            affirmed  entry  of summary  judgment for  the employer  on a            Rehabilitation Act claim with similar facts.                        Similarly,  the  Fourth  Circuit  in  Martinson  v.                                                            _________            Kinney  Shoe Corp.,  104 F.3d 683  (4th Cir.  1997), affirmed            ______  __________            summary judgment on the ground that an epileptic employee was            not qualified  to perform an  essential job  function of  his            salesperson's  job   at  a   retail  store,   which  entailed            maintaining  store  security.   See  also  Kohl v.  Woodhaven                                            ___  ____  ____     _________            Learning Ctr., 865 F.2d  930 (8th Cir. 1988) (finding  that a            _____________            Hepatitis  -  B  carrier  patient  who  displayed  aggressive            behavior would pose an  unreasonable risk of transmitting the            disease to other patients and staff); cf. Arline, 480 U.S. at                                                  ___ ______            288.             Reasonable Accommodation            ________________________                      The  EEOC argues  that Amego  was required  to move            Guglielmi  from  the  Team  Leader  position  to  a  Behavior            Therapist  position as  a reasonable  accommodation.   If the            Behavior Therapist  position required no  responsibility with            respect  to  medication, there  would  be more  force  to the            EEOC's position.   See Hurley-Bardige v. Brown, 900  F. Supp.                               ___ ______________    _____            567, 570 (D.  Mass. 1995)(finding  that there is  "no per  se            rule against transfers  as reasonable accommodations").   But            the position did entail that responsibility.                       Although   medication-related    duties   are   not            specifically   mentioned  in   the  Behavior   Therapist  job                                         -33-                                          33            description, the ability to handle,  administer, and document            medication  was inherently part  of the  Behavior Therapist's            function,   as  listed   in   Amego's  job   description,  of            "implementing individual clinical and  educational programs."            13                       All  Behavior Therapists  receive  training in  the            administration of medications.  Behavior Therapists accompany            clients  on frequent  off-site trips  into the  community and            must dispense  medications  to clients  at appropriate  times            without  supervision.   When  no  Shift  Supervisors or  Team            Leaders  are present,  the Behavior Therapists  must dispense            medications  at  the  residences.   Behavior  Therapists also            accept   deliveries  of   client   medications   in   Amego's            facilities.    Keys  to   the  medicine  cabinet  are  easily            accessible to Behavior Therapists.                       There is  no  material factual  dispute;  only  the            legal  implications  of  these  facts are  in  true  dispute.            Medication-related duties of  the Behavior Therapist position            are  essential, and not marginal, to the position.  While the            amount  of  time  a   Behavior  Therapist  spends  dispensing                                            ____________________            13.  Evidence of whether  a particular function  is essential            includes, but  is not  limited to, written  job descriptions;            the employer's judgment as  to which functions are essential;            the  amount of time spent on the job performing the function;            the consequences  of not  requiring the plaintiff  to perform            the  function; and the work experience of those who are doing            or have done similar jobs.  29 C.F.R.   1630.2(n).                                           -34-                                          34            medication is not great, the consequences of getting it wrong            are quite great indeed.                        There was no accommodation that Amego could make to            the Behavior Therapist position that would not cause it undue            hardship.  See  42 U.S.C.    12112(b)(5)(A),  12111(9).14  To                       ___            retain  Guglielmi   while  eliminating  all   of  Guglielmi's            medication-related duties,  it would  have been  necessary to            hire another  Behavior  Therapist to  be paired  with her  to            ensure that she would never  be left alone with a client  who            needed  medication.     Amego  might  also   have  needed  an            additional supervisor  to ensure that Guglielmi  did not have            access to  client medications.   The expense of  hiring these            additional  staff would  be too great  for a  small nonprofit            like  Amego to be reasonably  expected to bear.15   See Vande                                                                ___ _____                                            ____________________            14.  In determining whether an accommodation  would impose an            undue hardship under  the ADA, the  factors to be  considered            include:  the  nature  and  cost of  the  accommodation;  the            overall financial  resources of  the facility; the  number of            persons employed at the facility; the effect on expenses  and            resources, or the impact otherwise of such accommodation upon            the  operation  of   the  facility;  the   overall  financial            resources  of  the covered  entity; the  overall size  of the            business of a covered entity; the number, type,  and location            of  its facilities; and the type of operations of the covered            entity including the composition, structure, and functions of            the workforce  of such entity;  the geographic  separateness,            administrative,  or fiscal  relationship of  the facility  in            question to the covered entity.  42 U.S.C.   12111(10)(B).            15.  The  cost  of  an  additional  Behavior  Therapist,  for            example, would be approximately $20,000 (base  wages annually            with benefits).  Given that Amego ended the fiscal years 1992            and  1993 with a deficit, this would require additional funds            which Amego does not have.                                          -35-                                          35            Zande v. Wisconsin  Dep't of  Admin., 44 F.3d  538, 542  (7th            _____    ___________________________            Cir. 1995)(holding that employer  may prove undue hardship by            establishing that the costs of the proposed accommodation are            excessive  in relation  either  to  its  benefits or  to  the            employer's financial health or survival).                      Another  possible  option, rearranging  Guglielmi's            assignment to clients so that she was never with a client who            required medication, would  obviously be difficult since,  at            the time  of Guglielmi's employment,  only one client  at the            Mansfield  residence  did  not  take  medication.   Assigning            Guglielmi to  that one  client would disrupt  Amego's crucial            one-staff-member-to-two-clients  ratio,16  or  result in  the            need  for an  additional  Behavior Therapist.   Both  options            would alter the basic  operations of Amego and go  beyond the            scope of  a reasonable accommodation.   See Reigel  v. Kaiser                                                    ___ ______     ______            Found. Health Plan, 859 F. Supp. 963, 973 (E.D. N.C. 1994).            __________________                      Deploying another Behavior Therapist to Guglielmi's            location   and  shift   or   changing  Guglielmi's   clients'            programming  to  ensure that  they were  on site,  near other            staff members, whenever they  needed to take medication would            have  an equally  disruptive  effect on  Amego's clients  and                                            ____________________            16.  Altering  these  staff/client  ratios  would  contravene            specific  provisions that  are  included  in Amego's  funding            contracts  and  the  clients'  individualized  educational or            service plans.                                          -36-                                          36            staff   as   well   as   interfere   with   Amego's   funding            requirements.17  See Ricks v. Xerox Corp., 877 F. Supp. 1468,                             ___ _____    ___________            1477  (D. Kan. 1995)(holding that the ADA does not require an            employer to  hire a  full-time  helper to  assist a  disabled            employee as a reasonable accommodation).                      In   sum,   Amego    cannot   make   a   reasonable            accommodation. To do what the EEOC asks would be to alter the            very  nature  of  the  Behavior Therapist  position.    "Such            redefinition exceeds  reasonable accommodation."   Bradley, 3                                                               _______            F.3d at 925.               "Because Of" and the Conduct/Disability Distinction             ___________________________________________________                      The EEOC argues that it met its burden on causation            because, it says, the ADA prohibits adverse employment action            that is based on conduct related  to a disability to the same            extent that  it prohibits adverse employment  action based on            the  underlying  disability  itself.    It  says  that  Amego            terminated Guglielmi because of her suicide attempts and that            the  termination was, therefore, "because of" her disability.            Even if Amego terminated  Guglielmi for misusing  medication,            rather  than  for  attempting  suicide,  the  EEOC  says  the            termination decision was still "because of" her disability.                                              ____________________            17.  Amego's  philosophy  of   maximizing  community   access            opportunities is  incorporated into its funding contracts and            into clients'  individualized  programs.   Amego  would  have            violated  those   agreements  if  it  were   to  diminish  or            artificially  restrict  community  access  opportunities  for            either Guglielmi's or another employee's clients.                                          -37-                                          37                      To the extent that the EEOC is arguing that conduct            connected to  a disability  always must be  considered to  be            action  "because  of"  a  disability, that  is  too  broad  a            formulation.  While one may hypothesize certain conduct which            is in  fact more  closely compelled  by the  disability (e.g.                                                                     ____            profanity from Tourette's Syndrome sufferers), this case does            not provide the occasion to explore what merit there might be            to  a more refined formulation  of the EEOC's  position.  The            syllogism which the EEOC presents -- Guglielmi was depressed,            therefore Guglielmi attempted suicide, therefore any response            to  the attempted suicide  is "because of"  her disability --            breaks down.  Apart from the evidence that staff believed she            was  a threat to clients based on her at-work behavior alone,            Amego has  been clear, for  purposes of the  summary judgment            motion, that it was the manner of the suicide attempts -- use            of  medications, including  prescription medications  -- that            motivated its decision.18                      There  is  simply   no  evidence  that  Guglielmi's            depression  compelled her  to  overdose  on  medications,  as            opposed to  other methods  of attempting suicide.   At  best,            EEOC's evidence  was that individuals suffering  from bulimia            and depression sometimes  have suicidal  thoughts or  attempt                                            ____________________            18.  Amego,  through  its Safety  Committee,  determined that            Guglielmi  could  not  safely   perform  any  of  the  eleven            responsibilities  of the  Team  Leader position  but did  not            raise this argument on summary judgment.                                          -38-                                          38            suicide.  In  Taub v. Frank, 957 F.2d 8 (1st Cir. 1992), this                          ____    _____            court  held  that  a  plaintiff  could  not  show  under  the            Rehabilitation Act  that he was  discharged by reason  of his            handicap,  drug addiction,  because his heroin  addiction was            "simply  too  attenuated  when   extended  to  encompass   an            addiction-related  possession  of  heroin for  distribution."            Id.   at  11.    Similarly,   in  Leary  v.  Dalton,  another            ___                               _____      ______            Rehabilitation  Act case,  this  court found  that where  the            discharge from employment was for absenteeism  resulting from            incarceration   for  driving   under   the   influence,   the            plaintiff's disability of alcoholism  was not the sole reason            for his termination.  58 F.3d 748, 752 (1st Cir. 1995).                       The  facts   of  this  case  do   not  present  the            disability   and  conduct   connection  the   EEOC  suggests.            Accordingly,  there  was no  error  in  the district  court's            determination  that the EEOC also  has not met  its burden of            showing  the   job  action  was   "because  of"   Guglielmi's            disability.                      The entry  of summary judgment for  Amego, Inc., is            affirmed.            ________                                         -39-                                          39
