Jerry O. Smith v. City of Des Moines

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No. 95-3802
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Jerry O. Smith, *
*
Appellant, *
*
v. *
*
City of Des Moines, Iowa, * Appeal from the United States
* District Court for the
Appellee. * Southern District of Iowa.
___________________________ *
*
Equal Employment Opportunity *
Commission, *
*
Amicus Curiae. *

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Submitted: May 17, 1996

Filed: November 12, 1996
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Before BOWMAN, HEANEY, and WOLLMAN, Circuit Judges.

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BOWMAN, Circuit Judge.

Appellant Jerry O. Smith brought suit against the City of Des Moines,
claiming that he was fired from his position as a city firefighter in
violation of the Age Discrimination in Employment Act of 1967 (ADEA), 29
U.S.C. §§ 621-634 (1994), and the Americans With Disabilities Act of 1990
(ADA), 42 U.S.C. §§ 12101-12213 (1994). The District Court1 granted
summary judgment in favor of the city on all of Smith's claims. Smith
appeals, and we affirm.

1
The Honorable Harold D. Vietor, United States District Judge
for the Southern District of Iowa.
 I.

At the time of his dismissal, Smith had been a firefighter with the
Des Moines Fire Department for thirty-three years and had risen to the rank
of fire captain. In 1988, the city began to require annual testing of all
firefighters at the rank of captain or below to determine whether they
could safely fight fires while wearing a self-contained breathing apparatus
(SCBA). Each firefighter underwent spirometry testing, which gauges
pulmonary function by measuring the capacity of the lungs to exhale. Any
firefighter whose forced expiratory volume in one second (FEV1) exceeded
70% of lung capacity was approved to wear a SCBA. If a firefighter scored
less than 70%, he or she was required to take a maximum exercise stress
test, which measures the capacity of the body to use oxygen effectively.
The city required firefighters to establish a maximum oxygen uptake (VO2
max) of at least 33.5 milliliters per minute per kilogram of body weight
in order to pass the stress test.

Smith failed both tests in 1988 and was not approved to wear a SCBA
that year. In 1989, 1990, and 1991, Smith passed the spirometry test and
was approved for SCBA use. In August 1992, Smith narrowly failed the
spirometry test and was referred to Dr. Steven K. Zorn, a consultant to the
city, for further testing. In Dr. Zorn's office, Smith passed the
spirometry test but registered a VO2 max of only 22.2 on the stress test.
The fire department placed Smith on sick leave. In January 1993, Smith
returned to Dr. Zorn but scored only 21.1 on a stress test. The fire
department offered to allow Smith to remain on sick leave until April, when
he would turn age fifty-five and thus be eligible for retirement.

In the interim, the fire department sent Smith to another physician,
Dr. John Glazier, for a second opinion. Additionally, when Smith did not
file for retirement in April, the fire chief

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filed an application for disability retirement on Smith's behalf. Before
ruling on this application, the state pension board required Smith to be
examined by a panel of three additional physicians. Dr. Glazier did not
perform a stress test, but the panel of three physicians did (Smith's VO2
max was 28.9). All four physicians concluded that Smith was physically
capable of working as a firefighter. After receiving these
recommendations, the pension board denied the application for disability
retirement, finding that Smith was not disabled from working as a
firefighter.

The fire department did not permit Smith to return to work but did
offer to place him on leave of absence with benefits until July 1, 1994,
when he would be eligible for maximum pension benefits. Smith did not file
for retirement at that time, however, and the city discharged him on July
18, 1994 for failure to meet the fire department's physical fitness
standards.

After obtaining right-to-sue letters from the Equal Employment
Opportunity Commission (EEOC) and the Iowa Civil Rights Commission, Smith
brought suit against the city in federal district court, raising claims
under the ADEA, the ADA, and the Iowa Civil Rights Act, Iowa Code Ann.
§§ 216.01-.20 (West 1994 & Supp. 1996). The District Court granted summary
judgment in favor of the city on all counts. The court, assuming Smith
could establish that the city's testing standards have a disparate impact
on older firefighters, held that the city had established a "business
necessity" defense because firefighters require "a high standard of
physical fitness." Similarly, Smith's ADEA disparate treatment claim
failed because he was not qualified for the job, and the state law claim
failed because Iowa law mirrors federal law. The District Court also
concluded that Smith did not have a disability and granted summary judgment
for the city on his ADA claim. Smith's appeal raises only the disparate
impact and ADA claims.

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 We have jurisdiction over Smith's appeal pursuant to 28 U.S.C. § 1291
(1994). Our review of a grant of summary judgment is de novo. Krenik v.
County of Le Sueur, 47 F.3d 953, 959-60 (8th Cir. 1995). We will affirm
"only if the record, when viewed in the light most favorable to the
nonmoving party and giving the nonmoving party the benefit of all
reasonable factual inferences, shows no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law." Weber v.
American Express Co., 994 F.2d 513, 515 (8th Cir. 1993).

II.

A.

We consider first the city's argument, which the District Court
rejected, that a claim of disparate impact is not cognizable under the
ADEA. Disparate impact claims challenge "'employment practices that are
facially neutral in their treatment of different groups but that in fact
fall more harshly on one group than another and cannot be justified by
business necessity.'" Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993)
(quoting International Bhd. of Teamsters v. United States, 431 U.S. 324,
335-36 n.15 (1977)). A disparate impact plaintiff need not prove a
discriminatory motive. Id.

Like Title VII of the Civil Rights Act of 1964, to which the
disparate impact theory was first applied in Griggs v. Duke Power Co., 401
U.S. 424 (1971), the ADEA contains two prohibitions relevant here:

It shall be unlawful for an employer--

(1) to fail or refuse to hire or to discharge any
individual or otherwise discriminate against any individual
with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's age;

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 (2) to limit, segregate, or classify his employees in any
way which would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely affect his
status as an employee, because of such individual's age . . . .

29 U.S.C. § 623(a) (1994).

We have on several occasions applied disparate impact analysis to age
discrimination claims. See Houghton v. SIPCO, Inc., 38 F.3d 953, 958-59
(8th Cir. 1994) (reversing plaintiff's verdict because of erroneous jury
instruction); Nolting v. Yellow Freight Sys., Inc., 799 F.2d 1192, 1196-99
(8th Cir. 1986) (affirming judgment for defendant); Leftwich v. Harris-
Stowe State College, 702 F.2d 686, 690-93 (8th Cir. 1983) (affirming
judgment for plaintiff).

Several years ago, in a disparate treatment case under the ADEA, the
Supreme Court noted that it had never decided whether a disparate impact
theory is available under the ADEA. Hazen Paper, 507 U.S. at 610. In a
concurring opinion, three Justices stated that "there are substantial
arguments that it is improper to carry over disparate impact analysis from
Title VII to the ADEA." Id. at 618 (Kennedy, J., concurring). Other
language in the lead opinion can be read as a suggestion by the Court that
the ADEA does not permit disparate impact actions. See id. at 610
("Disparate treatment, thus defined, captures the essence of what Congress
sought to prohibit in the ADEA."); id. at 611 ("When the employer's
decision is wholly motivated by factors other than age, the problem of
inaccurate and stigmatizing stereotypes disappears.").

Before the Supreme Court decided Hazen Paper, many courts of appeals
had recognized a disparate impact theory under the ADEA. See EEOC v.
Francis W. Parker Sch., 41 F.3d 1073, 1079 n.1 (7th Cir. 1994) (Cudahy, J.,
dissenting), cert. denied, 115 S. Ct. 2577 (1995). Since Hazen Paper,
several circuits have revisited the issue. See DiBiase v. SmithKline
Beecham Corp., 48 F.3d 719, 732-

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34 (3d Cir.) (opinion of Greenberg, J., alone) (doubting disparate impact
theory cognizable), cert. denied, 116 S. Ct. 306 (1995); Lyon v. Ohio Educ.
Ass'n & Prof'l Staff Union, 53 F.3d 135, 139 n.5 (6th Cir. 1995) (noting
doubt as to disparate impact theory); Francis W. Parker Sch., 41 F.3d at
1076-78 (suggesting disparate impact theory not cognizable); Mangold v.
California Pub. Utils. Comm'n, 67 F.3d 1470, 1474 (9th Cir. 1995)
(suggesting disparate impact theory is cognizable); Ellis v. United
Airlines, Inc., 73 F.3d 999, 1007-10 & n.12 (10th Cir.) (holding disparate
impact theory not cognizable under § 623(a)(1) and suggesting it is not
cognizable under § 623(a)(2)), cert. denied, 116 S. Ct. 2500 (1996).2

Our opinion in Houghton, however, postdated Hazen Paper and continued
to recognize the viability of disparate impact actions under the ADEA. See
Houghton, 38 F.3d at 958-59.3 As a result, even if we believed that Hazen
Paper cast doubt on the validity of Leftwich and Nolting, Houghton
represents the law of this Circuit,

2
Some confusion has resulted from a difference between the
ADEA and Title VII. Section 623(a)(2) of the ADEA governs employer
conduct with respect to "employees" only, while the parallel
provision of Title VII protects "employees or applicants for
employment." Compare 29 U.S.C. § 623(a)(2) (1994) with 42 U.S.C.
§ 2000e-2(a)(2) (1994). Because Francis W. Parker School and Ellis
were disparate impact actions involving applicants for employment,
the plaintiffs in those cases were limited to relying on
§ 623(a)(1), which covers employees and applicants.

In this case, because Smith was an employee of the city, he
may rely on either subsection of section 623(a). Our opinion in
Leftwich (involving an applicant) established that a plaintiff may
base a disparate impact claim on § 623(a)(1). Leftwich, 702 F.2d
at 690. And the Supreme Court has made it clear in the Title VII
context that the second subsection can be the basis for such a
claim. See, e.g., Lorance v. AT&T Techs., Inc., 490 U.S. 900, 904
(1989); Connecticut v. Teal, 457 U.S. 440, 448-49 (1982); Griggs,
401 U.S. at 426 n.1.
3
Like this case, Houghton involved incumbent employees. Id.
at 956. The opinion does not specify the subsection of § 623(a) on
which the disparate impact action was premised.

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which we follow absent a "clear indication" that it has been overruled.
FDIC v. Bowles Livestock Comm'n Co., 937 F.2d 1350, 1354 (8th Cir. 1991).
We conclude that disparate impact claims under the ADEA are cognizable.

B.

We assume, as the District Court did, that Smith has established a
prima facie case of disparate impact, that is, that he has demonstrated
"that a facially neutral employment practice actually operates to exclude
from a job a disproportionate number of persons protected by the ADEA."
Leftwich, 702 F.2d at 690. We therefore turn to Smith's argument that the
District Court erroneously granted summary judgment to the city based on
the so-called "business necessity" defense.

This defense is derived in part from the cases in which the Supreme
Court developed the disparate impact doctrine under Title VII, see, e.g.,
Dothard v. Rawlinson, 433 U.S. 321, 332 n.14 (1977) (physical requirements
for prison guards with disparate impact on women "must be shown to be
necessary to safe and efficient job performance"), and in part from a
provision of the ADEA which states that an employment practice is not
unlawful "where the differentiation is based on reasonable factors other
than age." 29 U.S.C. § 623(f)(1) (1994).4 We recognize that in the Title
VII context the business necessity defense has undergone several
transformations in recent years. See Wards Cove Packing Co. v. Atonio, 490
U.S. 642, 659 (1989) (placing burden of persuasion on

4
Title VII contains no provision parallel to the "reasonable
factors other than age" language in the ADEA. See 42 U.S.C.
§ 2000e-2(e) (1994). Nevertheless, the EEOC, as amicus curiae and
in its regulations interpreting the ADEA, suggests that the
business necessity defense is the same under Title VII and the
ADEA. See 29 C.F.R. § 1625.7(d)-(e) (1995). For reasons that will
be made clear in the text of this opinion, we need not decide this
issue in this case.

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plaintiff and broadening the defense); Civil Rights Act of 1991, Pub. L.
No. 102-166, § 105, 105 Stat. 1071, 1074-75 (codified at 42 U.S.C. § 2000e-
2(k) (1994)) (attempting to restore pre-Wards Cove law). Our most recent
ADEA disparate impact opinion reflected the shift to the Wards Cove
standard, see Houghton, 38 F.3d at 959, but we have not yet considered
whether the Civil Rights Act of 1991 has affected the ADEA's business
necessity defense.

We need not decide that issue in this case. In granting summary
judgment for the city, the District Court clearly placed the burden of
persuasion on the city in a manner consistent with the pre-Wards Cove
standard. For purposes of our analysis, we therefore assume, without
deciding, that pre-Wards Cove law--the law most favorable to Smith--applies
here. In the context of a physical job requirement, the pre-Wards Cove
business necessity defense places the burden of persuasion on the defendant
to show that the requirement has "a manifest relationship to the employment
in question," Griggs, 401 U.S. at 432, and that it is "necessary to safe
and efficient job performance." Dothard, 433 U.S. at 332 n.14. See McCosh
v. City of Grand Forks, 628 F.2d 1058, 1062 (8th Cir. 1980) (applying this
test to Title VII case involving job requirements for police sergeants);
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1119 (11th Cir. 1993)
(holding, in Title VII case involving firefighters and SCBAs, that
"[m]easures demonstrably necessary to meeting the goal of ensuring worker
safety are therefore deemed to be 'required by business necessity'").

It follows that the city, as the party with the burden of persuasion
on the business necessity defense, was required to support its summary
judgment motion "with evidence that would entitle it to a directed verdict
if not controverted at trial." Firemen's Fund Ins. Co. v. Thien, 8 F.3d
1307, 1310 (8th Cir. 1993) (citing Celotex Corp. v. Catrett, 477 U.S. 317,
331 (1986) (Brennan, J., dissenting)). If the city met that burden, the
burden of production then shifted to the nonmoving party, Smith, to

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show the existence of a genuine issue of fact for trial. Id. Using this
framework, we review Smith's objections to the District Court's grant of
summary judgment.

We conclude that the city met its burden on the business necessity
defense by supporting its motion with evidence that would entitle it to a
directed verdict if not controverted by evidence sufficient to create a
jury issue. On the job-relatedness issue, the city presented undisputed
evidence that a captain is frequently involved in fire suppression
activities when a company arrives at a fire scene and that the captain
wears a SCBA under those circumstances. Joint Appendix (J.A.) at 157-59,
302. This evidence alone is sufficient to carry the city's burden of
showing that its fitness standard has a "manifest relationship" to the
position in question. Griggs, 401 U.S. at 432.

The other element of the defense is whether the standard is necessary
to safe and effective job performance. The city's evidence on this issue
is more complicated and begins with some of the extensive regulations
governing the manner in which the city operates its fire department.
Federal regulations require the fire department to provide firefighters
with SCBAs "when such equipment is necessary to protect the health of the
employee." 29 C.F.R. § 1910.134(a)(2) (1995).5 The city may not assign
firefighters to tasks requiring use of a SCBA unless they are "physically
able to perform the work and use the equipment." Id. § 1910.134(b)(10).
The city must review the medical status of SCBA users periodically. Id.
The American National Standards Institute (ANSI) standard on physical
qualifications for respirator use recommends spirometry

5
The federal regulations do not apply to the city directly.
See 29 U.S.C. § 652(5) (1994) (excluding states and political
subdivisions from coverage of Occupational Safety and Health Act).
The Iowa occupational safety and health laws do apply to the city,
however, Iowa Code Ann. § 88.3(5) (West Supp. 1996), and the
applicable state regulations adopt the federal regulations by
reference. Iowa Admin. Code r. 347-10.20(88) (1996).

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testing as a screening mechanism for SCBA users and suggests stress testing
for persons who use SCBAs under strenuous conditions. J.A. at 338. ANSI
recommends a 70% FEV1 threshold for spirometry testing but does not specify
an acceptable result for stress testing. Id.

To reach its determination that a VO2 max of 33.5 was the appropriate
threshold for stress testing, the city relied on a review of the relevant
medical literature by Dr. Zorn. A number of studies suggest that
firefighters consume between 25 and 35 milliliters of oxygen per kilogram
per minute while suppressing a fire. J.A. at 200. One study in particular
involved 150 firefighters performing a series of tasks in a simulated fire-
suppression environment. Id. at 212-22. The authors of that study
determined that a VO2 max of 33.5 was the minimum required to allow the
firefighters to complete the simulation successfully. Id. at 218. The
authors then repeated the simulation with 32 additional firefighters. Id.
Of those with a VO2 max less than 33.5, only 40% (4 of 10) completed the
simulation successfully. Id. On the other hand, of those with a VO2 max
of 33.5 or more, 86% (19 of 22) completed the simulation successfully.6
Id. After reviewing this study and others, Dr. Zorn concluded that 33.5
was the minimum satisfactory VO2 max requirement for the Des Moines
firefighters. J.A. at 83. This evidence would clearly be sufficient to
entitle the city to a directed verdict on the issue of necessity if it were
uncontroverted. See Firemen's Fund, 8 F.3d at 1310.

We now turn to the evidence presented by Smith in opposition to the
city's summary judgment motion. Smith does not dispute that firefighting
is a strenuous occupation or that the city has a legitimate interest in
determining whether its employees can

6
The city's brief repeatedly refers to this pass rate as "at
least 70%." We are not sure why the city uses this figure, but it
makes little difference to our analysis whether the number is 70%
or 86%.

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perform those duties safely. On the issue of job-relatedness, he does
argue that as a captain, he did not perform the same duties as a line
firefighter, and that the 33.5 threshold is therefore not related to his
particular position. But as we noted above, it is undisputed that Smith
and other captains do enter burning buildings and perform fire suppression
activities when their companies arrive at a fire scene; as Smith himself
stated, "if we were the first to arrive, I would don a mask, go right in
and attack the fire." J.A. at 301-02. Although Smith also stated that he
would "[v]ery seldom" perform tasks like knocking down walls, id., this
evidence is insufficient to create a jury issue on job-relatedness in light
of the uncontroverted evidence that he was required to fight fires while
wearing a SCBA.

On the issue of whether the requirement is necessary to safe and
effective job performance, Smith argues that the opinions of the panel of
physicians who determined he was not disabled for purposes of disability
benefits, plus the opinion of Dr. Glazier that Smith is capable of
performing exertional tasks while wearing a SCBA, create a fact issue. We
disagree. We note first that these physicians examined Smith in the
context of a disability retirement proceeding. A member of a police or
fire department in Iowa is eligible for disability benefits if the
examining physicians certify "that the member is mentally or physically
incapacitated for further performance of duty, that the incapacity is
likely to be permanent, and that the member should be retired." Iowa Code
Ann. § 411.6(3) (West Supp. 1996). Even though the disability
determination was phrased in broader language than the statute ("He does
not have any limitation which would preclude him from working as a
firefighter . . . and in our opinion he should be reinstated fully to work
as a firefighter," J.A. at 360), the physicians' conclusions lack probative
value on the relevant issue in this case: whether the fitness standard set
by the city is necessary to safe and efficient job performance. The
opinions of these physicians, aside from being geared to the question of

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Smith's entitlement to disability benefits, do not appear to have
considered the solid scientific studies on which the city based the 33.5
VO2 max standard.7 Such evidence affords no basis for allowing a jury to
second-guess the city's well-supported and reasonable conclusion that, in
the interest of the safety of its firefighters (including captains) and
their effective job performance, the appropriate place to draw the line was
at a VO2 max of 33.5. We thus conclude that Smith has not demonstrated a
factual dispute on this issue.

To summarize our conclusions: fitness and the ability to perform
while wearing a SCBA are undoubtedly job-related and necessary requirements
for firefighters. The dispute in this case is not whether firefighters
must be physically fit, but how fitness can be most appropriately measured
and how the city may distinguish those firefighters who are probably
capable of performing the job from those firefighters who are probably not
capable. The city has not proceeded arbitrarily, but rather has carefully
developed a standard based upon the available medical literature and using
the

7
Two members of the panel of three physicians later reviewed
the primary study, detailed above, on which the city relied in
setting the 33.5 VO2 max standard. They concluded:

Dr. Moseley and I do not believe that this study
justifies identifying Mr. Smith as unable to fulfill the
duties of a firefighter. In fact, Mr. Smith's exercise
capacity was 110% [of] predicted for his age and size.
I therefore believe that Mr. Smith is fully capable of
working as a firefighter and recommend that he return to
work.

J.A. at 361. This evidence comes closer to addressing the
necessity of the 33.5 standard, but it is ultimately only an
opinion that Smith be permitted an exception to the fire
department's policy. The physicians do not suggest that the study
is inaccurate or that the fitness standard is unreasonable. We
also note that whether Smith's performance on the stress test
exceeded the physicians' expectations is irrelevant.

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best test available for measuring fitness, the stress test.8 J.A. at 81.
The literature indicates that a high proportion of firefighters with a VO2
max above 33.5 can perform fire suppression tasks successfully, but a much
lower proportion of those with a VO2 max below 33.5 can do so. Smith
argues, and the physicians' evaluations suggest, that some firefighters
with lower VO2 max scores--Smith in particular--may be able to perform
their jobs. This may well be true, but the law does not require the city
to put the lives of Smith and his fellow firefighters at risk by taking the
chance that he is fit for duty when solid scientific studies indicate that
persons with test results similar to his are not. The lack of a precise
or universally perfect fit between a job requirement and actual effective
performance is not fatal to a claim of business necessity, particularly
when the public health and safety are at stake. See McCosh, 628 F.2d at
1062-63; cf. Fitzpatrick, 2 F.3d at 1120-21 (lack of unfortunate incidents
in the past insufficient to create genuine issue of fact as to necessity
of safety requirements). We conclude that Smith has not met his burden of
presenting a triable issue on the business necessity defense.

C.

Smith also argues that he presented evidence of an alternative means
of assessing fitness that would have less of a disparate impact on older
firefighters. In particular, he suggests that the city use the spirometry
and stress tests to determine which firefighters may be unfit for the job,
then require those firefighters to undergo a physical examination and "a
battery of

8
Because the city is measuring fitness directly, this case is
distinguishable from Dothard, where the job (prison guard) required
a degree of strength but the defendants did not show any
correlation between the requirements (minimum height and weight)
and the strength required for the job. See Dothard, 433 U.S. at
331.

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tests" to determine whether they are actually fit for duty. Appellant's
Br. at 24.

We have not previously had the occasion to determine whether this
branch of the Title VII disparate impact doctrine applies to the ADEA. For
purposes of this appeal, however, we assume that the Title VII framework
applies: once the defendant has met its burden of demonstrating business
necessity, the plaintiff may still prevail by showing "that other selection
devices without a similar discriminatory effect would also serve the
employer's legitimate interest in efficient and trustworthy workmanship."
Dothard, 433 U.S. at 329 (quotations omitted). For several reasons,
Smith's argument on this point is unavailing.

First, it does not appear from the record that Smith advanced this
argument before the District Court. We will not reverse a grant of summary
judgment on the basis of an argument not presented below. See, e.g.,
O.R.S. Distilling Co. v. Brown-Forman Corp., 972 F.2d 924, 926 (8th Cir.
1992). Even if the argument were proper, however, Smith has not made any
showing that his proposed alternative (which is in any case rather vague)
would have less of a disparate impact on older firefighters than the city's
present system does. At most, Smith has asserted that he would be able to
pass his proposed battery of tests, but he has not shown the effect of his
system on other firefighters. Nor has he shown that his more subjective
approach would serve the city's legitimate interest in the fitness of its
firefighters as well as the current system. Smith has failed to raise a
genuine issue of material fact on this branch of the disparate impact
doctrine.

III.

Finally, we consider the District Court's grant of summary judgment
in favor of the city on Smith's ADA claim.

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 The ADA prohibits employers from discriminating 'against a
qualified individual with a disability because of the
disability of such individual.' 42 U.S.C. § 12112(a). A
plaintiff seeking relief under the ADA must establish that he
is a disabled person within the meaning of the ADA, that he is
qualified to perform the essential functions of his job either
with or without reasonable accommodation, and that he was
terminated because of his disability.

Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th Cir. 1995). The ADA
defines "disability" with respect to an individual as follows:

(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) (1994). Because the fire department filed for
disability retirement on his behalf, Smith claims that the city regards him
as having a disability. The parties agree that Smith is not in fact
disabled. Amend. Compl. ¶ 26; Answer ¶ 20.

We rejected a claim similar to Smith's in Wooten. In that case, we
recognized that "working" is a "major life activity" that, if substantially
limited by an impairment, brings an individual within the protection of the
ADA. Wooten, 58 F.3d at 385-86. We also held, however, that "'working'
does not mean working at a particular job of that person's choice" and
recognized that "[a]n impairment that disqualifies a person from only a
narrow range of jobs is not considered a substantially limiting one." Id.
at 386 (quotation omitted); see also 29 C.F.R. § 1630.2(j)(3)(i) (1996)
("The inability to perform a single, particular job does not constitute a
substantial limitation in the major life activity of working."). We then
applied these principles to a "regarded as" situation in which Wooten
claimed that his former employer regarded

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him as having a disability, and we affirmed a grant of summary judgment for
the employer. Wooten, 58 F.3d at 386.

Smith's claim fails for the same reasons that Wooten's did. Viewing
the record in the light most favorable to Smith, we see that the city
regarded Smith as unable to perform the duties of a firefighter. But Smith
does not suggest that the city believed he was unable to perform other
jobs, and he has presented no evidence to support that proposition. In
fact, in a letter to Smith in December 1993, the fire chief recognized that
Smith had gone back to school and had taken another job while he was on
sick leave from the fire department. J.A. at 267. Smith failed to create
a genuine issue of fact as to whether the city regarded him as having a
disability for purposes of the ADA, and the District Court properly granted
summary judgment on this claim.

IV.

The judgment of the District Court is affirmed.

HEANEY, Circuit Judge, concurring in part and dissenting in part.

I concur in parts I, IIA, and III of the majority's opinion. I
respectfully dissent, however, from the majority's conclusion in parts IIB
and IIC that the city was entitled to summary judgment on Smith's age
discrimination claim. I certainly agree that a high level of physical
fitness is related to the job of a firefighter and that the city must
develop a policy that ensures safe and efficient job performance. In my
view, however, the city has not adequately demonstrated that its fitness
standard has a manifest relationship to the duties of a fire captain. Nor
has the city produced sufficient evidence to support a finding that its
policy of dismissing all employees who fail to meet the standard is
necessary for their safe and efficient job performance. Moreover, contrary
to the majority's position, the opinions of four

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physicians who independently examined Smith and determined that he was fit
to perform his firefighting duties, directly rebut the necessity of the
city's policy. At a minimum, therefore, I do not agree that summary
judgment was appropriate for Smith's age discrimination claim and would
remand to the district court for a full trial on the merits.

To prevail in its business necessity defense, the city must validate
its fitness test for job-relatedness to the particular skills and
exertional requirements of a fire captain, the position at issue in this
case. See Albermarle Paper Co. v. Moody, 422 U.S. 405, 431, 45 L.Ed. 2d
280, 304 (1975). As the ANSI report recommends, for a proper fitness
evaluation, an examiner must consider meaningful work-related information,
including the type of activity to be performed, the level and duration of
effort required. (J.A. at 336.)

To justify its fitness standard, the city relies solely on Dr. Zorn's
conclusion based on his review of a report of a study in which he did not
participate. The study tested the ability of a sample group of
firefighters to complete a series of tasks that were "designed to simulate
the duration, intensity, and types of tasks that are performed during
firefighting." (J.A. at 215.) As the majority states, a fire captain is
frequently involved in fire suppression activities when a company arrives
at a fire scene. Yet, as both Chief Phillips and Chief Morgan testified,
a fire captain spends much less time in the structure fighting the fire
than firefighters and the captain's main role is directing, not
participating in, the fire suppression. (J.A. at 151, 170.) Dr. Zorn
acknowledged that it would be "reasonable" to adjust the fitness
requirements for different positions, depending on the amount of time each
position spends suppressing the fire. He left those decisions to the fire
department. (J.A. at 130.) The city has made no attempt to link its
fitness standard specifically to

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the job requirements of a fire captain. Thus, the standard cannot be
justified as a business necessity.

Even if a fitness standard for firefighters could justify the
dismissal of a fire captain, there is conflicting evidence in the record
as to whether the test used and the specific fitness level set by the city
are reasonable. After reviewing the study and discussing its findings with
Dr. Zorn, Dr. Schwartz wrote to the fire department: "Dr. Moseley and I
do not believe that this study justifies identifying Mr. Smith as unable
to fulfill the duties of a firefighter." (J.A. at 361.) Dr. Schwartz
testified that the VO2 minimums set by the city are unreasonable and that,
in his opinion, the city should not rely on a single test for its fitness
evaluation. (J.A. at 179-80.) With this conflicting evidence as to the
validation of the standard, Smith's claim should have survived summary
judgment.

In addition to the insufficient evidence of a "manifest relationship"
between the fitness standard and Smith's job requirements, the city has not
demonstrated the necessity of its policy requiring dismissal of all those
who fail the fitness test. The city argues that its policy is necessary
because federal regulations and ANSI recommendations require fire
departments to ensure the safety of its employees. Neither authority
requires as strict a policy as the city has adopted for its firefighters,
however. Moreover, the study on which the city relies for its standard
does not recommend that employees failing to meet the standards be fired.
Rather, the study suggests that employees who cannot meet the standards be
given a specialized exercise regime to improve their levels of
cardiopulmonary fitness. As the authors of the study recognize,

policies that select and/or retain on the basis of fitness but
are not accompanied by programs emphasizing fitness may be
vulnerable to legal challenge. Initiating

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 entry expectations at a level allowing for a reasonable decline
with advancing age is one step but this should be accompanied
by weight control, exercise, and smoking cessation programs
with periodic individualized assessment.

(J.A. at 221.)

In a letter to Dr. Zorn, Sothmann recommends:

a proactive approach where individuals below the expectation
are given time to improve through an established policy
negotiated by concerned parties (e.g. administration, union,
medical, human rights). An unwillingness to adhere or failure
to achieve the expectation should be treated on a case by case
basis with additional information to decide employment
implications.

(J.A. at 256.) The city did not implement these recommendations. Where
a fitness test so disparately affects persons protected by the ADEA, the
city should at least attempt to minimize the effect by giving its employees
an opportunity to improve their physical condition.

To further rebut the necessity of the city's fitness standard, Smith
has presented substantial evidence that, despite failing the city's test,
he was fit to perform firefighting duties. Dr. Glazier, who examined Smith
to provide a second opinion, stated that based on spirometric findings,
"[Smith] is capable of performing exertional tasks while wearing SCBA."
(J.A. at 364.) The three doctors who evaluated Smith for his disability
pension status thoroughly examined him. Each concluded separately not only
that Smith was not disabled but also that he was fit to return to work as
a firefighter. As the EEOC asserted in its amicus brief, the opinions of
the four doctors that Smith's cardiopulmonary capacity would not prevent
him from performing the duties of his job safely and efficiently is
sufficient to create a triable issue of fact as to whether the city's
standard is justified by business necessity.

The majority characterizes the dispute in this case as how fitness
can be "most appropriately measured." Rather, the real dispute is whether
the city's policy, which has a disparate impact on persons protected by the
ADEA, has a manifest relationship to the job of a fire captain and whether

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it is necessary for the safe and efficient performance of the captain's
job. In my view, plaintiff presents sufficient evidence to counter both
elements of the business necessity defense. Thus, Smith's age
discrimination claim should have survived summary judgment.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

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