Tardie v. Rehabilitation

• Court: Court of Appeals for the First Circuit
• Decided: February 24, 1999
• Docket: 98-1748
• Status: Published

Opinion

USCA1 Opinion

                  United States Court of Appeals

                      For the First Circuit

                       ____________________



No. 98-1748



                          PAULA TARDIE,



                      Plaintiff, Appellant,



                                v.



         REHABILITATION HOSPITAL OF RHODE ISLAND, ET AL.,



                      Defendants, Appellees.



                       ____________________



           APPEAL FROM THE UNITED STATES DISTRICT COURT



                 FOR THE DISTRICT OF RHODE ISLAND



          [Hon. Ronald R. Lagueux, U.S. District Judge]



                       ____________________



                              Before



                     Torruella, Chief Judge,



                  Coffin, Senior Circuit Judge,



                    and Boudin, Circuit Judge.



                      _____________________



    Peter J. Cerilli, with whom Cerilli, McGuirl & Bicki were on

brief, for appellant.

    James M. Paulson, with whom Jaclyn L. Kugell and Morgan, Brown

& Joy were on brief, for appellees.


____________________



                       February 24, 1999

                       ____________________  TORRUELLA, Chief Judge.  This appeal involves an action

filed by plaintiff-appellant Paula Tardie against her employer, the

Rehabilitation Hospital of Rhode Island ("RHRI"), and its parent

organization, the Braintree Hospital Rehabilitation Network

("Braintree") (collectively, "appellees").  Tardie alleges that she

was discharged from her position as Director of Human Resources at

RHRI due to her disability and while she was on medical leave.  On

May 29, 1998, the district court entered summary judgment against

Tardie's claims.  Tardie appeals, and we affirm.

                            BACKGROUND

  In January of 1990, Tardie began working as a personnel

assistant in the Human Resources Department at Braintree.  Tardie

subsequently received several promotions, and in late 1993, Tardie

was selected by her supervisor, Richard Horne, to establish the

Human Resources Department at the newly-formed RHRI.  One of

Tardie's tasks in setting up the department was drafting the job

description of the Director of Human Resources at RHRI.  That job

description gave a summary of the position and outlined the

essential qualifications, requirements, and functions of the

position.  One of the listed requirements was "ABILITY TO MAINTAIN

ASSIGNED WORK HOURS:  Has sufficient endurance to perform tasks

over long periods of time." 

  In January of 1994, Tardie was appointed as Director of

Human Resources at RHRI.  In this position, Tardie earned a salary

of approximately $50,000 per year and worked "anywhere from 50 to

70 hours per week."  In July of 1994, Tardie began to experience

chest pain, shortness of breath, numbness in her arms, and

dizziness.  Tardie's doctor conducted tests on her heart and found

results consistent with a left atrial enlargement.  Tardie was then

placed on medical leave of absence from July 26 through

September 6, 1994.  Horne, who was still Tardie's supervisor,

called Tardie, and Tardie told him that she believed that working

excessive hours was causing the symptoms.  Horne offered to return

Tardie to her former position at Braintree, and Tardie accepted the

offer.  Tardie wrote a "thank you" note to Horne, thanking him for

all he had done for her, apologizing that she "couldn't do it," and

stating that she "gave it [her] best."  Tardie testified in her

deposition that, by "it," she meant the long hours of the position.

  On August 16, 1995, Horne and Tardie met to discuss the

status of her employment.  Horne stated that there were no

available positions at RHRI, but that he would create a part-time

position as a recruiter at Braintree if Tardie was interested.

Otherwise, Horne offered to assist her in obtaining a severance

package from RHRI and finding employment with another company. 

Rather than resign or allow Horne to create the part-time position,

Tardie called Donald Burman, the Chief Executive Officer of RHRI,

and told him that she intended to return to RHRI.  She stated that

she would gradually increase her working hours to a maximum of

forty hours per week, but that she could no longer work the

extended hours she had been working.  Burman agreed and stated that

they could work it out.  Tardie then called Horne, who told her

that he could justify adding a part-time person to assist Tardie

and that he would present this idea to Burman.

  Horne, Burman and Lisa LaDew, Chief Operating Officer at

RHRI, then met to discuss Tardie's situation.  Tardie alleges that

Horne, Burman and LaDew discussed her medical condition and assumed

that she suffered from an enlarged heart.  The three individuals

decided not to reinstate Tardie as Human Resources Director because

they determined that Tardie could not perform the job while working

only forty hours per week.  Horne called Tardie to inform her of

the decision and told her that she needed to discuss the matter

with Burman.  Burman later explained to Tardie the basis for the

decision and offered to put together a severance package for her. 

A package was later offered, but Tardie refused to accept it. 

  On November 27, 1996, Tardie filed a complaint against

RHRI and Braintree in United States District Court for the District

of Rhode Island.  Tardie alleged that her discharge violated:

(1) the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29

U.S.C.  791 et seq.; (2) the Americans with Disabilities Act of

1990 ("ADA"), 42 U.S.C.  12101 et seq.; (3) the Family and Medical

Leave Act of 1993 ("FMLA"), 29 U.S.C.  2601 et seq.; (4) the Rhode

Island Civil Rights of Individuals with Handicaps Act ("RICRIHA"),

R.I. Gen. Laws  42-87-1 et seq.; (5) the Rhode Island Fair

Employment Practices Act ("FEPA"), R.I. Gen. Laws  28-5-1 et seq.;

and (6) the Rhode Island Parental and Family Medical Leave Act

("PFMLA"), R.I. Gen. Laws  28-48-1 et seq.   After the close of

discovery, appellees moved for summary judgment on all counts.  The

district court granted appellees' motion, finding: (1) that Tardie

was unable to demonstrate that she suffered from a "disability" or

was perceived as suffering from a "disability" under the ADA or

Rehabilitation Act, and (2) that Tardie was unable to work fifty to

seventy hours per week, which was one of the essential functions of

her position.  The district court entered judgment against all of

Tardie's claims on May 28, 1998, and this timely appeal followed.

                            DISCUSSION

  Tardie argues that the district court erred in entering

summary judgment against her six causes of action.  Summary

judgment is proper where "the pleadings, depositions, answers to

interrogatories, and admissions on file, together with affidavits,

if any, show that there is no genuine issue as to any material fact

and that the moving party is entitled to judgment as a matter of

law."  Fed. R. Civ. P. 56(c).  Once the moving party has pointed to

the absence of adequate evidence supporting the nonmoving party's

case, the onus is on the nonmoving party to present facts that show

a genuine issue for trial.  See Serrano-Cruz v. DFI Puerto Rico,

Inc., 109 F.3d 23, 25 (1st Cir. 1997); LeBlanc v. Great American

Ins. Co., 6 F.3d 836, 841-42 (1st Cir. 1993), cert. denied, 511

U.S. 1018 (1994).  "[A] party opposing a properly supported motion

for summary judgment may not rest upon mere allegation or denials

of his pleading, but must set forth specific facts showing that

there is a genuine issue for trial."  Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 256 (1986)(citing Fed. R. Civ. P. 56(e)).

"[P]laintiff . . . [must] offer[] . . . 'significant probative

evidence tending to support the complaint.'"  Id. at 256 (quoting

from First National Bank of Arizona v. Cities Service Co., 391 U.S.

253, 290 (1968)).  We review the district court's grant of summary

judgment de novo.  See Serrano-Cruz, 109 F.3d at 25.

A.  The Americans With Disabilities Act

  To prove her ADA claim, Tardie must establish: (1) that

she suffered from a "disability" within the meaning of the ADA;

(2) that she was able to perform the essential functions of her

job, either with or without reasonable accommodation; and (3) that

her employer discharged her in whole or in part because of that

disability.  See Feliciano v. State of Rhode Island, 160 F.3d 780,

784 (1st Cir. 1998) (citing Katz v. City Metal Co., Inc., 87 F.3d

26, 30 (1st Cir. 1996)).  The district court found that it did not

need to reach the second or third elements because Tardie could not

establish that she had or has a disability as defined by the ADA.

  The regulations governing the ADA define "disability" as:

(A) having a physical or mental impairment which substantially

limits one or more of an individual's major life activities;

(B) having a record of such an impairment; or (C) being regarded as

having such an impairment.  See 42 U.S.C.  12102(2);  29 C.F.R.

 1630.2(g).  The district court rejected Tardie's arguments that

she had a "disability" under subsections (2)(A) and (2)(C).  On

appeal, Tardie argues only that she was disabled under subsection

(2)(C), or that appellees regarded her as having a substantially

limiting impairment.  An individual who has an impairment that is

not substantially limiting (or has no impairment at all) is

nevertheless "disabled" if she is treated by her employer as having

an impairment that does substantially limit major life activities.

See 29 C.F.R.  1630.2(l); Katz, 87 F.3d at 32.

  Tardie argues that there is ample evidence that appellees

regarded her as suffering from an impairment.  Tardie claims that

appellees demonstrated their perception of her as disabled at the

meeting between Horne, Burman, and LaDew.  Tardie claims that the

decision to discharge her was based upon appellees' misperception

that she suffered from a heart condition which rendered her unable

to perform her job, either with or without reasonable

accommodation.

  Tardie has clearly demonstrated that appellees regarded

her as having an impairment that prevented her from working more

than forty hours per week; Tardie specifically told them as much. 

The question becomes whether such an impairment is an impairment

that "substantially limits" one of Tardie's "major life

activities".  See 42 U.S.C.  12102(2); 29 C.F.R.  1630.2(g).  As 

noted by the district court, working is a major life activity, but

the perceived impairment is not one that substantially limits the

activity of working.  The relevant regulation defines

"substantially limits," in the context of the activity of working,

as:

  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.  The inability

  to perform a single, particular job does not

  constitute a substantial limitation in the

  major life activity of working.



29 C.F.R.  1630.2(j)(3).  Hence, the 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."  Heilweil v. Mount Sinai Hosp., 32

F.3d 718, 723 (2d Cir. 1994), cert. denied, 523 U.S. 1147 (1995);

see also McKay v. Toyota Mfg., U.S.A., Inc., 110 F.3d 369, 373 (6th

Cir. 1997) (citing Heilweil and finding that the plaintiff's

inability to perform repetitive-motion factory work did not

restrict her ability to perform either a class of jobs or a broad

range of jobs); Wooten v. Farmland Foods, 58 F.3d 382, 386 (8th

Cir. 1995) (citing Heilweil).  As the district court noted, there

are vast employment opportunities available which require only 40-

hour work weeks.  Without more, we cannot ascribe error to the

district court's finding that appellees regarded Tardie as having

an impairment that did not substantially limit one or more of her

major life activities.  Therefore, we affirm the district court's

grant of summary judgment against Tardie's ADA claim for failure to

demonstrate that she suffered from a disability.

B.  The Rehabilitation Act

  Section 504(a) of the Rehabilitation Act provides that

"[n]o otherwise qualified individual with a disability . . . 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).  In any claim under the

Rehabilitation Act, the plaintiff must first establish that she has

a disability covered by the Act.  See Leary v. Dalton, 58 F.3d 748, 

752 (1st Cir. 1995).  As discussed above, Tardie has not raised a

genuine issue with regard to whether she has a "disability" under

the ADA.  "Disability" is defined identically under the ADA and the

Rehabilitation Act. Compare 42 U.S.C.  12102(2)(statutory

definition of ADA's "disability") and 29 C.F.R.  1630.2(g)

(regulatory definition of ADA's "disability") with 29 U.S.C.

 705(20) (statutory definition of Rehabilitation Act's "individual

with a disability") and 29 C.F.R.  1614.203(a)(1) (regulatory

definition of Rehabilitation Act's "individual with handicaps").

     While the ADA's definition of "substantially limits"

under 29 C.F.R.  1630.2(j)(3) does not appear to have a

counterpart in the Rehabilitation Act or its regulations, Congress

has provided that the standards used to determine whether  504 of

the Rehabilitation Act has been violated in a complaint alleging

employment discrimination shall be the standards applied to

employment discrimination actions under the ADA, see 29 U.S.C.

 794(d).  Additionally, several courts have held, in the

Rehabilitation Act context, that the inability to perform a

particular job does not constitute a substantial limitation in the

major life activity of working.  See, e.g., Heilweil, 32 F.3d at

723-24 (collecting cases for the proposition and finding that the

plaintiff's inability to work in one particular place did not

constitute a disability); Gupton v. Virginia, 14 F.3d 203, 205 (4th

Cir.) (finding that a plaintiff did not demonstrate that an

impairment limited her ability to work when she presented only

evidence that it prevented her from performing one particular job),

cert. denied, 513 U.S. 810 (1994); Byrne v. Board of Educ., 979

F.2d 560, 565 (7th Cir. 1992) (stating that it is well-established

that a person's inability to perform a specific job for a specific

employer does not substantially limit that person's ability to

work); Welsh v. City of Tulsa, 977 F.2d 1415, 1417-18 (10th Cir.

1992) (holding that an impairment that an employer perceives as

limiting an individual's ability to perform only one job is not a

handicap under the Rehabilitation Act);  Maulding v. Sullivan, 961

F.2d 694, 698 (8th Cir. 1992)(finding no error in the district

court's conclusion that the inability to perform lab work does not

substantially limit employment as a whole), cert. denied, 507 U.S.

910 (1993).  Therefore, the district court properly granted summary

judgment against Tardie's Rehabilitation Act claim for the same

reason her ADA claim fails: she has not shown that appellees

regarded her as having an impairment which substantially limits a

major life activity.

C.  The Family and Medical Leave Act

     Tardie also claims that her termination while she was on

medical leave violated the FMLA.   An eligible employee who takes

leave under the FMLA is entitled to be restored to the same or an

equivalent position upon returning from leave.  See 29 U.S.C.

 2614(a)(1); Hodgens v. General Dynamics Corp., 144 F.3d 151, 159

(1st Cir. 1998) (citing 29 U.S.C.  2614(a)(1) and 29 C.F.R.

 825.100(c)).  However, the regulations promulgated under the FMLA

state that "[i]f the employee is unable to perform an essential

function of the position because of a physical or mental condition

. . . the employee has no right to restoration to another position

under the FMLA."  29 C.F.R.  825.214(b).  The regulation then goes

on to state that the employer in such a situation may have

obligations under the ADA.  See id.  

     In analyzing Tardie's FMLA claim under  825.214(b), the

district court found: (1) that the position of Human Resources

Director at RHRI requires the employee to work fifty to seventy

hours per week, and (2) that the ability to work extended hours was

an essential function of the position.  Because Tardie cannot work

more than forty hours per week, the district court found that

Tardie could not perform an essential function of the position, and

therefore had no right to reinstatement.  Tardie raises several

arguments challenging this finding.

     First, Tardie claims that the evidence does not support

a finding that an essential function of her job was working more

than 40 hours per week.  She points to the job description of the

Director of Human Resources position -- which she wrote -- and

notes that it does not set forth the ability to work sixty- to

seventy-hour weeks as an essential function of the position. 

However, that job description does state that the person holding

the position must have "sufficient endurance to perform tasks over

long periods of time."  Also, Tardie herself testified in her

deposition that: (1) dealing with employee issues beyond the hours

of 9:00 a.m. to 5:00 p.m. was "part of the job"; (2) she frequently

needed to be present at the hospital for at least a portion of all

three of the hospital's eight-hour work shifts; (3) the position

often required her to return to work after she had gone home for

the evening; and (4) she worked "anywhere from 50 to 70 [hours per

week] depending on what [she] was doing."  The only evidence Tardie

offers to support a finding that working extended hours was not an

essential function of the position was a payroll check stub that

stated that Tardie's salary was based upon a 40-hour week. 

However, even overlooking the fact that this payroll documentation

was created by an outside accounting organization, this evidence

does not support Tardie's position.  Tardie was a salaried employee

who was not required to keep track of the hours she worked.  The

fact that she was attributed a 40-hour work week for payroll

purposes hardly demonstrates that only 40-hour work weeks were

required of her in the actual performance of her position.

     At oral argument, Tardie's counsel argued that the time

spent at a job is not a "function" of the job; it is a capability. 

Tardie claims that only specific duties can be "functions" of a

position.  Tardie attempts to distinguish her position's extended-

hours requirement from the essential functions involved in

Feliciano, 160 F.3d at 785 (lifting patients), and Laurin v.

Providence Hospital and Massachusetts Nurses Assoc., 150 F.3d 52,

57 (1st Cir. 1998) (working the night shift).  Tardie describes

lifting patients and working the night shift as "specific duties"

and describes the hours worked as a "capability."  Tardie cites no

authority for this distinction, and we believe it to be mere

semantics.  It strains credulity to argue that the time of day that

the hours are required to be worked can constitute an essential

function but that the number of hours required to be worked cannot. 

At bottom, Tardie offers no evidence that she or anyone else could

perform the job in only forty hours per week and offers no evidence

to rebut appellees' evidence that the extended-hours requirement is

an essential function of the position.  Consequently, the district

court did not err in finding that working more than 40 hours per

week was an essential function of the position.

     Lastly, Tardie argues that, even if she were unable to

perform the essential functions of her job, appellees were still

required to offer her the same or equivalent position with

reasonable accommodations.  Tardie claims that she has at least

raised a genuine issue with regard to whether her request to work

only a 40-hour week was a reasonable accommodation.  We disagree. 

First of all, it is not at all clear that the concept of

"reasonable accommodation" is applicable in the FMLA context. 

Section 825.214(b) eliminates the obligation to reinstate an

employee returning from FMLA leave if that employee is "unable to

perform an essential function of the position."  29 C.F.R.

825.214(b).  Unlike the ADA, this FMLA regulation omits the

qualifying "with or without reasonable accommodation" language. 

The regulation goes on to state that the employer may have

obligations under the ADA, but this reminder does not import the

"reasonable accommodation" qualifier into the FMLA context.

     Additionally, even if the "reasonable accommodation"

language did apply to this exception to the FMLA reinstatement

requirement, the accommodation sought by Tardie was unreasonable as

a matter of law.  Working more than forty hours per week is an

essential function of her position.  Tardie's request to work only

forty hours per week was a request to eliminate this essential

function.  We have previously held that an employer need not

accommodate a disability by foregoing an essential function of the

job.  See Feliciano, 160 F.3d at 785; Laurin, 150 F.3d at 56.

     In short, the district court did not err in finding:

(1) that working more than forty hours per week was an essential

function of her position, and (2) that Tardie was unable to perform

that essential function.  Therefore, 29 C.F.R.  825.214(b)

relieved appellees of the obligation to reinstate Tardie following

her FMLA leave, and the district court properly denied Tardie's

FMLA claim on this basis.

D.  Tardie's State Law Causes of Action

     Tardie assigns no separate or additional error to the

district court in its assessment of her state law claims under

RICRIHA, FEPA, and PFMLA.  The district court found that those

state law claims required the same analysis as that utilized for

the corresponding federal statutes already discussed.  Tardie does

not challenge this determination; rather, she agrees with it.  From

this, Tardie argues that the genuine issues of material fact that

she claims to have identified with regard to her federal claims

also serve to foreclose summary judgment on her state law claims. 

Because we find that no genuine issue exists with regard to

Tardie's ADA, Rehabilitation Act, and FMLA claims, we also find

that no genuine issue exists with regard to Tardie's state law

claims. See Hodgens, 144 F.3d at 158 n.1; Cook v. Rhode Island

Department of Mental Health, Retardation and Hosps., 10 F.3d 17, 21

n.2 (1st Cir. 1993).  Therefore, the district court did not err in

granting summary judgment against those causes of action.

                            CONCLUSION

     Based on the foregoing, the district court's entry of

summary judgment against Tardie's claims is AFFIRMED.