Lessard v. Osram Sylvania, Inc.

• Court: Court of Appeals for the First Circuit
• Decided: May 10, 1999
• Docket: 98-2052
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                      For the First Circuit

                       ____________________

                                

No. 98-2052

                                

                       STEVEN W. LESSARD,

                                

                     Plaintiff, Appellant,

                                

                               v.

                                

                     OSRAM SYLVANIA, INC.,

                                

                      Defendant, Appellee.

                                

                      ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT

                                

               FOR THE DISTRICT OF NEW HAMPSHIRE

                                

      [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

                                

                      ____________________

                                

                             Before

                                

                     Boudin, Circuit Judge,

                 Magill, Senior Circuit Judge,

                   and Lynch, Circuit Judge.

                                

                      ____________________

                                

  Joni N. Esperian, with whom Moquin & Daley, P.A. was on brief,

for appellant.

    Steven E. Hengen, with whom John T. Alexander and Ransmeier &

Spellman, P.C. were on brief, for appellee.     

   

                      ____________________

                                

                          May 4, 1999

                      ____________________

LYNCH, Circuit Judge.  This is a case under the Americans

with Disabilities Act of 1990 ("ADA"), 42 U.S.C.  12101-12213

(West 1995 & Supp. 1998) and 47 U.S.C.  225 (West 1991 & Supp.

1998).  Combat in Vietnam left veteran Stephen Lessard with wounds,

including a hand which is visibly scarred, disfigured, and subject

to chronic pain and numbness.  Concerns about repetitive motion

injury to this hand led to Lessard's loss of a specific job as a

trainee spot welder in the Mount Department at Osram Sylvania, Inc.

("OSI"), and the company said it had no other available jobs. 

Lessard sued, asserting that he was not disabled, did not need

accommodation, and was fired because OSI believed he was disabled

with respect to the major life activity of working.  This, he said,

violated the ADA's prohibition on discrimination based on a

perceived disability.  The district court granted summary judgment

to the employer in a well-reasoned opinion.  See Lessard v. Osram

Sylvania, Inc., No. 96-309, slip op. at 13 (D.N.H. Aug. 24, 1998). 

Lessard appeals.  We affirm.

                               I

We review the grant of summary judgment de novo and take

facts and reasonable inferences in the light most favorable to

Lessard.  See Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 14

(1st Cir. 1997).  

Lessard is a veteran who suffered several injuries,

including to his left hand, during his service with the United

States Marine Corps in Vietnam.  Although the Department of

Veterans' Affairs lists him as partially disabled, Lessard

considers himself fully functional, without need for any

accommodation.  While Lessard acknowledges that he suffers from

pain and numbness in his left hand, he argues in essence that he is

not substantially limited by this impairment.  Indeed, he has been

steadily employed as a chef since 1991.  A desire for a job with

benefits led him to apply to Kelly Services, Inc. ("Kelly"), a

nationwide employment agency.  Kelly had a client, OSI, looking for

employees for a particular production line.

OSI operates a commercial lighting manufacturing plant in

Manchester, New Hampshire, including a production line known as the

Mount Department.  In late 1994, in response to increased demand,

OSI added a third shift to the Mount Department.  Instead of

directly hiring the necessary workers, OSI obtained them through

Kelly.  Kelly hired Lessard as a spot welder, and included him in

a class of twenty-six sent to OSI as Mount Department trainees.

Lessard reported to the Manchester facility on December

19, 1994.  The plant was on holiday shutdown, staffed only by

employees setting up the third shift and training the new

personnel.  Regular Mount Department workers performed the bulk of

this training.  Because of the shutdown, neither OSI's doctor nor

its Human Resources staff were at the plant during the events that

followed.

Lessard's first day of training passed without event.  On

the following day, Lessard worked in part with OSI trainer Janine

Lanoie.  Lanoie noticed Lessard's injured hand and asked him

whether the injuries bothered him.  He replied that they did not. 

After the second day, the training adjourned for a week-long

holiday break.

On December 28, 1994, the new trainees returned for their

third day of training.  That morning, they attended an ergonomics

workshop, which focused on avoiding repetitive-motion injury.  OSI

hoped the class would reduce the rate of such injury among workers

in the Mount Department, which had been higher than in other areas

of the plant.  John LaCourse, Ph.D., a professor at the University

of New Hampshire and a consulting ergonomist to OSI, led the

workshop.  When the presentation was over, Lessard approached

Professor LaCourse.  Lessard pointed out his scarred hand,

explained that he had suffered shrapnel wounds in Vietnam, and said

he was worried about whether the Mount Department job would, in the

long term, affect his hand.  LaCourse and Lessard discussed the

situation.

Mark Hopkins, one of the plant's general foremen, was

present during Lessard's conversation with LaCourse.  As a result,

Hopkins took Lessard to see Janice Kelley, the company nurse.

Hopkins did not stay during Nurse Kelley's examination.

Lessard showed Nurse Kelley his hand, explained the

source of the wound, and in response to a question said he had pain

all the time in his hand.  Nurse Kelley's contemporaneous notes

state that Lessard was concerned about discomfort in his left hand. 

After examining him, Nurse Kelley said, "I don't think you will be

able to do the work here," and "there's no other kind of work for

you."  When Lessard asked her why he could not work, she replied,

"because of your hand."  Nurse Kelley's notes show that she told

Lessard he was presently unable to do the mount task, that he asked

if there were other jobs, and that she told him to talk to Human

Resources about possible other jobs when they returned after the

plant shutdown.

Nurse Kelley then had a conversation with Hopkins. 

Hopkins decided that Lessard could not work as a mounting employee,

escorted Lessard from the plant, and repossessed his OSI

identification.  Lessard did not subsequently return to work at

OSI, contact Human Resources, or apply for another job with OSI. 

Based on Kelly records and testimony by a Kelly employee,

the district court found that "Lessard called Kelly Services to

report that OSI's nurse felt that he should do something other than

mounting.  Kelly Services first checked with OSI, then called

Lessard back to let him know that [his] assignment with OSI was

over because OSI had no non-repetitive work."  Lessard, slip op. at

3.  There is no evidence that any jobs were then open at the plant

outside the Mount Department.

From the twenty-six trainees in Lessard's class, OSI

eventually hired twelve full-time "mount team members."  It is not

clear how many workers, if any, continued as temporary employees

assigned to the Mount Department.  On January 30, 1995, a month

later, OSI hired an employee for the Production Maintenance

Department at the Manchester plant.  This job did not involve

repetitive motion.

On November 6, 1995, Lessard filed a timely complaint

with the Equal Employment Opportunity Commission ("EEOC"), alleging

that OSI had unfairly terminated him because of a perceived

disability protected by the ADA.  On April 4, 1996, the EEOC

notified Lessard of his right to sue.  On June 13, 1996, Lessard

filed this action, seeking compensatory damages for lost wages and

mental anguish, punitive damages, either reinstatement or future

lost wages, and costs including attorney's fees.

After discovery, the district court granted summary

judgment to OSI.  Noting that Lessard proceeded only under a theory

of perceived disability, the court concluded that he failed to

adduce evidence that OSI "believed he was disabled with respect to

the major life activity of working."  Lessard, slip op. at 6. 

Lessard attacks this conclusion on several fronts.

                               II

Before addressing Lessard's challenges, we note what is

not at issue or decided here.  First, we do not reach the issue of

whether Lessard, retained by Kelly to work at OSI, was an

"employee" of OSI; we will assume arguendo that he was.  Second, we

honor Lessard's assertion that he is not disabled, and do not

analyze discrimination based on actual disability.  Third, Lessard

has disavowed any claim that the ADA required OSI to give him

reasonable accommodation, and we do not examine this issue. 

Fourth, we do not view this case as involving the "direct threat"

language of the ADA, and we do not examine any such claim.  Cf.

EEOC v. Amego, 110 F.3d 135, 142-44 (1st Cir. 1997).  We take the

case as Lessard has framed it: the question presented is whether

OSI perceived him to be disabled within the meaning of the ADA and

discriminated against him on that account.

The statutory definition of disability contained in the

ADA includes, with respect to an individual:

          (A)  a physical or mental impairment that substantially

          limits one or more of the major life activities of

          such individual;

          (B)  a record of such an impairment, or;

          (C)  being regarded as having such an impairment.

42 U.S.C.  12102(2).  It is paragraph (C) of the definition which

is at issue here.

In encompassing the category of perceived disability, the

ADA follows the model adopted in  504 of the Rehabilitation Act of

1973, as amended, 29 U.S.C.  794.  The Supreme Court interpreted

the similar prong of  504 in School Board of Nassau County v.

Arline, 480 U.S. 273 (1987).  In Arline, a case involving

tuberculosis, the Court found that, by enacting this branch of the

definition of "handicapped individual" under  504:

     Congress acknowledged that society's accumulated myths

     and fears about disability and disease are as

     handicapping as are the physical limitations that flow

     from actual impairment.

Id. at 284-85.  This court also acknowledged these Congressional

concerns in Cook v. Rhode Island, 10 F.3d 17, 24 (1st Cir. 1994),

a case under  504 concerning, inter alia, perceptions that morbid

obesity disqualified plaintiff from a broad range of jobs and

several major life activities.

The EEOC, acting under its authority to promulgate

regulations under the ADA, has said:

          (l)  Is regarded as having such an impairment means:

          (l)  Has a physical or mental impairment that does not

          substantially limit major life activities but is

          treated by a covered entity as constituting such

          limitation;

          (2)  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

          (3)  Has none of the impairments defined in paragraph

          (h)(1) or (2) of this section but is treated by a

          covered entity as having a substantially limiting

          impairment.

29 C.F.R.  1630.2 (1998).  We consider here only clauses (1) and

(3).  Those clauses shift the analysis somewhat, from what people

at OSI may have perceived to how OSI "treated" Lessard's supposed

impairment.  We have previously explored the EEOC regulations in

Tardie v. Rehabilitation Hospital, 168 F.3d 538, 541-42 (1st Cir.

1999) and  Katz v. City Metal Co., 87 F.3d 26, 31-32 (1st Cir.

1996).

To recover under the ADA for employment discrimination,

Lessard must prove three elements.  He must establish that (1) he

suffers from a disability as defined by the ADA (in this instance,

that the employer regarded him as being disabled) but that (2) he

was nevertheless qualified for the job -- that is, able to perform

its essential functions either with or without reasonable

accommodation -- and, finally, that (3) OSI discharged him, in

whole or in part, because of his protected disability. 

See Feliciano v. Rhode Island, 160 F.3d 780, 784 (1st Cir. 1998)

(citing Katz, 87 F.3d at 30).  The burden of proof on all three

prongs in this circuit is on plaintiff.  See Tardie, 168 F.3d at

541; Katz, 87 F.3d at 30; Cook, 10 F.3d at 22.  The district court

examined the first prong, and found that Lessard had failed to

carry his burden.  See Lessard, slip op. at 12.  Like the district

court, we begin our inquiry with the threshold question: whether

OSI regarded Lessard as disabled under the ADA, thus entitling him

to the statute's protection.  See 42 U.S.C.  12102(2)(A), (C).

Under the ADA, not all impairments lead to protection. 

Soileau, 103 F.3d at 14-15.  Only those impairments which

substantially limit a major life activity do so.  The only major

life activity argued to be involved here is "working."  29 C.F.R.

 1630.2(i).  Thus, this case does not involve any other major life

activity, nor does it involve any evidence that Lessard was unable

generally to work.  "Working" itself is a somewhat elastic term and

the EEOC has attempted to give it content through regulations. 

As Lessard, creditably, has noted to us, the regulations

draw a distinction between an inability to perform "a class of jobs

or a broad range of jobs," which provides the basis for a

disability finding, and an "inability to perform a single,

particular job," which does not.  29 C.F.R.  1630.2(j)(3)(i). 

"The inability to perform a single, particular job does not

constitute a substantial limitation in the major life activity of

working."  Id.  The reason for this distinction ties back to the

notion that there is no disability unless the major life activity

of working is impaired.  And all of these refinements are in the

service, in this case, of deciding whether OSI treated Lessard as

it did because of a perceived disability.    

In the end, through the various iterations of Lessard's

arguments, this case turns on the distinction drawn above.  The

district court found it undisputed that the Mount Department job --

from which Lessard was sent home -- was a single, specific job, and

so entered summary judgment.  Lessard responds that the evidence

more fairly supports the inference that OSI acted as it did not

because it thought him unable to do not merely the Mount Department

job, but a "class of jobs or broad range of jobs," i.e., all

repetitive motion jobs anywhere.

Under the regulations relied on by Lessard, an employee

is substantially limited as to working if he is "significantly

restricted in the ability to perform either a class of jobs or a

broad range of jobs in various classes as compared to the average

person having comparable training, skills and abilities."  Id.; see

also Quint v. A.E. Staley Mfg. Co., Nos. 98-1300 & 98-1342, slip

op. at 16, 1999 WL 126785 at *6 (1st Cir. Mar. 15, 1999).

There is no real disagreement between the parties that

the Mount Department job is a narrow, single job.  Thus, if OSI

concluded that Lessard was unable to perform the Mount Department

job and treated him accordingly, its actions may not be attacked

under the ADA.  That is because only one job or a narrow range of

jobs is involved, and therefore there can be no impairment of the

major life activity of working.

In this interpretation of the regulation, we follow this

court's recent decision in Tardie, affirming summary judgment for

an employer on a perceived disability claim.  Tardie held:

     [T]he fact that appellees may have regarded Tardie as

     unable to work more than 40 hours per week, and thereby

     unable to perform her particular job, does not mean that

     appellees regarded her as being substantially limited in

     the major life activity of working.  "An impairment that

     disqualifies a person from only a narrow range of jobs is

     not considered a substantially limiting one."

Tardie, 168 F.3d at 542 (quoting Heilweil v. Mount Sinai Hosp., 32

F.3d 718, 723 (2d Cir. 1994)).

Lessard insists that it can be reasonably inferred from

the evidence that OSI found him unable to perform any repetitive

motion work.  He further argues that repetitive motion work

includes a broad range of jobs.  Thus, Lessard concludes, OSI's

decision to terminate him did involve the major life activity of

working and so was actionable.  We think such inferences are not

reasonable given the undisputed record, in particular the facts

that the only OSI jobs available at the time were the Mount

Department jobs, that OSI went to Kelly to fill Mount Department

jobs, that Kelly retained Lessard to fill a Mount Department job,

that Lessard's questions to the safety counselor and the nurse went

to the safety of the Mount Department job for his hand, that the

only job Lessard performed was the Mount Department job, that it

was the Mount Department job from which he was sent home, and that

Lessard reported to Kelly that the nurse told him he should do

something other than mounting.  Cf. DM Research, Inc. v. College of

American Pathologists, No. 98-1555, slip op. at 8-9, 1999 WL 104446

at *4 (1st Cir. Mar. 4, 1999) (inferences plaintiff sought to have

drawn were not reasonable).  It is true that the Mount Department

work involved repetitive motion; but this does not mean that OSI

treated Lessard as unable to perform a broad range of jobs when it

treated him as unable to perform the specific Mount Department job.

The district court correctly concluded that the evidence

presented was that the various OSI witnesses regarded Lessard as

unsuitable for the Mount Department job, which is a specific job

and not a class of jobs.  There is also no evidence that at the

time OSI needed workers outside the Mount Department.  Because

Lessard's evidence did not show that his ability to work in

anything other than a specific job was ever questioned by OSI,

summary judgment was appropriately entered against him on the basis

of his failure to show perceived disability.   

Lessard appears to argue that OSI considered him unable

to do other repetitive motion production line jobs within the

plant, but submits no evidence that there were such jobs or that

any such jobs had openings at the time.  Lessard bore the burden of

proof.  Even if OSI regarded Lessard as precluded from other

repetitive motion production line work within OSI but outside the

Mount Department (if such work existed), it is questionable whether

this will be enough to show a substantially limiting impairment, a

question we do not reach.  Cf. McKay v. Toyota Motor Mfg., U.S.A.,

Inc., 110 F.3d 369, 373 (6th Cir.), mot. for untimely cert. denied,

118 S. Ct. 39 (1997); Wooten v. Farmland Foods, 58 F.3d 382, 386

(8th Cir. 1995).

Lessard attempts to avoid this conclusion by saying the

employer regarded him as unsuitable for any work anywhere involving

repetitive hand motions, including jobs such as cooking and

painting.  The evidence does not support such an inference, and

thus we do not examine whether such a belief involves a broad class

of jobs, and thus a belief that the major life activity of working

is impaired.  See DePaoli v. Abbott Labs., 140 F.3d 668, 672-74

(7th Cir. 1998).  It suffices to observe that these can be very

fact-driven inquiries; that the EEOC has defined certain categories

of information as helpful to defining what are "broad classes" of

jobs, 29 C.F.R.  1630.2(j)(3)(ii); see also Quint, slip op. at 16,

1999 WL 126785 at *6, and that this record is devoid of any such

evidence.

Lessard's final argument is that OSI was motivated by

stereotyping, the very evil Congress intended the ADA to prevent. 

Cf. 29 C.F.R.  1630.2(l)(2).  He points to his scarred hand,

saying it led to unwarranted assumptions by OSI that he was injury-

prone and would thus drive up insurance costs.  We are doubtful,

despite suggestions to the contrary in some commentary, see, e.g.,

R.L. Burgdorf, Jr., Disability Discrimination in Employment Law

162-63 (1996), that even myth-motivated actions by the employer can

be the basis for liability if the actions are based on a perceived

impairment that does not substantially limit a major life activity. 

Lessard's argument thus may well be beside the mark.  To put it

differently, on the claims raised by these facts, there is no

reason to think that Congress intended the scope of protection

afforded against perceived disability discrimination to be larger

than the scope of protection afforded against actual disability

discrimination.  The EEOC regulations treat the scope of protection

as no greater; if an impairment is not a disability for actual

disability purposes, it is also not a disability for perceived

disability purposes.  See 29 C.F.R.  1630.2(i).  

But Lessard's argument, in any event, is not reasonably

supported by inferences from the evidence.  OSI and those who

trained Lessard were well aware of his scarred hand and it mattered

not, at least not until he raised his own fears that the mounting

job might harm his hand.  It was not stereotyping which set the

chain of events in motion.  And because a deeply offended Lessard

never contacted the OSI Human Resources Department about a broader

range of jobs, at the time of his dismissal or later, the record is

barren as to how OSI would have responded.  Regrettably, further

communication by either side -- which might have avoided this

lawsuit -- did not take place.

Affirmed.