December 13, 1995 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 95-1313
ANDRE GRENIER,
Plaintiff - Appellant,
v.
CYANAMID PLASTICS, INC.,
Defendant - Appellee.
ERRATA SHEET ERRATA SHEET
The opinion of this Court issued on November 27, 1995, is amended as follows:
1. On page 12, change footnote 3 to read: change
Both parties refer us to this Guidance although it was published after the decision by Cyro to reject Grenier's application. We note that a revised version of the Guidance was issued October 10, 1995, after oral argument in this case. See Equal Employment Opportunity Comm'n, Enforcement
Guidance: Pre-Employment Disability-Related Questions and
Medical Examinations (Oct. 10, 1995) (reprinted in EEOC
Compl. Man. (CCH) 6093, at 5371).
2. On page 13, lines 2-3, delete this parenthetical: delete
(reprinted in EEOC Compl. Man. (CCH) 6903, at 5371, and in
Americans with Disabilities Act Manual (BNA) No. 29)
3. On page 22, end of 6th line from bottom, add "1st Cir." to add parenthetical, so that it reads:
(1st Cir. 1995)
4. On page 24, 5th line from bottom, end of parenthetical, change "at 355" to "at 347-48". change
5. On page 25, end of line 4, insert a footnote: insert
On October 10, 1995, subsequent to oral argument, the EEOC issued a new Guidance. Although neither party has argued that we ought to consider this newest guidance, we note that
the EEOC has revised its interpretation of the ADA and now reaches the same conclusion. Under a section headed "The Pre-Offer Stage," the EEOC now explains:
However, when an employer could reasonably believe that an applicant will need reasonable accommodation to perform the functions of the job, the employer may ask that applicant certain limited questions. Specifically, the employer may ask whether s/he needs
reasonable accommodation and what type of reasonable
accommodation would be needed to perform the functions
of the job.
Enforcement Guidance: Pre-Employment Disability-Related
Questions and Medical Examinations (Oct. 10, 1995) (emphasis
in original).
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Selya and Boudin, Circuit Judges,
and Saris,* District Judge.
Roderick H. Potter, with whom Potter, Prescott, Jamieson &
Nelson was on brief for appellant.
Jerrol A. Crouter, with whom Christopher G. Jernigan and
Drummond Woodsum & MacMahon were on brief for appellee.
November 27, 1995
* Of the District of Massachusetts, sitting by designation.
SARIS, District Judge. Appellant Andre Grenier SARIS, District Judge.
("Grenier") was employed as an electrician for Cyanamid Plastics,
Inc., d/b/a Cyro Industries ("Cyro"), for several years before he
was placed on disability leave due to psychological problems.
After his employment had officially terminated by automatic
operation of the company disability policy, but while still
receiving disability benefits, Grenier notified Cyro that he was
an individual with a disability who needed reasonable
accommodation to return to work and applied to be re-hired into
his previous position. Before making him a job offer, Cyro
requested Grenier to provide certification from his physician
stating that he was prepared to return to work without
restrictions or identifying the reasonable accommodations
necessary for him to return to work. When Grenier failed to do
so, his application was rejected.
The difficult issue on appeal is whether Cyro violated
the Americans with Disabilities Act ("ADA"), 42 U.S.C.
12112(d), which prohibits certain preemployment medical
examinations and inquiries of a job applicant. Concluding that
Cyro did not violate this provision of the ADA, we affirm the
district court's entry of summary judgment for Cyro.
I. STATEMENT OF THE CASE I. STATEMENT OF THE CASE
A. Facts A. Facts
Reviewing the factual record in the light most
favorable to the nonmoving party, as we must at summary judgment,
see Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.
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1991), cert. denied, 504 U.S. 985 (1992), we treat the following
facts as undisputed.
1. The Disability Leave 1. The Disability Leave
Andre Grenier worked as a shift electrician for Cyro at
its plant in Sanford, Maine, from 1980 to 1989. Grenier's
technical skill as an electrician was good. In 1989, Grenier and
several other employees were questioned about vandalism of plant
machinery that had occurred during their shift. Grenier
responded to the questioning "in a highly emotional and
irrational manner" and failed to report to his next scheduled
shift. He informed his supervisor, William Kennedy, that he was
afraid to be on a shift without an alibi, and that he was "losing
it." Stating that Grenier's behavior was "very disruptive and
potentially dangerous," Kennedy placed Grenier on medical leave
in November 1989. This leave was explicitly "until such a time
when you can be cleared by our medical department to return to
work." Kennedy informed Grenier in writing that in order to
return he would have to go through the standard reentry screening
process, including permitting his doctors to discuss the
specifics of his case with the company doctor.
In August 1990, Grenier mailed the first of a series of
letters to Cyro, including a one-page letter received September
27, 1990, and a six-page "statement" of April 11, 1991. In these
letters, Grenier criticized the plant manager Skip Brogli and
complained that company actions in investigating vandalism at the
plant and placing him on medical leave had caused him to suffer
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increased anxiety. He attacked several policies of the plant
that he claimed were a "constant source of aggravation" to him.
He also discussed in detail various collateral issues, such as
the criminal charges faced by the son of a Cyro manager, a sexual
harassment investigation of a fellow employee, and various
transfers of Cyro managers.
Grenier informed Cyro in his letters that his analyst
Dr. Stewart "describes me as being Narcissistic," but noted that
"I prefer the word 'proud.'" He stated that "Dr. Stewart also
describes me as having 'somewhat paranoid beliefs concerning the
malevolent intent of the (relatively new) management.'" He also
noted that "[a]fter a year and a half of being unable to work, my
analyst feels that it would be in my best interests to quit my
job and find another . . . that I've become obsessed with this
Skip guy [manager Skip Brogli]." He stated repeatedly, however,
that he refused to quit his job.
"As a final note," wrote Grenier in one letter, dated
April 11, 1991, "I want to point that [sic], although Dr. Stewart
is indicating that he feels that I am not totally disabled, I
still feel convinced that I am." Grenier realized his statement
had "some strong elements of paranoia," but claimed that "the
paranoia is not just my own . . . it has become fairly rampant
throughout the workforce." And:
The continuing incidents of vandalism, recently, should be a clear signal to Corporate headquarters that Cyro Industries, in Sanford, Me. is still more than just a little bit sick.
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There is still some hope, however, if only the right steps are taken. And unless the right steps are taken, somebody else is going to be hurt, maybe even killed. Of that, I am sure.
Grenier would not voluntarily terminate his employment.
He remained on indefinite disability leave until May 12, 1991,
when his employment at Cyro terminated automatically as a result
of the expiration of his continuous service credits. Cyro
informed Grenier of his termination by letter May 15, 1991.
Grenier received disability benefits from Cyro for a
two-year period ending December 31, 1992. Under the company's
plan, benefits were payable for up to two years if Grenier was
under the regular care of a licensed physician and unable to
perform the duties of his specific job, but benefits would have
continued beyond this period only if the Disability Department
determined that his medical condition prevented him "from working
at any job for which [he was] reasonably qualified to perform."
On December 4, 1992, the Cyro disability department wrote Grenier
that based on information received from an independent medical
examination of July 30, 1992, he was not disabled to this extent
and, therefore, no benefits were payable after January 1, 1993.
2. Application for Re-Employment 2. Application for Re-Employment
In a letter dated December 18, 1992, and addressed to
Robert Lysaght, the Personnel Operations Manager at the Sanford
plant, Grenier asked to be considered an applicant for the job of
shift electrician, his former position. Grenier was still
receiving disability benefits at this time. In this letter,
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which was under the heading "request for employment
accommodation," Grenier stated:
I qualify as an individual with a disability as defined by Federal and State Civil Rights laws.
I understand that CYRO Industries is conducting interviews for the position of shift mechanic in the electrical department. The purpose of this letter is to request accommodation to return to work in the same capacity as I had been working since September of 1980.
. . .
I believe that I should be afforded the opportunity to be accommodated to return to my job, at the very least, for a trial period, to prove that I am able to perform my job.
I believe that, under reasonable circumstances, I should be able to perform in a safe and reliable manner.
In response, Lysaght told Grenier in a January 5, 1993,
letter that "CYRO is not currently accepting applications" but
that the Maine unemployment office would be notified when Cyro
was soliciting applications. In reality, a job notice was posted
on January 4, 1993 -- subsequent to Grenier's request for
consideration as an applicant, but prior to the date of Lysaght's
response. Lysaght requested in his letter:
Since your termination of employment came as a result of the expiration of Continuous Service Credits while you were on an extended medical leave, CYRO would reasonably request that you provide us with certification from a physician that you are prepared to return to work without restrictions or identifying any accommodations that are required for you to return to work at the Sanford location. Of course, any requests for employment
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accommodation will be considered with regard to the reasonableness at the time of the employment interview process.
Therefore, in order to return to work with CYRO Industries you need 1) keep in touch with the Maine Unemployment office in Sanford to learn when CYRO is accepting employment applications; 2) complete an employment application for a position for which you are qualified; and 3) provide CYRO with notice from your physician that you are prepared to return to work without restrictions or identifying those reasonable accommodations that may be necessary.
By letter of January 15, 1993, Grenier forwarded his
therapist's certification that he was disabled and requested to
discuss accommodation with Cyro Vice President William Loman. He
also maintained that his employment had never terminated, and
argued that the May 15, 1991, letter that informed him of the
termination "simply implies that my employment is terminated."
Cyro's New Jersey-based Personnel Director Thomas Ayres
responded by letter of January 25th by informing Grenier that he
must follow the steps outlined in Lysaght's January 5th letter in
order to be considered for employment.
Additional correspondence ensued. Grenier asserted
that he was "capable of performing the essential functions of the
job with or without accommodation" but failed to describe how he
would perform and refused to provide medical documentation. Cyro
continued to request the documentation.
On February 22, 1993, Cyro mailed Grenier an employment
application, which Grenier promptly returned. By letter of
March 15, 1993, Cyro rejected Grenier's application for
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employment, stating that, "[a]fter careful review of all relevant
information, your request for employment consideration is
denied."
B. Proceedings Below B. Proceedings Below
Grenier filed a two-count complaint in the District of
Maine on June 23, 1994, claiming that Cyro violated the ADA and
the Maine Human Rights Act, 5 M.R.S.A. 4551 et seq.1 Cyro
filed a motion for summary judgment on the issue of pre-offer
inquiries, and Grenier opposed the motion on the same grounds.
The District Court entered summary judgment for Cyro. Grenier
argues on appeal that Cyro's pre-offer inquiry violated the ADA
and that there are genuine issues of material fact with respect
to his claim that Cyro's failure to hire him constituted
intentional discrimination.
II. ANALYSIS II. ANALYSIS
A. Standard of Review A. Standard of Review
This court reviews the district court's grant of
summary judgment de novo. The standard of review has been
clearly articulated by this court as follows:
Since appellate review of a grant of summary judgment is plenary, the court of appeals, like the district court, "must view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor." An appellate panel is not restricted to the district court's reasoning but can affirm a summary judgment on any independently sufficient ground. In the end,
1 As the parties acknowledge that federal law controls construction of the state claim, we do not discuss it separately.
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the entry of summary judgment can be upheld only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991)
(citations omitted), cert. denied, 504 U.S. 985 (1992).
B. Statutory Framework B. Statutory Framework
A close analysis of the statutory and regulatory
framework is essential to determine the employer's obligations
under the ADA when dealing with the known disability of a job
applicant.
1. The Statute 1. The Statute
The ADA, 42 U.S.C. 12101 et seq., was enacted "to
provide a clear and comprehensive national mandate for the
elimination of discrimination against individuals with
disabilities." 42 U.S.C. 12101(b). In the context of
employment, the ADA provides:
(a) General rule. No covered entity shall General rule. discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
42 U.S.C. 12112(a).
With regard to medical examinations and inquiries, the
ADA sets up separate rules for pre-offer job applications,
12112(d)(2); post-offer pre-employment examinations,
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12112(d)(3); and inquiries of current employees, 12112(d)(4).
Section 12112(d) provides as follows:
(d) Medical examinations and inquiries. (1) In general. The prohibition against discrimination as referred to in [ 12112(a)] shall include medical examinations and inquiries.
(2) Preemployment.
(A) Prohibited examination or inquiry. Except as provided in paragraph (3), a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.
(B) Acceptable inquiry. A covered entity may make preemployment inquiries into the ability of an applicant to perform job- related functions.
Pursuant to paragraph (3), an employer may "require a medical
examination after an offer of employment has been made to a job
applicant and prior to the commencement of employment duties, and
may condition an offer of employment on the results of such
examination" only in certain circumstances.2 Once an applicant
2 This section provides in relevant part:
(3) Employment entrance examination. A covered entity may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of employment duties of such applicant, and may condition an offer of employment on the results of such examination, if --
(A) all entering employees are subjected to such an examination regardless of disability;
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becomes an employee, an employer is prohibited from requiring a
medical examination or making inquiries of an employee as to
whether he is an "individual with a disability or as to the
nature or severity of the disability unless such examination or
inquiry is shown to be job-related and consistent with business
necessity." 12112(d)(4). An employer may make "inquiries into
the ability of an employee to perform job-related functions."
12112(d)(4)(B).
2. The Regulations 2. The Regulations
The regulations adopted under the ADA by the Equal
Employment Opportunity Commission ("EEOC") provide that an
employer may make "pre-employment inquiries into the ability of
an applicant to perform job-related functions, and/or may ask an
applicant to describe or to demonstrate how, with or without
reasonable accommodation, the applicant will be able to perform
job-related functions." 29 C.F.R. 1630.14(a). The EEOC
crafted 1630.14(a) in response to comments on the proposed
regulation from employers asking "whether an employer may ask how
an individual will perform a job function when the individual's
known disability appears to interfere with or prevent performance
of job-related functions." 56 Fed. Reg. 35725, 35732 (1991).
The EEOC published as an appendix to the regulations a
section-by-section "Interpretive Guidance on Title I of the
(B) information obtained [is kept confidential, with limited exceptions]; and
(C) the results of such examination are used only in accordance with this subchapter.
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Americans with Disabilities Act." 29 C.F.R. Pt. 1630, App. We
have looked to this source in interpreting the ADA. See Carparts
Distrib. Ctr., Inc. v. Automobile Wholesaler's Ass'n, 37 F.3d 12,
16 (1st Cir. 1994). Such administrative interpretations of the
Act by the enforcing agency, "while not controlling upon the
courts by reason of their authority, do constitute a body of
experience and informed judgment to which courts and litigants
may properly resort for guidance." Meritor Sav. Bank, FSB v.
Vinson, 477 U.S. 57, 65 (1986).
The EEOC explains the regulation 1630.14(a) as
follows:
An employer may also ask an applicant to describe or to demonstrate how, with or without reasonable accommodation, the applicant will be able to perform job-related functions. Such a request may be made of all applicants in the same job category regardless of disability. Such a request may also be made of an applicant whose known disability may interfere with or prevent the performance of a job-related function, whether or not the employer routinely makes such a request of all applicants in the job category. For example, an employer may ask an individual with one leg who applies for a position as a home washing machine repairman to demonstrate or to explain how, with or without accommodation, he would be able to transport himself and his tools down the basement stairs. However, the employer may not inquire as to the nature or severity of the disability. Therefore, for example, the employer cannot ask how the individual lost the leg or whether the loss of the leg is indicative of an underlying impairment.
3. The Guidance 3. The Guidance
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An EEOC Enforcement Guidance, dated May 19, 1994,3
further aids our interpretation of the rules concerning pre-offer
inquiries of applicants with known disabilities. See Equal
Employment Opportunity Comm'n, Enforcement Guidance:
Preemployment Disability-Related Inquiries and Medical
Examinations Under the Americans with Disabilities Act of 1990
(EEOC Notice 915.002) (May 19, 1994) [hereinafter Guidance]. The
Guidance was designed "for interim use by EEOC investigators,
pending coordination with other federal agencies." Id., Exec.
Summ. It is not binding law, but as a detailed analysis of the
relevant ADA provisions, it aids our interpretation of the
statute.
In a section entitled "When the Employer Could
Reasonably Believe that Known Disability Will Interfere With
Performance of Job Related Functions," the Guidance provides:
When an employer could reasonably believe that an applicant's known disability will interfere with the performance of a job- related function, the employer may ask that particular applicant to describe or demonstrate how s/he would perform the function, with or without reasonable accommodation. Such inquiries or requests are not prohibited pre-offer inquiries.
3 Both parties refer us to this Guidance although it was published after the decision by Cyro to reject Grenier's application. We note that a revised version of the Guidance was issued October 10, 1995, after oral argument in this case. See
Equal Employment Opportunity Comm'n, Enforcement Guidance: Pre-
Employment Disability-Related Questions and Medical Examinations
(Oct. 10, 1995) (reprinted in EEOC Compl. Man. (CCH) 6093, at
5371).
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Example 5: R may ask an applicant with one
leg who applies for a job as a telephone linesperson to describe or demonstrate how she would perform the duties of the job, because R may reasonably believe that having one leg interferes with the ability to climb telephone poles.
In some cases, an applicant may not have an obvious disability, but may voluntarily disclose that s/he has a hidden disability that would reasonably appear to interfere with performance of a job-related function. In such cases, the employer may ask the applicant to describe or demonstrate performance, with or without reasonable accommodation. Such inquiries or requests are not prohibited pre-offer inquiries.
Example 6: An applicant for the job of
repairing underground sewer lines voluntarily discloses that she has severe claustrophobia. R may reasonably determine that severe claustrophobia would interfere with an employee's ability to work within the confined space of an underground sewer. R may therefore ask the applicant to describe or demonstrate how she would perform the job, with or without reasonable accommodation.
Guidance IV.B.5.b.
The EEOC explains that allowing an employer to ask an
applicant with a known disability to describe or demonstrate how
he would perform a job-related function "is in the interest of
both applicants and employers." Id. at n.23.
Employers are entitled to know whether an applicant with an apparently interfering disability can perform job-related functions, with or without reasonable accommodation. It is in the interest of an applicant with such a disability to describe or demonstrate performance in order to dispel notions that s/he is unable to perform the job because of the disability.
Id.
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In a section entitled "Inquiries Concerning Need for
Accommodation and Requests for Documentation if Applicant Asks
for Accommodation," the Guidance permits an employer during the
hiring process to require an applicant "to inform the employer of
any reasonable accommodation needed" to take an "interview" or
perform a "job demonstration." Id. IV.B.6.a. With respect to
accommodations for the job, as opposed to accommodations for the
hiring process, the Guidance explains:
An employer may ask an applicant whether s/he can perform specified job-related functions with or without reasonable accommodation, because these inquiries elicit information about an applicant's ability to perform job
functions, not information about an applicant's disability. An employer also may ask an applicant to describe or demonstrate, at the pre-offer stage, how s/he would perform job-related functions, with or without reasonable accommodation, because these inquiries elicit information about an applicant's ability, not information about an
applicant's disability. . . .
However, at the pre-offer stage, an employer may not generally inquire whether the applicant needs reasonable accommodation for the job. For example, an employer may not make inquiries such as, "Would you need reasonable accommodation in this job?" or "Would you need reasonable accommodation to perform this specific function?" Such inquiries are likely to elicit information about the existence of a disability because, generally, only an individual with a disability would require an accommodation. Therefore, these inquiries are prohibited at the pre-offer stage.
If an applicant has voluntarily disclosed that s/he would need a reasonable accommodation to perform the job, the employer still may not make inquiries at the pre-offer stage about the type of required
reasonable accommodation (except where the
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applicant has requested reasonable accommodation as part of a required pre-offer job demonstration, as described above).
Id. IV.B.6.a (emphasis in original).
When an applicant requests reasonable accommodation, an
employer may request "documentation from an appropriate
professional (e.g., a doctor, rehabilitation counsellor, etc.),
stating that s/he has a disability." Id. IV.B.6.b. An
employer may also require documentation as to an applicant's
functional limitations "for which reasonable accommodation is
requested (and which flow from the disability.)" Id. The EEOC
reasoned that such requests are not prohibited pre-offer
inquiries because:
Requesting such documentation is consistent with the ADA's legislative history. For example, Congress specifically anticipated that when an applicant requests reasonable accommodation for the application process (or when an employee requests reasonable accommodation for the job), the employer
should engage in an interactive process with
the individual to determine an effective
reasonable accommodation.
Id. (emphasis added). As an example, the EEOC stated that an
employer may at the pre-offer stage require an applicant to
obtain documentation from a professional stating she cannot lift
a certain amount and needs reasonable accommodation. Id.
C. The Pre-Offer Inquiry C. The Pre-Offer Inquiry
With this statutory and regulatory framework in mind,
we turn to Grenier's claim that Cyro's requirement of a medical
certification violates ADA 12112(d).
1. Getting Along 1. Getting Along
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First, Grenier argues that Cyro's letter requiring a
medical certification constituted an impermissible inquiry
because the request was not for information about how he would
perform the job-related functions. Rather than ask "whether he
possessed the requisite skills to perform the electrical and
electronic tasks called for in the job description," Grenier
complains, "Cyro assumed that his ability to perform job related
functions was called into question by his history of mental
illness." Grenier argues that Cyro already had knowledge that he
was able to do the essential job-related functions because he had
worked there for nine years and was "technically qualified."
Grenier incorrectly assumes that the essential
functions of the job of shift electrician require only technical
ability and experience as an electrician. "The term essential
functions means the fundamental job duties of the employment
position the individual with a disability holds or desires." 29
C.F.R. 1630.2(n)(1). Technical skills and experience are not
the only essential requirements of a job. See Pesterfield v.
Tennessee Valley Auth., 941 F.2d 437, 441-42 (6th Cir. 1991) ("at
least the ability to get along with supervisors and co-workers"
was essential function of job as tool room attendant); Mancini v.
General Electric Co., 820 F. Supp. 141, 147 (D. Vt. 1993)
("ability to follow the orders of superiors is an essential
function of any position"); Pickard v. Widnall, 1994 WL 851282,
*9 (S.D. Ohio, Dec. 15, 1994) (No. C-3-94-40) ("mental and
emotional stability" was essential job function for military
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position); Johnston v. Morrison, 849 F. Supp. 777, 778 (N.D. Ala.
1994) (waitress who was unable to handle pressures of working on
crowded nights or memorizing frequent menu changes was unable to
perform essential functions of job); cf. Bento v. I.T.O. Corp. of
Rhode Island, 599 F. Supp. 731, 742-43 (D.R.I. 1984) (although
there is "no question that plaintiff . . . is qualified to do the
job, at least in the sense of knowing how to perform it," he is
not necessarily "otherwise qualified" within the meaning of the
Rehabilitation Act).
More specifically, an employer may reasonably believe
that an employee known to have a paranoia about the plant manager
is not able to perform his job. Cf. Voytek v. University of
California, 1994 WL 478805, *15, 6 A.D.D. 1137, 1161 (N.D. Cal.,
Aug. 25, 1994) (No. C-9203465 EFL) (holding that employee was
legally denied re-employment after period of disability where he
"could not continue to perform all of the tasks assigned to him,"
due in part to "the ongoing conflict with his supervisor").
The ADA does not require an employer to wear blinders
to a known disability at the pre-offer stage, but permits an
"interactive process" beneficial to both the employer and
applicant. The EEOC regulations recognize this by providing that
an employer can ask an applicant with a known disability to
describe or demonstrate how "with or without reasonable
accommodation" the applicant will be able to do the job. 29
C.F.R. 1630.14(a). Here, Cyro knew that the applicant had just
recently been unable to perform his specific job at Cyro as a
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result of a mental disability for which he was still receiving
benefits from Cyro and undergoing psychiatric treatment. Indeed,
Grenier himself had claimed he was totally disabled from
performing any work, not just his specific job at Cyro. Cf.
August v. Offices Unlimited, Inc., 981 F.2d 576, 581-82 (1st Cir.
1982) (man who had asserted on insurance forms that he was
"totally disabled" and had presented no contrary evidence could
not be found to be "qualified handicapped person" under
Massachusetts anti-discrimination statute, Mass. Gen. L. ch.
151B); Reigel v. Kaiser Found. Health Plan, 859 F. Supp. 963, 969
(E.D.N.C. 1994) (woman who certified to her disability insurer
that she could not perform her job was estopped from asserting
that during the same time period she had been qualified to
perform for purposes of the ADA). We hold that this employer did
not violate the prohibition in 12112(d) by inquiring into
Grenier's ability to function effectively in the workplace and to
get along with his co-workers and supervisor, rather than just
his technical qualifications as an electrician.4
2. The Medical Certification 2. The Medical Certification
4 We note that the inquiry made by Cyro would not necessarily be permissible under different circumstances, such as where the employer was less familiar with the nature or extent of the applicant's disability, or with the effect of the disability on job performance. As the EEOC recognized when preparing the Guidance, "there are sometimes subtle distinctions between a permissible and a prohibited pre-offer inquiry." Guidance
IV.B.6.b. See generally Paul F. Mickey, Jr. & Maryelena Pardo,
Dealing with Mental Disabilities Under the ADA, 9 Lab. Law. 531
(1993); Janet L. Hamilton, New Protections for Persons with
Mental Illness in the Workplace under the Americans with
Disabilities Act of 1990, 40 Clev. St. L. Rev. 63, 92 (1992).
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Next Grenier argues that Cyro's pre-offer requirement
of a medical certification is an illegal pre-offer inquiry under
the ADA because the regulations "do not by their terms permit a
request to someone other than the applicant at the preoffer
stage."
As a preliminary matter, we address whether a request
for medical certification constitutes a "medical examination" or
whether it is instead an "inquiry." The ADA prohibits an
employer from conducting any pre-offer "medical examination" of a
job applicant. 12112(d)(2). This prohibition applies to
psychological examinations. See Guidance at n. 47 (citing H.R.
Rep. No. 485 (Pt. 3), 101st Cong., 2d Sess. 46 (1990), reprinted
in 1990 U.S.C.C.A.N. vol. 4, Legis. Hist., 445, 469). The EEOC
defined "medical examination" as follows:
Medical examinations are procedures or tests that seek information about the existence, nature, or severity of an individual's physical or mental impairment, or that seek information regarding an individual's physical or psychological health.
Guidance V.A. We conclude that a certification from a treating
psychiatrist that does not necessitate new tests or procedures is
best analyzed as an "inquiry" rather than as a "medical
examination."
Also, contrary to Grenier's assertion, the EEOC
interprets the ADA to allow certain inquiries of third parties at
the pre-offer stage. With respect to "inquiries to third parties
regarding an applicant's medical condition," the Guidance
provides that "[a]t the pre-offer stage", an employer can "ask a
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third party (e.g., a reference) anything that it could ask the
applicant directly." Guidance IV.B.15. Further, the EEOC
finds that requests for documentation from health care providers
to confirm the existence of a disability are permissible where,
as here, requests for reasonable accommodation are made in
connection with the hiring process or job. See Guidance
IV.B.6.b. We conclude that an employer may request that an
applicant provide medical certification from doctors of ability
to perform so long as the inquiry does not otherwise run afoul of
12112(d)(2)(A).
The primary thrust of Grenier's appeal is that this
inquiry -- the requirement of medical certification of ability to
perform from a former disabled employee applying to return to
work with the same employer -- violates 12112(d)(2)(A) in that
it constitutes an inquiry of a "job applicant as to whether such
applicant is an individual with a disability or as to the nature
or severity of such disability."
The Eighth Circuit recently addressed a similar factual
situation in Brumley v. Pena, 62 F.3d 277 (8th Cir. 1995), a case
decided under the Rehabilitation Act, and applicable
regulations.5 Brumley was a mentally disabled former employee
5 The ADA extended to the private sector the essential substantive provisions of the Rehabilitation Act of 1973, 29 U.S.C. 791-794. See Chai R. Feldblum, Medical Examinations
and Inquiries under the Americans with Disabilities Act: A View
from the Inside, 64 Temple L. Rev. 521, 521-22 (1991). Congress
intended that Rehabilitation Act precedent be considered by the courts in interpreting the ADA. See 42 U.S.C. 12201(a); see
also Ennis v. National Ass'n of Business & Educational Radio,
Inc., 53 F.3d 55, 57 (4th Cir. 1995) ("To the extent possible, we
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of the Federal Aviation Administration ("FAA") who sought
priority consideration for restoration to federal employment
pursuant to 5 U.S.C. 8151, which predicated the level of
priority for re-employment on the extent of recovery from the
disability. He challenged the agency's demand for a pre-
employment examination by a psychiatrist to determine whether he
was fully or only partially recovered from his severe reactive
depression. Id. at 279. In questioning the application of the
regulations, the court noted that "[t]he dilemma here is that
Brumley is not an outside job applicant seeking employment at the
FAA for the first time." Id. "Rather, he is a recipient of . .
. disability payments who is seeking to exercise his re-
employment rights with the FAA pursuant to [5 U.S.C. 8151]."
Id. The court concluded that the employer "retains the right to
require that [the former employee's] medical condition be
verified in order to determine his re-employment rights." Id. at
279.
As in Brumley, this Court faces the quandary of
determining the appropriate parameters of a pre-offer inquiry of
a former employee who is the recipient of disability benefits and
now seeks re-employment. Cyro argues that an employer should not
be forced to have "amnesia" with respect to a former employee
where it is well aware of the nature and severity of that
adjudicate ADA claims in a manner consistent with decisions interpreting the Rehabilitation Act."). Specifically, the ADA's statutory provisions on medical examinations and inquiries were drawn from Rehabilitation Act regulations. See 29 C.F.R.
1614.203(e) (formerly 1614.706); 45 C.F.R. 84.14.
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employee's disability because it had previously received medical
information that formed the basis for its determination of
eligibility for disability benefits. Rather, it urges, Grenier
should be treated as an existing employee returning from
disability leave, in which case the employer would be able to
demand medical certification of ability to return to work. See
42 U.S.C. 12112(d)(4) (ADA provisions for medical examinations
of existing employees); Hogan v. Bangor and Aroostook R.R. Co.,
61 F.3d 1034, 1036 (1st Cir. 1995) (employee was entitled to
reinstatement after suffering collapsed lung as soon as medical
evidence indicated he was fit to return); Pesterfield, 941 F.2d
at 438 (employee who was hospitalized for psychiatric treatment
was required to provide medical certification as to ability to
return to work); Derbis v. United States Shoe Corp., 1994 WL
631155, *5, 6 A.D.D. 1071, 1075, 3 A.D. Cas. 1029, 1030, 65 Fair
Empl. Prac. Cas. (BNA) 1328 (D. Md., Sept. 7, 1994) (No. MJG-93-
130) (where plaintiff on disability leave presented a medical
report which indicated the employee could return to work but only
with some accommodation, employer could require sufficient
information to allow it to consider any possible reasonable
accommodation), aff'd in part and remanded for further
proceedings, 67 F.3d 294 (4th Cir. 1995) (table). We agree that
this case is similar to that of an employee returning from
disability leave. It appears that neither Congress nor the EEOC
took into account the case of a returning employee when
formulating the restrictions on pre-offer inquiries. Here, as in
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the case of the returning employee, the employer must be able to
assess the extent of the applicant's recovery from inability to
perform. Further, if accommodations are necessary to enable job
performance, the employer, who is already familiar with the
disability, must learn of those accommodations in order to have
any realistic chance of assessing ability to perform.
Grenier contends that the ADA as interpreted in the
Guidance prohibits an employer's requirement that a physician
identify the type of reasonable accommodations required for an
employee to return to work. The Guidance states: "If an
applicant has voluntarily disclosed that s/he would need a
reasonable accommodation to perform the job, the employer still
may not make inquiries at the pre-offer stage about the type of
required reasonable accommodation." Guidance IV.B.6.a.
We conclude that the ADA does not preclude an employer
from asking an applicant with a known disability who seeks a
reasonable accommodation to specify the type of accommodation he
seeks. As the District Court pointed out, the Guidance prohibits
pre-offer inquiry into the type of accommodation because it is
"likely to elicit information about the nature and severity of a
disability." Guidance IV.B.6.a. The central purpose of the
prohibition on pre-offer inquiries generally is to ensure that an
applicant's hidden disability remains hidden. See H.R. Rep.
No. 485 (Pt. 2), 101st Cong., 2d Sess., at 73, reprinted in 1990
U.S.C.C.A.N. vol. 4, Legis. Hist., 303, 355 ("The legislation
prohibits any identification of a disability by inquiry or
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examination at the pre-offer stage."); Guidance IV.A ("This
prohibition is to ensure that an applicant's possible hidden
disability (including prior history of a disability) is not
considered by the employer prior to the assessment of the
applicant's non-medical qualifications.").
With respect to known disabilities, however, the
emphasis is on encouraging the employer to "engage in an
interactive process with the individual to determine an effective
reasonable accommodation." Guidance IV.B.6.b (citing H.R. Rep.
No. 485 (Pt. 2), supra, at 65-66, U.S.C.C.A.N. at 347-48). That
is why the EEOC allows an employer to ask an applicant with known
claustrophobia to describe pre-offer how she would perform the
job, with or without reasonable accommodation. There could be no
meaningful interaction if this court would accept the strict
interpretation Grenier presses on us that an employer who knows
the precise nature of a disability that interferes with essential
job functions cannot, on being informed pre-offer that
accommodation will be necessary, follow up with the logical
question "what kind?"6
6 On October 10, 1995, subsequent to oral argument, the EEOC issued a new Guidance. Although neither party has argued that we ought to consider this newest guidance, we note that the EEOC has revised its interpretation of the ADA and now reaches the same conclusion. Under a section headed "The Pre-Offer Stage," the EEOC now explains:
However, when an employer could reasonably believe that an applicant will need reasonable accommodation to perform the functions of the job, the employer may ask that applicant certain limited questions. Specifically, the employer may ask whether s/he needs
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In sum, an employer does not violate 12112(d)(2) of
the ADA by requiring a former employee with a recent known
disability applying for re-employment to provide medical
certification as to ability to return to work with or without
reasonable accommodation, and as to the type of any reasonable
accommodation necessary, as long as it is relevant to the
assessment of ability to perform essential job functions.
D. Intentional Discrimination in Denial of Application D. Intentional Discrimination in Denial of Application
Finally, Grenier argues on appeal that there remain
genuine issues of material fact as to his argument that Cyro
intentionally discriminated against him in violation of 42 U.S.C.
12112(a), as opposed to 12112(d). Grenier argues that, even
if Cyro did not violate the specific restrictions on pre-offer
inquiries, there is a genuine dispute of material fact whether
Cyro illegally discriminated against Grenier based upon his
disability when it denied his application for employment.
By failing to make this argument in his opposition to
summary judgment, Grenier has failed to preserve this claim. "It
is by now axiomatic that an issue not presented to the trial
court cannot be raised for the first time on appeal." Johnston
v. Holiday Inns, Inc., 595 F.2d 890, 894 (1st Cir. 1979). This
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rule may be relaxed only "in horrendous cases where a gross
miscarriage of justice would occur." Id. (quoting Newark
Morning Ledger Co. v. United States, 539 F.2d 929, 932 (3d Cir.
1976)). For a new argument to be considered, it must be "so
compelling as virtually to insure appellant's success." Id.
(quoting Dobb v. Baker, 505 F.2d 1041, 1044 (1st Cir. 1974)).
Even an issue raised in the complaint but ignored at
summary judgment may be deemed waived. "If a party fails to
assert a legal reason why summary judgment should not be granted,
that ground is waived and cannot be considered or raised on
appeal." Vaughner v. Pulito, 804 F.2d 873, 877 n.2 (5th Cir.
1986); see also Liberles v. County of Cook, 709 F.2d 1122, 1126
(7th Cir. 1983). This is because "an appellate court, in
reviewing a summary judgment order, can only consider those
matters presented to the district court." Frank C. Bailey
Enterprises, Inc. v. Cargill, Inc., 582 F.2d 333, 334 (5th Cir.
1978).
Although this alternative argument can be found in the
complaint, and Grenier asserts it would have been raised at
trial, this does not suffice to preserve the issue. Cyro moved
for summary judgment on all counts based solely on the validity
of the pre-offer inquiry under 12112(d). Grenier argued only
that issue in his brief. Although he made an oblique reference
in his memorandum opposing summary judgment to Cyro's failure to
challenge or admit his "ultimate contention that Andre was
discriminated against on the basis of his disability by the
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rejection of his application," he concedes he never addressed the
alternative claim of intentional discrimination. The only
related evidence Grenier discussed in his "statement of material
facts" at summary judgment was that Lysaght stated on January 5,
1993 that Cyro was not seeking applicants, when it had in fact
given notice of the job opening the day before. See Ennis v.
National Ass'n of Business & Educ. Radio, Inc., 53 F.3d 55, 58
(4th Cir. 1995) (discussing prima facie elements of claim under
12112(a)). After the judge entered final judgment once he had
determined that Cyro was entitled to summary judgment on the
issue of preemployment medical inquiries, no motion for
reconsideration was filed. There is nothing in the record which
persuades us to exercise our discretion to bend the raise-or-
waive rule.
III. CONCLUSION III. CONCLUSION
For the foregoing reasons, the District Court's grant
of summary judgment is AFFIRMED. AFFIRMED
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