Ward v. Massachusetts Health Research Institute, Inc.

United States Court of Appeals
For the First Circuit
____________________

No. 99-1651

MICHAEL J. WARD,

Plaintiff, Appellant,

v.

MASSACHUSETTS HEALTH RESEARCH INSTITUTE, INC.,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

____________________

Before

Torruella, Chief Judge,

Cyr, Senior Circuit Judge,

and Stahl, Circuit Judge.

_____________________

Arnold E. Cohen, with whom Bass, Doherty & Finks, P.C. was on
brief, for appellant.
Richard L. Alfred, with whom Marjory D. Robertson, Robert F.
Schwartz and Hill & Barlow were on brief, for appellee.
Loretta M. Smith, Cynthia L. Amara and New England Legal
Foundation on brief for Associated Industries of Massachusetts, amicus
curiae.

____________________
 April 12, 2000
____________________

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 TORRUELLA, Chief Judge. This is an appeal from summary

judgment for the defendant employer in a claim of wrongful discharge

under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101,

and the Massachusetts anti-discrimination statute, Mass. Gen. Laws ch.

151B, § 1. For the reasons discussed below, we reverse and remand for

proceedings consistent with this opinion.

I. BACKGROUND

The following facts are summarized in the light most

favorable to the appellant. In September 1991, appellee Massachusetts

Health Research Institute ("MHRI") hired appellant Michael Ward to

split his time as a lab assistant and as a data entry assistant to the

plasma program coordinator. The appellant did not notify MHRI of any

disability at this time.

MHRI requires its employees to fill out daily time sheets

under a "flex-time" schedule that allows all employees to start work

any time between 7:00 and 9:00 a.m. and leave for the day after they

have worked seven and a half hours. Beginning in early 1992, Ward

would often arrive after 9:00 a.m. -- generally between 9:10 a.m. and

9:35 a.m., but occasionally as late as 10:00 a.m. or 12:00 noon. On

those occasions, Ward would still work the required seven and a half

hours.

In December 1992, Ward received a performance evaluation

indicating that his tardiness interfered with his lab duties. Carly

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Ferrin-Gardner, the supervisor of the screening laboratory, also issued

a verbal warning, confirmed in a December 29, 1992 memorandum, noting

that Ward had not made it to work by 9:00 a.m. in over three months.

As a result, Ward was reassigned to a full-time data entry position

working for Thomas Baldwin. Ward maintains that he informed Ferrin-

Gardner at this time that he was late because his arthritis caused

stiffness and pain in the mornings.

In Ward's July 29, 1993 written performance review, Ward's

supervisor again commented on problems related to Ward's tardiness and

his need for constant supervision to complete work in a timely manner.

Shortly afterward, on August 4, 1993, one of Ward's doctors sent a note

to MHRI identifying Ward as a patient who "suffers from an inflammatory

arthritis, which may from time to time cause swelling and pain of the

joints and interfere with activities." Ward was subsequently presented

with the July review along with an August 13, 1993 written warning that

addressed Ward's recurring tardiness despite repeated reprimands and

put him on notice that further problems would result in disciplinary

action up to and including dismissal. Ward challenges the accuracy of

his second review, and again claims that he discussed his arthritis

with Ferrin-Gardner.

On October 21, 1993, Ward's supervisor and another employee

claim to have seen Ward arrive late, but enter 9:00 a.m. on his time

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sheet. Even though Ward denied that he falsified the entry, he was

suspended for three days without pay.

When he returned to work, he submitted an employment form in

which he indicated that he has a disability. He also informed Patricia

Leonard, the director of human resources, that he suffered from

arthritis and requested a modified work schedule to accommodate his

disability. Ward did not provide, and Leonard did not seek, further

medical information, before Leonard rejected his request on the ground

that the ADA does not require an accommodation that would allow Ward to

start work later than other employees -- i.e. the two-hour window in

the morning should be sufficiently flexible. Leonard never discussed

this conversation with Ferrin-Gardner.

On March 4, 1994, after Ward arrived late on two consecutive

days,1 MHRI terminated his employment for excessive tardiness. At the

end of March, Ward's doctor wrote a letter to MHRI, discussing Ward's

arthritic condition and explaining among other things that his symptoms

"tend to be worse after a period of inactivity, and are especially

prominent in the morning."

Ward filed this action on June 20, 1996 alleging that he was

wrongfully discharged and was subject to a hostile environment in

violation of the ADA and Mass. Gen. Laws ch. 151B, § 4(16). The

1 The timesheets from October 27, 1993 to March 4, 1994 are missing
from the record.

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district court granted summary judgment for MHRI on May 7, 1999. On

appeal, Ward only raises his claim that the ADA and state disability

law were violated because he was not provided with reasonable

accommodation of his disability and he was terminated because of his

disability.

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II. STANDARD OF REVIEW

Summary judgment is appropriate if MHRI has shown that there

is no genuine issue as to any material fact and that it is entitled to

judgment as a matter of law. See Fed. R. Civ. P. 56(c). We review the

district court's summary judgment de novo and assess the facts in a

light most favorable to Ward. See Morris v. Government Dev. Bank of

Puerto Rico, 27 F.3d 746, 748 (1st Cir. 1994).

Ward will defeat MHRI's motion for summary judgment if he has

produced "specific facts, in suitable evidentiary form" that establish

the presence of a genuine issue for trial. Id.; see also Fed. R. Civ.

P. 56(c). A "genuine" issue is one supported by such evidence that "a

reasonable jury, drawing favorable inferences," could resolve it in

favor of the nonmoving party. Smith v. F.W. Morse & Co., 76 F.3d 413,

427 (1st Cir. 1996); see also Libertad v. Welch, 53 F.3d 428, 435 (1st

Cir. 1995).

III. AMERICANS WITH DISABILITIES ACT

To state a prima facie claim of disability discrimination

under the ADA,2 a plaintiff must prove by a preponderance of the

evidence that: (1) he was disabled within the meaning of the Act; (2)

he was a qualified individual, i.e. able to perform the essential

2 The Supreme Judicial Court of Massachusetts has indicated that
federal case law construing the ADA should be followed in interpreting
the Massachusetts disability law. See Labonte v. Hutchins & Wheeler,
678 N.E.2d 853, 856 n.5 (Mass. 1997); Wheatley v. American Tel. & Tel.
Co., 636 N.E.2d 265, 268 (Mass. 1994).

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functions of the position with or without reasonable accommodation; and

(3) he was discharged because of his disability. See Criado v. IBM

Corp., 145 F.3d 437, 441 (1st Cir. 1998); Jacques v. Clean-Up Group,

Inc., 96 F.3d 506, 511 (1st Cir. 1996). For purposes of summary

judgment, the district court assumed that the appellant's arthritis was

a disability under the ADA,3 but granted summary judgment because the

remaining two elements of a prima facie case were not satisfied. We

follow the district court's lead and focus on the second and third

elements of the appellant's prima facie case.

At first glance, this seems to be an easy case -- we are

inclined to presume that regular and reliable attendance is an

essential function of any job, and if the appellant has pain and

stiffness in the mornings that prevents him from arriving at work on

time, then he should start his day earlier. After a thorough review of

the record and relevant case law, however, the issues become more

muddled. It is apparent from the appellant's testimony, as supported

by his doctors, that he already wakes up every morning between 4:00 and

5:00 a.m. and that the level of pain and stiffness he will face on a

given morning is unpredictable. Furthermore, there is little evidence

in the record that a regular and predictable schedule is an essential

3 We may not be convinced that the appellant's severe arthritis is a
disability under the ADA, but for purposes of reviewing summary
judgment, there is sufficient evidence that his condition
"substantially limits" major life activities. 29 C.F.R. § 1630.2(g)

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function of Ward's data entry position, or alternatively, that his

requested accommodation -- an open-ended schedule -- would be an undue

burden on his employer. For these reasons, as discussed more fully

below, we must reverse the opinion of the district court.4

A. Qualified Individual

It is Ward's position that he can perform the essential

functions of his job with the reasonable accommodation of a flexible

schedule. MHRI argues that maintaining a predictable and regular

schedule is an essential function of his job, and that because the

record clearly shows that Ward cannot perform this function with or

without reasonable accommodation, he is not a qualified individual

under the ADA.

Our inquiry is somewhat complicated by the interrelationship

between the terms "essential function" and "reasonable accommodation."

See Carr v. Reno 23 F.3d 525, 529 (D.C. Cir. 1994) (discussing the

connection between both concepts in Rehabilitation Act case).5 The

examination of an employee's "qualified" status requires consideration

of available reasonable accommodations. The analysis is generally

4 We need not reach the appellant's additional theory that the
appellee's failure to engage in the interactive process provided an
independent basis for his ADA claim.
5 For our purposes, the standards applied in the Rehabilitation Act of
1973 are identical to those of the ADA. See Jacques v. Clean-Up Group,
Inc., 96 F.3d 506, 513 n.7 (1st Cir. 1996) (citing 29 C.F.R. § 1630.1,
app. (1995)).

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broken into two steps: (1) whether the employee could perform the

essential functions of the job; (2) if not, whether any reasonable

accommodation by the employer would enable him to perform those

functions. See White v. Stone, 45 F.3d 357, 361 (10th Cir. 1995)

(citing cases); Tyndall v. National Educ. Ctrs. Inc. of California, 31

F.3d 209, 213 (4th Cir. 1994) (citing Chandler v. City of Dallas, 2

F.3d 1385, 1393-94 (5th Cir. 1993)).

Particularly with attendance cases -- as opposed to a simpler

case where, for instance, a disabled employee needs to sit rather than

stand to perform the essential functions of a job -- it is difficult to

separate the analysis in this manner, and as a result courts vary in

their treatment of attendance problems in the ADA context. Some courts

focus on whether a fixed schedule is an essential requirement for the

specific job and end the analysis there. See, e.g., Laurin v.

Providence Hosp., 150 F.3d 52, 59-61 (1st Cir. 1998); Tyndall, 31 F.3d

at 213-14; cf. EEOC v. AIC Sec. Investigation, Ltd., 820 F. Supp. 1060,

1063-64 (N.D. Ill. 1993) (denying summary judgment due to questions of

fact whether regular attendance is essential function of job). Some

courts conclude that a fixed schedule is essential but move on to

consider whether there is an effective reasonable accommodation. See,

e.g., Jacques, 96 F.3d at 512; Carr, 23 F.3d at 529; Wojciechowski v.

Emergency Technical Servs. Corp., 1997 WL 164004, *2-*4 (N.D. Ill.);

Aquinas v. Federal Express Corp., 940 F. Supp. 73, 79 (S.D.N.Y. 1996);

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Fritz v. Mascotech Automotive Sys. Group, Inc., 914 F. Supp. 1481,

1488-90 (E.D. Mich. 1996); Vorhies v. Pioneer Mfg. Co., 906 F. Supp.

578, 581-82 (D. Colo. 1995); Hendry v. GTE North, Inc., 896 F. Supp.

816, 825-27 (N.D. Ind. 1995); Barfield v. Bell South Telecomms., Inc.,

886 F. Supp. 1321, 1325-27 (S.D. Miss. 1995). And others confine the

attendance issue to whether a modified schedule is a reasonable

accommodation to perform the essential functions of the job. See,

e.g., Heise v. Genuine Parts Co., 900 F. Supp. 1137, 1153-54 (D. Minn.

1995); Dutton v. Johnson County Bd. of County Comm'rs, 859 F. Supp.

498, 506-09 (D. Kan. 1994); Kennedy v. Applause, Inc., 1994 WL 740765,

*6-*7 (C.D. Cal. 1994), aff'd, 90 F.3d 1477 (9th Cir. 1996); Guice-

Mills v. Derwinski, 772 F. Supp. 188, 199 (S.D.N.Y. 1991).

Rather than select one approach, we proceed by considering

first whether attendance is an essential function of Ward's position,

and second, if it is not an essential function, is a modified schedule

a reasonable accommodation that will allow Ward to perform the

essential functions of his job.

1. Essential Function

An essential function is a "fundamental job dut[y]" of the

employment position the individual with a disability holds or desires.

Laurin, 150 F.3d at 56-57. The term does not include "marginal

functions of the position," but at the same time it "may be more

encompassing than such core job requirements as an employee's technical

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skills and experience even including such individual or idiosyncratic

characteristics as scheduling flexibility." Id. at 57, 59 n.6

(internal citations omitted).

The district court deferred to MHRI's judgment that "regular

and timely attendance during prescribed work hours" is an essential

function of Ward's job. In doing so, the court noted that MHRI

enforces its attendance policy for all of its employees. But that fact

alone does not invariably lead to a conclusion that regular and

reliable attendance is an essential function of every position at MHRI.

While we generally give substantial weight to the employer's view of

job requirements in the absence of evidence of discriminatory animus,

see Laurin, 150 F.3d at 57-61; EEOC v. Amego, Inc., 110 F.3d 135, 144-

45 (1st Cir. 1997), it is only one factor in the analysis. EEOC

interpretive regulations indicate additional fact-intensive

considerations, including among others: written job descriptions,

consequences of not requiring the function, work experience of past

incumbents, and work experience of current incumbents. See 29 C.F.R.

§ 1630.2(n)(3); Laurin, 150 F.3d at 56-57. Unfortunately, the

applicable factors do not shed much light on whether a regular and

predictable schedule is an essential function of a data entry clerk.

Attendance is not specific to any factor but presumably applies to and

affects each of them.

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 Granted, a regular and reliable schedule may be an essential

element of most jobs. See Tyndall, 31 F.3d at 213 (citing cases);

Carr, 23 F.3d at 530. However, as indicated below, resolution of the

issue in each case requires a fact-intensive inquiry into the pattern

of the attendance problem and the characteristics of the job in

question. And the defendant, who has better access to the relevant

evidence, should bear the burden of proving that a given job function

is an essential function. See Benson v. Northwest Airlines, Inc., 62

F.3d 1108, 1113 (8th Cir. 1995); Monette v. EDS Corp., 90 F.3d 1173,

1182 n.8, 1184 (6th Cir. 1996) (discussing 42 U.S.C. § 12112(b)(6));

cf. Stone v. City of Mount Vernon, 118 F.3d 92, 99-100 (2d Cir. 1997)

(reversing because there was insufficient evidence to support claimed

essential function), cert. denied, 522 U.S. 1112 (1998); White, 45 F.3d

at 362 (examining employer's evidence in support of position's

essential functions).

We find nothing in the record to support the appellee's

position that a set schedule is an essential requirement for Ward's

job. MHRI insists that Ward requires supervision and that, therefore,

arrival by 9:00 a.m. is essential. This determination is apparently

based on performance evaluations that suggest that Ward has performed

poorly, in addition to his tardiness problem. However, the appellee

does not contend that Ward was terminated for poor performance, only

for recurring tardiness. And Ward challenges the accuracy of his

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latest performance review, claiming that he was given no opportunity,

as per normal MHRI policy, to respond to the evaluation. Thus, there

is some dispute as to whether Ward's performance was, in fact,

deficient, and that dispute undermines MHRI's sole explanation for its

judgment that a regular and reliable schedule is an essential

requirement of Ward's position. Moreover, the existence of a flexible

schedule that permits Ward to work from 7:00 a.m. - 3:00 p.m. or 9:00

a.m. - 5:00 p.m., regardless of his supervisor's schedule, creates the

obvious impression that MHRI is not bothered by some periods of

unsupervised work. We must infer that there is a genuine dispute of

fact over Ward's need for constant supervision.

What is noticeably absent from the record is any evidence

that the nature of Ward's position requires that he be present during

specific hours of the day. In fact, the record suggests otherwise.

Ward has no duties other than data entry and his work is only time-

sensitive in that it must be completed before the laboratory opens the

next day. And other than the disputed issue of supervision, MHRI did

not suggest that it is essential that Ward's work schedule

significantly overlap with other lab employees -- e.g. for transfers of

information or to meet time-sensitive deadlines. Based on this record,

a reasonable factfinder could conclude that a regular and predictable

schedule is not an essential function of Ward's position so long as he

works the requisite 7.5 hours per day. Compare Laurin, 150 F.3d at 59-

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61 (considering "exceptional" scheduling demands upon 24-hour hospital

maternity unit and general undesirability of night shifts in concluding

that shift flexibility is essential function); Tyndall, 31 F.3d at 213-

14 (observing that teaching position requires regular presence on

campus to teach assigned courses during scheduled class times);

Wojciechowski, 1997 WL 164004 at *2-*3 (considering that salesperson

position requires daily contact with customers, cold calls, and

secondary functions of back-up on incoming sales calls, daily mail, and

daily environmental cleanup proposal preparation); Aquinas, 940 F.

Supp. at 79 (accepting Fed Ex strict attendance policy due to time-

sensitive nature of job); Fritz, 914 F. Supp. at 1489 (observing that

in addition to evidence of enforcement of punctuality policy, defendant

pointed to "the shortage of computer equipment and the need to

occasionally consult with and supervise Plaintiff as he performed his

work"); Vorhies, 906 F. Supp. at 581 (observing employer's testimony

that plaintiff had unique duties which had to be performed daily);

Heise v. Genuine Parts Co., 900 F. Supp. 1137, 1152-53 (D. Minn. 1995)

(considering whether daily customer contact is essential function of

salesperson); Hendry, 896 F. Supp. at 825 (concluding that service

clerk position required four basic functions to be performed daily);

Barfield, 886 F. Supp. at 1326 (observing that sales representative has

daily duties such as handling customers' complaints and inquiries); AIC

Sec. Investigation, Ltd., 820 F. Supp. at 1063-64 (denying summary

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judgment due to question of fact whether Executive Director position

had heavy day-to-day demands that were affected by absence).

2. Reasonable Accommodation

A reasonable accommodation "enable[s] a qualified individual

with a disability to perform the essential functions of [his]

position." See 29 C.F.R. § 1630.2(o)(ii). Ward contends that with the

reasonable accommodation of an open schedule, he could perform the

essential functions of his job – 7.5 hours of data entry.

We decline to hold that the flexible schedule Ward proposes

is per se unreasonable.6 The ADA explicitly states that "job

6 Contrary to MHRI's assertion that "numerous courts have held that,
as a matter of law, open-ended 'work when able' schedules are not
reasonable accommodations," Appellee's Brief at 34, the referenced
courts all engage in some level of factual inquiry into the specific
accommodation and the burden on the employer. See Carr, 23 F.3d at 529
(relying on the specific nature of the position and employer in
concluding that requested accommodation would impose undue hardship);
Kimbro v. Atlantic Richfield Co., 889 F.2d 869, 878 & n.8 (9th Cir.
1989) (finding "clear support in the record" for determination that an
open ended schedule "would have imposed an undue hardship" based on
valid safety concerns for an individual machinist working alone after
hours); Kennedy, 1994 WL 740765 at *7 (holding that plaintiff failed to
show she could perform the essential functions of her job with the
requested accommodation and that the requested accommodation to work 10
hours one day and 2 hours the next as her condition permitted was
unreasonable as a matter of law); Smartt v. Charlotte Housing Auth.,
1998 WL 760866, *3-*4 (W.D.N.C. 1998) (observing that the medical
evidence refuted need for requested accommodation); Palazzolo v. Galen
Hosps. of Texas, Inc., 1997 WL 837951, *3-*4 (N.D. Ga. 1997) (observing
that accommodation would require restructuring the closing chef
position before concluding that open schedule is unreasonable); Hypes
v. First Commerce Corp., 3 F. Supp. 2d 712, 719 (E.D. La. 1996)
(holding that "[an open ended schedule] hardly seems a reasonable
accommodation in this case," where the plaintiff's work affects the
schedule and efficiency of others in his department.).

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restructuring" and "part-time or modified work schedules" are potential

reasonable accommodations. 42 U.S.C. § 12111(9); Criado, 145 F.3d at

441, 443 (citing statute). Nothing in that explicit language implies

that a modified schedule must be regular or predictable. But see

Kennedy, 1994 WL 740765 at *6 (citing Walders v. Garrett, 765 F. Supp.

303, 314 (E.D. Va. 1991)).

Therefore, MHRI must submit some evidence in support of its

position that the requested accommodation would impose undue hardship.

See 42 U.S.C. § 12112(b)(5)(A); Stone v. City of Mt. Vernon, 118 F.3d

92, 97 (2d Cir. 1997) (in practice "show[ing] that the accommodation is

not reasonable, or that it imposes an undue hardship" "'amounts[] to

the same thing'" (quoting Borkowski, 63 F.3d at 138)); Monette, 90 F.3d

at 1183; Benson, 62 F.3d at 1112; White, 45 F.3d at 361. However,

rather than produce evidence that a flexible schedule would present

"significant difficulty or expense," 29 C.F.R. § 1630.2(p)(1), MHRI has

offered only general statements regarding the snowball effect of such

an accommodation – it would eliminate employers' control over the

workplace and ability to maintain any standards. Such an argument runs

counter to the general principle behind the ADA that imposes a duty on

the employer to modify some work rules, facilities, terms, or

conditions to enable a disabled person to work, and if MHRI's position

were given credence, it would defeat almost any reasonable

accommodation.

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 Instead, to meet its burden, MHRI needs to produce at least

some modicum of evidence showing that an open-ended schedule would be

a hardship, financial or otherwise. See 29 C.F.R. § 1630.2(p)7; e.g.,

Soto-Ocasio v. Federal Express Corp., 150 F.3d 14, 20 (1st Cir. 1998)

(recognizing that requested accommodation would require that employer

reallocate other employees to complete appellant's data entry work --

6-9 hours' worth of work per day -- to ensure that her deadlines were

met); Carr, 23 F.3d at 529 (concluding that "[t]he U.S. Attorney's

7 The regulations provide the following factors to be considered:

(i) The nature and net cost of the accommodation needed
under this part, taking into consideration the availability
of tax credits and deductions, and/or outside funding;

(ii) The overall financial resources of the facility or
facilities involved in the provision of the reasonable
accommodation, the number of persons employed at such
facility, and the effect on expenses and resources;

(iii) The overall financial resources of the covered entity,
the overall size of the business of the covered entity with
respect to the number of its employees, and the number, type
and location of its facilities;

(iv) The type of operation or operations of the covered
entity, including the composition, structure and functions
of the workforce of such entity, and the geographic
separateness and administrative or fiscal relationship of
the facility or facilities in question to the covered
entity; and

(v) The impact of the accommodation upon the operation of
the facility, including the impact on the ability of other
employees to perform their duties and the impact on the
facility's ability to conduct business.

29 C.F.R. § 1630.2(p).

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Office 4:00 p.m. deadline renders a flexible schedule an undue

hardship" because others would have to do plaintiff's work on a regular

basis); Guice-Mills, 772 F. Supp. at 199 (reasoning that requested

accommodation of 10:00 a.m. start time for Head Nurse was unreasonable

burden on hospital because her duties would have to be reassigned).

For example, MHRI could have introduced evidence that in order to

accommodate Ward, it would need to keep the laboratory open

indefinitely at significant cost (extra hours for security personnel or

janitorial staff) or that his duties would need to be subsumed by a co-

worker. MHRI has only suggested that it would be a burden to require

Ward's supervisor to match his schedule, but as discussed above, there

is a factual dispute over Ward's need for constant supervision to

perform the essential functions of his job.

B. Discharged Because of Disability

Because we also find that there is a genuine dispute as to

whether Ward's tardiness was caused by his disability, we must reverse

the district court's decision. It is undisputed that Ward informed his

employer that he had a disability prior to his termination through the

new employment application and his conversation with Leonard. The

medical evidence unequivocally establishes that Ward suffers from

severe arthritis "characterized by marked increase in symptoms of pain

and stiffness after periods of immobilization" such as sleeping. App.

at 104 (letter of Dr. Jeffrey R. Wohlgethan, May 13, 1998). Symptoms

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are "most evident in the morning" and stiffness can last up to several

hours. Id. The pain also interferes with his ability to sleep to such

an extent that he estimates that he averages about two hours of sleep

per night. See id. at 195. Although one of his doctors recommended

that he make an effort to go to bed earlier and to take naps, see id.

at 90, that same doctor later stated that he could draw no conclusion

that altering sleep habits would enable Ward to arrive at work on time,

see id. at 741. According to Ward's testimony regarding his daily

ritual, he always showers at night, usually retires to bed around 10:00

p.m. and arises between 4-5:00 a.m. Before he can get out of bed, he

must use a blow dryer to heat his legs for 15 - 45 minutes until he can

move. And when he is ready, with much difficulty he makes his way down

three flights of stairs, which requires several breaks. See id. at

195-97. As his doctor explained, "if he picked an early enough time"

to cover the maximum delay, it "might be so early that he would have to

go to bed at three in the afternoon." Id. at 159.

The district court, relying on Amego, 110 F.3d at 149, and

Leary v. Dalton, 58 F.3d 748, 753 (1st Cir. 1995), concluded that even

if the appellant "was fired 'because of' his tardiness, it does not

follow that he was fired 'because of' the arthritis." Opinion at 13.

However, the facts of this case clearly do not support an instance of

the but/for reasoning this circuit criticized in those cases. In

Amego, the appellant was terminated because she could not be trusted to

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handle the medical-related functions of her job -- overseeing and

administering medication -- due to her attempted suicide through

medication overdose. See Amego, 110 F.3d at 144. The employee was

terminated because of the method of attempted suicide, which does not

flow directly from her depression. See id. at 149. Similarly in

Leary, we upheld summary judgment against an employee who was

terminated for misconduct that resulted from his alcoholism. See

Leary, 58 F.3d at 753-54. In contrast, there is arguably a conduct

connection in Ward's case -- the tardiness flows directly from the

arthritis -- and therefore, a finding against him on this element was

improper.

IV. CONCLUSION

Because there exist genuine disputes of material facts as to

the appellant's performance and whether he was discharged because of

his disability, and because MHRI has not established that it is

entitled to judgment as a matter of law, we reverse and remand for

proceedings consistent with this opinion. Of course, at trial, MHRI is

entitled to present evidence to rebut evidence that Ward has either

submitted or will submit relating to each of the issues discussed

herein.

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