USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1093
BONNIE COOK,
Plaintiff, Appellee,
v.
STATE OF RHODE ISLAND,
DEPARTMENT OF MENTAL HEALTH, RETARDATION, AND HOSPITALS,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Barbadoro,* District Judge.
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John L.P. Brequet for appellant.
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Lynette Labinger, with whom Roney & Labinger was on brief,
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for appellee.
Mary L. Clark, with whom James R. Neeley, Jr., Deputy
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General Counsel, Gwendolyn Young Reams, Associate General
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Counsel, and Vincent J. Blackwood, Assistant General Counsel,
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were on brief for U.S. Equal Employment Opportunity Commission,
amicus curiae.
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November 22, 1993
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*Of the District of New Hampshire, sitting by designation.
SELYA, Circuit Judge. This pathbreaking "perceived
SELYA, Circuit Judge.
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disability" case presents a textbook illustration of the need
for, and the operation of, the prohibition against handicap
discrimination contained in section 504 of the Rehabilitation Act
of 1973, 29 U.S.C. 794 (1993 Supp.). Concluding, as we do,
that plaintiff's proof satisfied the burdens articulated by the
district court in its jury instructions, we uphold the denial of
defendant's various post-trial motions and affirm the judgment
below.
I. BACKGROUND
I. BACKGROUND
At the times material hereto, defendant-appellant
Department of Mental Health, Retardation, and Hospitals (MHRH), a
subdivision of the Rhode Island state government, operated the
Ladd Center as a residential facility for retarded persons.
Plaintiff-appellee Bonnie Cook worked at Ladd as an institutional
attendant for the mentally retarded (IA-MR) from 1978 to 1980,
and again from 1981 to 1986. Both times she departed
voluntarily, leaving behind a spotless work record. The
defendant concedes that Cook's past performance met its
legitimate expectations.
In 1988, when plaintiff reapplied for the identical
position, she stood 5'2" tall and weighed over 320 pounds.
During the routine pre-hire physical, a nurse employed by MHRH
concluded that plaintiff was morbidly obese1 but found no
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1The medical profession considers a person morbidly obese if
she weighs either more than twice her optimal weight or more than
100 pounds over her optimal weight. See Merck Manual 950, 953
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2
limitations that impinged upon her ability to do the job.
Notwithstanding that plaintiff passed the physical examination,
MHRH balked. It claimed that Cook's morbid obesity compromised
her ability to evacuate patients in case of an emergency and put
her at greater risk of developing serious ailments (a "fact" that
MHRH's hierarchs speculated would promote absenteeism and
increase the likelihood of workers' compensation claims).
Consequently, MHRH refused to hire plaintiff for a vacant IA-MR
position.
Cook did not go quietly into this dark night. Invoking
section 504, she sued MHRH in federal district court.2 MHRH
moved to dismiss the complaint, see Fed. R. Civ. P. 12(b)(6),
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averring that morbid obesity can never constitute a handicap
within the meaning of the Rehabilitation Act. The district court
denied the motion. See Cook v. Rhode Island, 783 F. Supp. 1569
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(D.R.I. 1992). Pretrial discovery followed.
In due season, the parties tried the case to a jury.
At the close of the evidence, appellant moved for judgment as a
matter of law. The court reserved decision, see Fed. R. Civ. P.
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(15th ed. 1987). While Cook had been corpulent during her prior
tours of duty, she had not then attained a state of morbid
obesity.
2Plaintiff's suit also contained counts under the Rhode
Island Fair Employment Practices Act, R.I. Gen. Laws 28-5-1 to
28-5-40 (1992 Supp.), and under the Rhode Island Civil Rights of
Individuals with Handicaps Act, R.I. Gen. Laws 42-87-1 to 42-
87-4 (1992 Supp.). Since all parties proclaim that the elements
and standards of a handicap discrimination claim are no different
for present purposes under Rhode Island law than under federal
law, we need not independently address the state-law claims.
3
50(a), and submitted the case on special interrogatories (to
which appellant interposed no objections). The jury answered
the interrogatories favorably to plaintiff3 and, by means of the
accompanying general verdict, awarded her $100,000 in
compensatory damages. The district court denied appellant's
motions for judgment as a matter of law and for a new trial,
entered judgment on the verdict, and granted equitable relief to
the plaintiff. MHRH lost little time in filing a notice of
appeal.
II. STANDARD OF REVIEW
II. STANDARD OF REVIEW
This appeal contests liability, not remediation. As
formulated by MHRH, the appeal turns on whether there was
sufficient evidence to permit a verdict in plaintiff's favor.
Thus, appellate review is plenary. See Rolon-Alvarado v.
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Municipality of San Juan, 1 F.3d 74, 77 (1st Cir. 1993); Jordan-
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Milton Mach., Inc. v. F/V Teresa Marie, II, 978 F.2d 32, 34 (1st
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Cir. 1992). A reviewing court applies the same standard that
governed adjudication of the Rule 50 motion below: we
"scrutiniz[e] the proof and the inferences reasonably to be drawn
therefrom in the light most hospitable to the nonmovant,"
Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir. 1987), refraining
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entirely from "differential factfinding," Rolon-Alvarado, 1 F.3d
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at 76. In the process, we may "not consider the credibility of
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3The jury found, inter alia, that plaintiff, apart from her
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handicap or perceived handicap, was qualified to perform the
duties of the IA-MR position; and that the defendant did not
reasonably believe plaintiff lacked such qualifications.
4
witnesses, resolve conflicts in testimony, or evaluate the weight
of the evidence." Wagenmann, 829 F.2d at 200. We can overturn a
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jury's verdict and grant judgment in favor of the verdict loser
only if the evidence, so viewed, is such that reasonable minds
could not help but reach an outcome at odds with the verdict.
See Rolon-Alvarado, 1 F.3d at 77; Veranda Beach Club Ltd.
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Partnership v. Western Sur. Co., 936 F.2d 1364, 1383-84 (1st Cir.
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1991).
In this case, appellant also moved for a new trial. A
trial court's denial of such a motion is examined through a
somewhat different glass. See Wagenmann, 829 F.2d at 200-01.
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But, although appellant makes a passing reference to the trial
court's ruling in this respect, it presents no reasoned
discussion of, or analysis addressed to, the new trial issue.
That ends the matter. We are firm adherents to the principle
"that issues adverted to on appeal in a perfunctory manner, not
accompanied by some developed argumentation, are deemed to have
been abandoned." Ryan v. Royal Ins. Co., 916 F.2d 731, 734 (1st
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Cir. 1990); accord United States v. Zannino, 895 F.2d 1, 17 (1st
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Cir.), cert. denied, 494 U.S. 1082 (1990).
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III. ANALYSIS
III. ANALYSIS
In handicap discrimination cases brought pursuant to
federal law, the claimant bears the burden of proving each
element of her chain. See Joyner by Lowry v. Dumpson, 712 F.2d
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720, 724 (2d Cir. 1983); Sedor v. Frank, 756 F. Supp. 684, 686
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(D. Conn. 1991). The elements derive from section 504 of the
5
Rehabilitation Act, which provides in relevant part: "[n]o
otherwise qualified individual . . . shall, solely by reason of
her or his disability, . . . be subjected to discrimination under
any program or activity receiving Federal financial assistance."
29 U.S.C. 794(a). To invoke the statute in a failure-to-hire
case, a claimant must prove four things: (1) that she applied
for a post in a federally funded program or activity, (2) that,
at the time, she suffered from a cognizable disability, (3) but
was, nonetheless, qualified for the position, and (4) that she
was not hired due solely to her disability. Here, MHRH concedes
that it received substantial federal funding for the operation of
the Ladd Center. We turn, then, to the remaining links that
forge the chain. We subdivide our discussion into five segments,
the first three of which deal directly with the existence vel non
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of a covered impairment (actual or perceived).
A
A
The plaintiff proceeded below on a perceived disability
theory, positing that she was fully able although MHRH regarded
her as physically impaired. These allegations state a cause of
action under the Rehabilitation Act, for the prophylaxis of
section 504 embraces not only those persons who are in fact
disabled, but also those persons who bear the brunt of
discrimination because prospective employers view them as
disabled. See 29 U.S.C. 706(b) (defining a disabled person,
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for Rehabilitation Act purposes, as any person who actually has,
or who "is regarded" as having, a "physical or mental impairment
6
which substantially limits one or more of such persons major life
activities"). Up to this point in time, however, few "perceived
disability" cases have been litigated and, consequently,
decisional law involving the interplay of perceived disabilities
and section 504 is hen's-teeth rare. Thus, this case calls upon
us to explore new frontiers.
Our task is greatly simplified because regulations
implementing the Rehabilitation Act, promulgated by the federal
Equal Employment Opportunity Commission (EEOC), limn three ways
in which a person can qualify for protection under section 504 on
the basis of a perceived disability.4 The trial court charged
the jury that it could consider plaintiff's claim under the first
and third methods, but not under the second. The plaintiff has
not cross-appealed from this determination, so we leave to one
side cases which, unlike this one, arguably come within the
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4The regulations cover persons who are "regarded as having
an impairment," and provide that the quoted phrase refers to
someone who:
(A) has a physical or mental impairment that
does not substantially limit major life
activities but that is treated by a recipient
as constituting such a limitation; (B) has a
physical or mental impairment that
substantially limits major life activities
only as a result of the attitudes of others
toward such impairment; or (C) has none of
the impairments defined in . . . this section
but is treated by a recipient as having such
an impairment.
45 C.F.R. 84.3(j)(2)(iv) (1992). The word "recipient" is a
shorthand reference to a recipient of federal funding, and, in a
failure-to-hire case, signifies a prospective employer whose
"program or activity receiv[es] Federal financial assistance."
29 U.S.C. 794(a).
7
purview of 45 C.F.R. 84.3(j)(2)(iv)(B).
It is noteworthy that section 504's perceived
disability model can be satisfied whether or not a person
actually has a physical or mental impairment. See 45 C.F.R.
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84.3(j)(2)(iv). It is also noteworthy that the regulations
define the term "physical or mental impairment" broadly; it
includes, inter alia, any physiological disorder or condition
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significantly affecting a major bodily system, e.g.,
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musculoskeletal, respiratory, or cardiovascular. See id.
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84.3(j)(2)(i)(A). The term also encompasses disorders and
conditions "whose precise nature is not at present known." Id.,
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App. A, Subpart A(3), at 377 (1992). And the regulations are
open-ended; they do not purport to "set forth [an exclusive] list
of specific diseases and conditions . . . because of the
difficulty of ensuring the comprehensiveness of any such list."
Id.
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This regulatory framework sets the stage for our
analysis. In order to prevail on her perceived disability claim,
Cook had to show either that (1) while she had a physical or
mental impairment, it did not substantially limit her ability to
perform major life activities, 45 C.F.R. 84.3(j)(2)(iv)(A), or,
alternatively, that (2) she did not suffer at all from a
statutorily prescribed physical or mental impairment, id.
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84.3(j)(2)(iv)(C);5 and she also had to prove that MHRH treated
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5The difference between these showings is often not very
great. For example, a reviewing court generally must examine
much the same evidence to determine if plaintiff had an actual,
8
her impairment (whether actual or perceived) as substantially
limiting one or more of her major life activities. Id.
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84.3(j)(2)(iv)(A), (C). Although the jury did not return a
special finding as to whether plaintiff actually had a cognizable
impairment, or was merely regarded by MHRH as having one, the
district court, without objection, charged in the alternative;
hence, plaintiff is entitled to prevail on this appeal so long as
the evidence supports recovery under one of these theories. In
this instance, we believe the record comfortably justifies either
finding. We explain briefly.
On one hand, the jury could plausibly have found that
plaintiff had a physical impairment; after all, she admittedly
suffered from morbid obesity, and she presented expert testimony
that morbid obesity is a physiological disorder involving a
dysfunction of both the metabolic system and the neurological
appetite-suppressing signal system, capable of causing adverse
effects within the musculoskeletal, respiratory, and
cardiovascular systems. On the second hand, the jury could have
found that plaintiff, although not handicapped, was treated by
MHRH as if she had a physical impairment. Indeed, MHRH's stated
reasons for its refusal to hire its concern that Cook's limited
mobility impeded her ability to evacuate patients in case of an
emergency, and its fear that her condition augured a heightened
risk of heart disease, thereby increasing the likelihood of
workers' compensation claims show conclusively that MHRH
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but non-limiting, impairment, or if she had no impairment at all.
9
treated plaintiff's obesity as if it actually affected her
musculoskeletal and cardiovascular systems.6
B
B
Appellant counterattacks on two fronts. Neither foray
succeeds.
1. Mutability. MHRH baldly asserts that "mutable"
1. Mutability.
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conditions are not the sort of impairments that can find safe
harbor in the lee of section 504. It exacuates this assertion by
claiming that morbid obesity is a mutable condition and that,
therefore, one who suffers from it is not handicapped within the
meaning of the federal law because she can simply lose weight and
rid herself of any concomitant disability. This suggestion is as
insubstantial as a pitchman's promise.
We think it is important to recognize that appellant
has no legitimate complaint about the trial court's choice among
the possible variations on the applicable legal theme. The
district judge sang appellant's song, instructing the jury, at
appellant's urging, that a "condition or disorder is not an
impairment unless it . . . constitutes an immutable condition
that the person affected is powerless to control."7 Thus,
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6We note, moreover, that MHRH's decisionmaker, Dr. O'Brien,
voiced the belief that morbid obesity affects "virtually every
[body] system," including the cardiovascular, immune,
musculoskeletal, and sensory systems.
7We believe the lower court's basic proposition that
immutability is a prerequisite to the existence of a permanent
impairment cognizable under section 504, see Cook, 783 F. Supp.
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at 1573 is problematic. Mutability is nowhere mentioned in the
statute or regulations, and we see little reason to postulate it
as an automatic disqualifier under section 504. It seems to us,
10
appellant's mutability complaint is necessarily addressed to the
facts. As such, it is belied by the record.
In deciding this issue, the jury had before it credible
evidence that metabolic dysfunction, which leads to weight gain
in the morbidly obese, lingers even after weight loss. Given
this evidence, the jury reasonably could have found that, though
people afflicted with morbid obesity can treat the manifestations
of metabolic dysfunction by fasting or perennial undereating, the
physical impairment itself a dysfunctional metabolism is
permanent. Cf. Gilbert v. Frank, 949 F.2d 637, 641 (2d Cir.
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1991) (finding that kidney disease controllable by weekly
dialysis constitutes a handicap under 504 of the Rehabilitation
Act); Reynolds v. Brock, 815 F.2d 571, 573 (9th Cir. 1987)
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(holding that epilepsy controllable by medication qualifies as a
handicap under 504). Hence, the jury's resolution of the
mutability question rested on a sufficiently sturdy evidentiary
platform.
There is, moreover, another dissonant chord in
appellant's paean to mutability. Even if immutability were
normally a prerequisite to finding a covered impairment, as the
district court's charge suggested, the logic of a perceived
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instead, that mutability is relevant only in determining the
substantiality of the limitation flowing from a given impairment.
So viewed, mutability only precludes those conditions that an
individual can easily and quickly reverse by behavioral
alteration from coming within section 504. But, in the absence
of a contemporaneous objection, the charge became the law of the
case; and in any event, the district court's error is harmless,
for it worked to appellant's advantage.
11
disability case, as embodied in the regulations, see 45 C.F.R.
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84.3(j)(2)(iv)(C), would nonetheless defeat the doctrine's
application. So long as the prospective employer responds to a
perceived disability in a way that makes clear that the employer
regards the condition as immutable, no more is exigible. So it
is here: based on Dr. O'Brien's testimony, the jury reasonably
could have inferred that he regarded plaintiff's morbid obesity
as an "impairment of a continuing nature," Evans v. City of
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Dallas, 861 F.2d 846, 853 (5th Cir. 1988) (citation omitted), and
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that he rejected her application on that basis.8
2. Voluntariness. Appellant's second assault regains
2. Voluntariness.
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no ground. MHRH asseverates that, because morbid obesity is
caused, or at least exacerbated, by voluntary conduct, it cannot
constitute an impairment falling within the ambit of section 504.
But, this asseveration rests on a legally faulty premise. The
Rehabilitation Act contains no language suggesting that its
protection is linked to how an individual became impaired, or
whether an individual contributed to his or her impairment. On
the contrary, the Act indisputably applies to numerous conditions
that may be caused or exacerbated by voluntary conduct, such as
alcoholism, AIDS, diabetes, cancer resulting from cigarette
smoking, heart disease resulting from excesses of various types,
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8Indeed, Dr. Blackburn, appellant's expert witness,
testified that it is dangerous for a dieter to lose more than 20%
of her total body weight each year. Applying this formula to Dr.
O'Brien's acknowledgment that he would have rehired Cook only
when she reduced her weight to 190 pounds, the jury could have
concluded that appellant treated plaintiff as if her obesity
would have disqualified her from working for over two years.
12
and the like. See, e.g., Severino v. North Fort Myers Fire
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Control Dist., 935 F.2d 1179, 1182 (11th Cir. 1991) (AIDS);
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Teahan v. Metro-North Commuter R. Co., 951 F.2d 511, 517 (2d Cir.
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1991) (drug abuse), cert. denied, 113 S. Ct. 54 (1992); Gallagher
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v. Catto, 778 F. Supp. 570, 577 (D.D.C. 1991) (alcoholism),
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aff'd, 988 F.2d 1280 (D.C. Cir. 1993); see also 45 C.F.R. 84,
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App. A, Subpart A(3) at 377 (cancer; heart disease).
Consequently, voluntariness, like mutability, is relevant only in
determiningwhether a conditionhas a substantiallylimiting effect.
Appellant's premise fares no better as a matter of
fact. The instructions (to which appellant did not object)
specifically restricted disabilities to those conditions "that
the person affected is powerless to control."9 Given the
plethoric evidence introduced concerning the physiological roots
of morbid obesity, the jury certainly could have concluded that
the metabolic dysfunction and failed appetite-suppressing neural
signals were beyond plaintiff's control and rendered her
effectively powerless to manage her weight.
C
C
The next leg of our journey into the terra incognita of
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perceived disabilities requires us to explore whether the jury
properly could have concluded that appellant regarded plaintiff's
condition as substantially limiting one or more of her major life
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9We take no view of the correctness of the instruction. We
simply note that, to the extent that it may be flawed, the
possible error operates in appellant's favor and, is, therefore,
harmless.
13
activities. See 45 C.F.R. 84.3(j)(2)(iv). We bifurcate this
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phase of our itinerary, examining the inquiry's two components in
reverse order.
1. Major Life Activities. The regulations
1. Major Life Activities.
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implementing section 504 define "major life activities" to
include walking, breathing, working, and other manual tasks. See
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id. 84.3(j)(2)(ii). In this case, Dr. O'Brien testified that
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he refused to hire plaintiff because he believed that her morbid
obesity interfered with her ability to undertake physical
activities, including walking, lifting, bending, stooping, and
kneeling, to such an extent that she would be incapable of
working as an IA-MR. On this basis alone, the jury plausibly
could have found that MHRH viewed plaintiff's suspected
impairment as interfering with major life activities. See, e.g.,
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Perez v. Philadelphia Housing Auth., 677 F. Supp. 357, 360-61
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(E.D.Pa. 1987) (finding that abilities to walk, sit, and stand
constitute major life activities), aff'd, 841 F.2d 1120 (3d Cir.
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1988) (table).
2. Substantiality of Limiting Effect. The court below
2. Substantiality of Limiting Effect.
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instructed the jury that it must decide whether appellant treated
plaintiff as if her condition "substantially limited" one of her
major life activities. Appellant did not object to the district
court's decision to refrain from further definition of the key
phrase, and, absent a contemporaneous objection, a trial court
ordinarily may charge in the language of a statute or regulation
without further elaboration. See United States v. De La Cruz,
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14
902 F.2d 121, 123 (1st Cir. 1990). Thus, we reject out of hand
appellant's insinuations that the lower court erred in neglecting
to afford a more precise definition sua sponte.10
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Proceeding to the merits, we think that the degree of
limitation fell squarely to the jury and that the evidence
warrants its finding that appellant regarded plaintiff as
substantially impaired. By his own admission, Dr. O'Brien
believed plaintiff's limitations foreclosed a broad range of
employment options in the health care industry, including
positions such as community living aide, nursing home aide,
hospital aide, and home health care aide. Detached jurors
reasonably could have found that this pessimistic assessment of
plaintiff's capabilities demonstrated that appellant regarded
Cook's condition as substantially limiting a major life activity
being able to work.
Appellant urges that, in order to draw such a
conclusion, the jury would have had to engage in rank conjecture
because plaintiff applied for, and was rejected from, only one
job. In effect, appellant's argument on this point reduces to
the notion that meeting the statutory test requires, as a
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10We note in passing that the term "substantially limits" is
not defined in the regulations. Some guidance in interpreting
this phrase can perhaps be gleaned by looking to the regulations
implementing the Americans with Disabilities Act, 42 U.S.C.
12101 et seq. (1993). Those regulations indicate that the
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question of whether an impairment is substantially limiting turns
on "(1) the nature and severity of the impairment, (2) the
duration or expected duration of the impairment, and (3) the
[actual or expected] permanent or long term impact . . . of, or
resulting from, the impairment." 29 C.F.R. 1630, App. at 403
(1992).
15
preliminary matter, that an individual unsuccessfully seek a
myriad of jobs. We cannot accept that notion for several
reasons. First, such a requirement is contrary to the plain
reading of the statute and regulations. Under the "regarded as"
prong of section 504, a plaintiff can make out a cognizable
perceived disability claim by demonstrating that she was treated
as if she had an impairment that substantially limits a major
life activity. See 45 C.F.R. 84.3(j)(2)(iv)(C). The
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Rehabilitation Act simply does not condition such claims on
either the quantum of a plaintiff's application efforts or on her
prospects of finding other employment. By way of illustration,
suit can be brought against a warehouse operator who refuses to
hire all turquoise-eyed applicants solely because he believes
that people with such coloring are universally incapable of
lifting large crates, notwithstanding that other warehousemen
might hire the applicants or that the recalcitrant firm itself
might hire them for other, more sedentary posts. And placing
claims in this perspective makes good sense. The Rehabilitation
Act seeks not only to aid the disabled, but also to "eliminate
discrimination on the basis of handicap." 45 C.F.R. 84.1.
Then, too, conditioning fulfillment of the
"substantially limits" test on multiple rejections would be
tantamount to saying that the law venerates the performance of
obviously futile acts a proposition we consistently have
refused to espouse. See, e.g., Northern Heel Corp. v. Compo
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Indus., Inc., 851 F.2d 456, 461 (1st Cir. 1988) (stating that
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16
"[t]he law should not be construed idly to require parties to
perform futile acts or to engage in empty rituals); see also
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Gilbert v. City of Cambridge, 932 F.2d 51, 60 (1st Cir.)
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(discussing "futility exception" to permit application
requirement), cert. denied, 112 S. Ct. 192 (1991).
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We think it follows that each case must be determined
on its own facts. It also follows that an applicant need not
subject herself to a lengthy series of rejections at the hands of
an insensitive employer to establish that the employer views her
limitations as substantial. If the rationale proffered by an
employer in the context of a single refusal to hire adequately
evinces that the employer treats a particular condition as a
disqualifier for a wide range of employment opportunities, proof
of a far-flung pattern of rejections may not be necessary. Put
in slightly more concrete terms, denying an applicant even a
single job that requires no unique physical skills, due solely to
the perception that the applicant suffers from a physical
limitations that would keep her from qualifying for a broad
spectrum of jobs, can constitute treating an applicant as if her
condition substantially limited a major life activity, viz.,
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working. This is such a case.
The precedents cited by appellant are not to the
contrary. In each of them the court concluded that failure to
qualify for a job possessing unique qualifications did not
constitute a substantial limitation of a major life activity.
See, e.g., Welsh v. City of Tulsa, 977 F.2d 1415, 1417-18 (10th
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17
Cir. 1992) (upholding termination as a fire fighter due to minor
sensory loss in one hand); Daley v. Koch, 892 F.2d 212, 214-16
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(2d Cir. 1989) (sustaining rejection as police officer because of
personality traits of poor judgment and irresponsibility);
Tudyman v. United Airlines, 608 F. Supp. 739, 746 (C.D. Cal.
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1984) (sustaining termination as airline steward due to
bodybuilder's bulk). These positions are a far cry from the IA-
MR post that Cook coveted. We think there is a significant legal
distinction between rejection based on a job-specific perception
that the applicant is unable to excel at a narrow trade and a
rejection based on more generalized perception that the applicant
is impaired in such a way as would bar her from a large class of
jobs. Cf. Welsh, 977 F.2d at 1419 (noting that factors relevant
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to determining whether an impairment is substantially limiting
include "(1) the number and type of jobs from which the impaired
individual is disqualified, (2) the geographical area to which
the individual has reasonable access, and (3) the individual's
job expectations and training") (citation omitted).
Here, the jury rationally could have concluded that
MHRH's perception of what it thought to be plaintiff's
impairment, as exhibited in its refusal to hire her for the IA-MR
position, foreclosed a sufficiently wide range of jobs to serve
as proof of a substantial limitation. Accordingly, the district
court appropriately refused to direct a verdict for the employer.
D
D
The next stop on our odyssey requires us to consider
18
whether there was sufficient evidence for the jury to conclude
that plaintiff was "otherwise qualified" to work as an IA-MR.
Once again, an affirmative answer emerges.
"An otherwise qualified person is one who is able to
meet all of a program's requirements in spite of h[er] handicap."
Southeastern Community Coll. v. Davis, 442 U.S. 397, 406 (1979).
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Although an employer is not required to be unfailingly correct in
assessing a person's qualifications for a job, see Bento v.
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I.T.O. Corp., 599 F. Supp. 731, 744-45 (D.R.I. 1984), an employer
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cannot act solely on the basis of subjective beliefs. An
unfounded assumption that an applicant is unqualified for a
particular job, even if arrived at in good faith, is not
sufficient to forestall liability under section 504. See Pushkin
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v. Regents of Univ. of Colo., 658 F.2d 1372 (10th Cir. 1981)
__________________________
(rejecting good faith as a defense under 504 because
"[d]iscrimination on the basis of handicap usually . . . occurs
under the guise of extending a helping hand or a mistaken,
restrictive belief as to the limitations of handicapped
persons"); see also Carter v. Casa Central, 849 F.2d 1048, 1056
___ ____ ______ ____________
(7th Cir. 1988) (explaining that "[a]n employer's concerns about
the abilities of a handicapped employee . . . must be based on
more than `reflective' reactions about a handicapped individual's
ability to do the job, no matter how well-intentioned"). The
employer's belief must be objectively reasonable. It cannot rest
on stereotypes and broad generalizations. After all, "mere
possession of a handicap is not a permissible ground for assuming
19
an inability to function in a particular context." Davis, 442
_____
U.S. at 405 (footnote omitted).
Appellant's position, insofar as we can understand it,
is that plaintiff's morbid obesity presented such a risk to
herself and the Ladd Center's residents that she was not
otherwise qualified, or, in the alternative, that it was
reasonable for appellant to believe that she was not otherwise
qualified. This protestation is undone by three independent
considerations.
First, because appellant's evidence on this point
serves, at most, to generate a fact question as to whether
plaintiff was otherwise qualified, the responsibility for
resolving this dispute properly fell to the jury. See Arline v.
___ ______
School Bd. of Nassau County, 480 U.S. 283, 287 (1987). The jury
____________________________
found specially that appellant did not reasonably believe that
plaintiff lacked the requisite qualifications. See supra note 3.
___ _____
Having carefully scrutinized the record, we see no principled way
in which we can scuttle this finding.
Second, we question whether appellant has put forward
evidence sufficient to beget a factual question. At trial, MHRH
failed to make specific inquiries into plaintiff's physical
abilities and instead relied on generalizations regarding an
obese person's capabilities. This is the strict inverse of the
"fact-specific and individualized" inquiry, Arline, 480 U.S. at
______
287, that the Rehabilitation Act requires. Indeed, appellant's
"evidence" comprises a graphic illustration of an employment
20
decision based on stereotyping exactly the sort of employment
decision that the Rehabilitation Act seeks to banish.
Third, one of appellant's justifications for rejecting
plaintiff its concern over high absenteeism and increased
workers' compensation costs is itself a prohibited basis for
denying employment. Unless absenteeism rises to a level such
that the applicant is no longer "otherwise qualified," the
Rehabilitation Act requires employers to bear absenteeism and
other miscellaneous burdens involved in making reasonable
accommodationsin ordertopermit theemploymentof disabledpersons.11
We will not paint the lily. Several pieces of evidence
loom large on this issue. Plaintiff received a satisfactory
report following the physical examination conducted by
appellant's own nurse; the IA-MR position for which she applied
did not demand any elevated level of mobility, lifting ability,
size, or stature; plaintiff had satisfactorily performed all her
duties and responsibilities as an IA-MR during her previous five
____________________
11Implicit in the Rehabilitation Act's requirement that an
employer who receives federal funds make reasonable
accommodations to allow a disabled employee to perform her job is
the concept that the employer must absorb some costs in working
____
toward the goal of providing meaningful employment opportunities
for disabled persons. See, e.g., 45 C.F.R. 84.12 (requiring
___ ____
accommodations such as "job restructuring," "modified work
schedules," "acquisition or modification of equipment or
devices," and the like). Such accommodations are necessary
unless the employer can "demonstrate that the accommodation would
impose an undue hardship," which is determined, inter alia, by
_____ ____
the "nature and cost" of the proposed accommodation. Id.,
___
84.12(b)(2); see, e.g., Nelson v. Thornburgh, 567 F. Supp. 369,
___ ____ ______ __________
379 (E.D. Pa. 1983) (performing requisite balancing), aff'd, 732
_____
F.2d 146 (3rd Cir. 1984), cert. denied, 469 U.S. 1188 (1985).
_____ ______
21
years of employment;12 and MHRH acknowledged that those duties
and responsibilities have not changed. From this, and other,
evidence, we believe that the jury lawfully could have found
plaintiff, apart from any impairment, "otherwise qualified" to
work as an IA-MR.
E
E
Our last port of call requires that we determine
whether the evidence justified a finding that MHRH turned down
plaintiff's request for employment due solely to her morbid
obesity. This final piece of the puzzle is straightforward.
MHRH has not offered a hint of any non-weight-related
reason for rejecting plaintiff's application. Rather, it has
consistently conceded that it gave plaintiff the cold shoulder
because Dr. O'Brien denied her medical clearance. The record is
pellucid that Dr. O'Brien's refusal had three foci, each of which
related directly to plaintiff's obesity.13 On this record,
there was considerable room for a jury to find that appellant
declined to hire Cook "due solely to" her perceived handicap.
IV. CONCLUSION
IV. CONCLUSION
____________________
12To be sure, plaintiff was not then morbidly obese in the
literal sense. Nevertheless, at times during her prior tours of
duty she weighed almost as much as she weighed when she reapplied
in 1988.
13The point is well illustrated in MHRH's appellate brief,
which states that Dr. O'Brien "declined to give medical clearance
to hire the plaintiff based solely on her weight. Dr. O'Brien
testified that there were three reasons for his decision: First,
he believed that she herself was at risk based on her obesity;
second, he believed that she could put the retarded residents at
risk in emergency situations; third, he was concerned about the
overall cost of Worker's Compensation injuries."
22
We need go no further. In a society that all too often
confuses "slim" with "beautiful" or "good," morbid obesity can
present formidable barriers to employment. Where, as here, the
barriers transgress federal law, those who erect and seek to
preserve them must suffer the consequences. In this case, the
evidence adduced at trial amply supports the jury's determination
that MHRH violated section 504 of the Rehabilitation Act. And
because MHRH refused to hire plaintiff due solely to her morbid
obesity, there is no cause to disturb either the damage award or
the equitable relief granted by the district court.
Affirmed.
Affirmed.
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