Equal Employment Opportunity Commission v. Amego, Inc.

United States Court of Appeals

For the First Circuit

No. 96-1837

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff, Appellant,

v.

AMEGO, 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

Cyr and Lynch, Circuit Judges,

and McAuliffe,* District Judge.

Karen M. Moran, Attorney, Equal Employment Opportunity

Commission, with whom C. Gregory Stewart, General Counsel, Gwendolyn

Young Reams, Associate General Counsel, and Vincent J. Blackwood,

Assistant General Counsel, were on brief, for appellant.
Mary Jo Hollender, with whom Hollender & Carey, L.L.P., was on

brief, for appellee.

April 7, 1997

*Of the District of New Hampshire, sitting by designation.

LYNCH, Circuit Judge. Amego, Inc., is a small not-
LYNCH, Circuit Judge.

for-profit organization which cares for severely disabled

people suffering from autism, retardation, and behavioral

disorders. It serves twenty-five to thirty clients,

including six in a residential program in Mansfield,

Massachusetts, where Ann Marie Guglielmi was employed as a

Team Leader. The Team Leader position required her to be

responsible for the care of these disabled clients, including

the responsibility of administering vital medications to

them. After an unresolved investigation of improprieties in

the administering of medication to patients at a related

facility, Amego learned that other staff felt Guglielmi was

not performing her job adequately and was putting patients at

risk. Amego also learned that Ms. Guglielmi had twice

attempted to commit suicide within the previous six weeks by

overdosing on medications. This, Amego decided, meant that

Guglielmi could not safely dispense medications, an essential

job function, and that there was no other job reasonably

available to her. Her employment was thus terminated.

The Equal Employment Opportunity Commission

("EEOC") sued Amego on behalf of Guglielmi under the

Americans with Disabilities Act ("ADA"), 42 U.S.C. 12101 et

seq. The district court entered summary judgment against the

EEOC, holding that the EEOC had not made out a prima facie

case that Guglielmi was an otherwise "qualified" individual,

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that an accommodation could be reasonably made, and that

there was discrimination "because of" her disability.

The EEOC appeals and argues that the question of

whether an employee poses a significant risk to other

individuals in the workplace is an affirmative defense on

which the employer bears the burden of proof and is thus not

part of the plaintiff's burden that the employee is

qualified. Those issues of qualification and risk, the EEOC

says, are matters for the jury to resolve at trial and may

not be resolved on summary judgment. The EEOC also invites

this court to hold that "adverse employment action taken

because of conduct related to a disability is tantamount to

action taken because of a disability itself" for purposes of

the ADA.

We affirm the judgment of the district court.

I.

The following facts are undisputed.

Founded in 1972 by parents of autistic individuals,

Amego receives public funding and is licensed by two state

agencies. A condition of licensing is that Amego provide

conditions that ensure the safety and well-being of its

clients. Amego maintains a very low client-to-staff ratio,

usually one staff member to two clients. One particularly

aggressive client required supervision by three staff

members, eighteen hours a day.

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Amego has a policy of not rejecting those who seek

its help. Most of its clients engage in aggressive and self-

injuring behavior, including self-mutilation. Many have been

rejected by, or discharged from, other agencies. Most

clients are on prescription medications, and in June of 1992,

all clients at the Mansfield residence, save one, were

receiving prescription medications.

Consistent with its philosophy of attempted

integration, Amego provides its clients with access to

community activities on a regular basis. Residential clients

are transported daily to the Day Treatment Program, where

they frequently are taken by direct care staff to stores,

bowling alleys, banks, and the like.

In September 1990, Amego hired Guglielmi as a

Behavior Therapist. She was then about 21 years old and did

not represent herself to have any disability. In January

1991, she was diagnosed as bulimic and clinically depressed;

however, she did not tell her employer about these conditions

until after her first suicide attempt, over a year after the

diagnosis. She was prescribed Prozac in 1991, but it only

partially alleviated the depression. She stopped taking the

drug in April. In the fall of 1991, she started living with

her boyfriend, David Andrade, who worked at a different Amego

residence. That relationship was fraught with problems.

Andrade used cocaine; Guglielmi, however, says she did not

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confirm her suspicions of that until late June 1992. In

early 1992, she started seeing a social worker, Margaret

Posever, for bimonthly therapy sessions.

Earlier, in July 1991, Guglielmi was promoted to

the position of Team Leader at the Mansfield residence. The

essential functions of that position included: supervising

the day-to-day implementation of individual clinical,

educational, and vocational programs and data collection for

all programs; serving as a role model for staff in all areas

of client programming, client services, and professional

practice; assessing staff performance, providing additional

training, support, and counseling as appropriate; ensuring

that Amego's policies and procedures on clients' rights were

implemented and documented; responding appropriately in

crisis situations; and administering and documenting the use

of prescribed medications.

On March 4, 1992, Guglielmi received a performance

evaluation which said she was an "exceptional" Team Leader.

The evaluation was based on her performance through January

1992. In the spring of 1992, Guglielmi applied for promotion

to the position of Program Coordinator for the Mansfield

residence. The promotion instead went to Kristen Stone.

Stone assumed her new responsibilities on May 4, 1992.

That same day, Guglielmi deliberately took an

overdose of nonprescription sleeping pills which she had

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purchased for that purpose. After taking the pills, she told

Andrade what she had done; he took her to the emergency room.

She was transferred to a psychiatric hospital and released

later that evening. She told health care workers that she

attempted suicide because she was upset by problems in her

relationship with her boyfriend, her failure to receive the

promotion, and other work-related stress. She was readmitted

to the psychiatric hospital on May 6, 1992, and stayed there

until May 12 because of concerns about her safety. On the

day of her readmission to the hospital -- two days after her

suicide attempt -- Guglielmi was not able to "contract for

safety" with her therapist Posever. Guglielmi told Posever

that even if she were to so contract, her mood was in such

flux that she could not be sure she would not hurt herself

anyway. A week after returning to work, and again two weeks

later, she told Posever that she felt suicidal.

When Guglielmi returned to work on May 13, she told

her supervisor only that she had been hospitalized for

bulimia and depression. She did not say that she had

attempted suicide. She asked her supervisor to modify her

work schedule so that she could attend therapy twice or

thrice weekly. Her supervisor agreed to this accommodation.

However, Guglielmi stopped going to the therapy sessions

after a few weeks.

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On May 21, 1992, Guglielmi began seeing Dr. Kenneth

Levin for psychopharmacological treatment. He diagnosed her

as suffering from bulimia and major depression, prescribed

Prozac and trazodone, and saw her to monitor her use of

medication. Prozac was one of the medications regularly

administered to Amego's clients. On June 4, 1992, she told

Dr. Levin that she had experienced periodic feelings of

increased depression, including a period when she

contemplated overdosing. She assured Dr. Levin that if such

thoughts recurred, she would not act on them but would inform

her boyfriend or a health care provider. She did not keep

her word.

On June 13, Guglielmi deliberately overdosed again,

this time using her prescription medications, Prozac and

trazadone, as well as aspirin. After taking the overdose,

she called the Plainville police, who took her to the

hospital. She was released on June 15, 1992. She told her

health care providers that she was not really depressed when

she overdosed but wanted to provoke a reaction from her

boyfriend. When Guglielmi returned to work on June 17, she

again did not tell her employer that she had attempted

suicide.

On the day Guglielmi returned to work, the

Executive Director of Amego, Caryn Driscoll, and the Director

of Administrative Services, Karen Seal, met with David

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Andrade about his job performance problems. During this

meeting, Andrade mentioned rumors that clients were being

drugged at the Fales Road residence. He worked at that

location regularly, and Guglielmi worked there occasionally.

Around that time, Driscoll learned that Klonopin, one of the

medications prescribed for clients, was either missing or was

being used at an accelerated rate at the Fales Road

residence. Some cocaine users take Klonopin as an antidote,

to calm them down from the effects of cocaine.

Amego investigated and found that four of the

clients at the Fales Road residence (two of whom should not

have had Klonopin at all) had blood levels of Klonopin which

were too high. Amego asked any employees who had pertinent

information to step forward. Guglielmi did so and was

interviewed on June 26 by Driscoll, Amego's Human Rights

Officer, and a private investigator. During the interview,

Guglielmi focused on her relationship with Andrade, who she

feared might be targeted in the investigation. She said that

she was suffering from bulimia and depression and revealed

for the first time her two recent suicide attempts. In an

attempt to explain Andrade's performance issues, she said

that he had helped her when she attempted suicide two times

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by overdosing on both prescription and over-the-counter

drugs.1

Earlier, on June 5, a shift supervisor at the

Mansfield residence, Chester Millet, had noticed that the

medication log was missing. He conducted a thorough search,

including behind the medication cabinet, and did not find it.

Guglielmi also helped look for it. On the same day of her

interview with Driscoll, June 26, Guglielmi reported that she

had found the missing medication log. She said the log had

been behind the medication cabinet, between the cabinet and

the wall. Millet told Driscoll that he had previously looked

there and had not seen it. Although Driscoll did not

initially consider Guglielmi under suspicion for the improper

drugging of patients at Fales Road, she and other staff

members found the discovery of the book by Guglielmi to be

peculiar. A review of the medication log showed that the

supply of drugs on hand at the Mansfield residence was

excessive. It was not possible to determine from the log

whether medications were missing.

On June 26, Driscoll spoke with the Plainville

police about her concerns about the drugging of patients at

1. During the interview, Guglielmi was asked whether she had
observed or suspected that Andrade was using cocaine. She
answered "no" to both questions. The latter answer was not
true. Discovery in this case revealed that she had spoken to
her therapist about her suspicions of her boyfriend's cocaine
use as early as May 27, 1992.

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Fales Road. The police told Driscoll that they found pills,

initially thought to be Klonopin, in Guglielmi's apartment on

the night they responded to her suicide call.

Around June 28, Driscoll received a call from

Carlos Andrade, an Amego employee and David Andrade's

brother. He told her that staff members felt Guglielmi's job

performance was suffering and had asked him to do something

about it. He reported that staff members were uncomfortable

with her job performance, that she was erratic in behavior,

had mood swings, seemed to be focussed on her personal

problems, that she was seen walking outside and crying, that

she was heard fighting on the phone with David Andrade, and

that she was self-absorbed and unable to concentrate on her

job.

Carlos Andrade also passed on that Millet, the

shift supervisor and one of the most senior staff members at

the Mansfield residence, was concerned that Guglielmi had

suddenly handed him the drug log, saying that she had found

it in the residence when he had searched everywhere for it.

Driscoll confirmed Carlos Andrade's report with Millet, who

had never before complained about another employee. Carlos

Andrade felt that Guglielmi was not performing her job safely

and was putting clients at risk. Driscoll knew there was no

way to prevent Guglielmi from having access to medication

while she worked at Amego.

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A few days later, on July 1, Driscoll informed

Guglielmi in writing that she was temporarily removed from

her position as Team Leader and would be reassigned to

perform clerical and other light duties. The letter stated

that the fact that Guglielmi's recent hospitalizations were

the result of deliberate overdoses of prescription

medications raised "concerns about [her] ability to perform

[her] present job functions including medication ordering,

dispensing and shift supervision." The letter also indicated

that Amego's Safety Committee would meet to determine whether

Guglielmi could perform her job, or another available job,

with or without accommodations. Driscoll said that the

Committee should seek medical information from Guglielmi's

treating physician.

In an attempt to obtain a professional opinion on

Guglielmi's ability to resume her duties, Driscoll sent a

letter to Posever on July 1 asking whether Guglielmi could

perform eleven duties that a Team Leader would need to

perform, set forth on a checklist. The letter came back to

Amego on July 8 with a check in the "yes" column for each job

duty. Only Guglielmi had signed the bottom of the checklist.

Driscoll called Posever to ask if the checklist

accurately reflected Posever's opinion that Guglielmi could

complete the duties or whether the list merely reflected

Guglielmi's own opinion. Posever told Driscoll she was not a

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medical doctor, that the checklist did not represent a

medical competency evaluation as to each specific job duty,

nor was it a guarantee regarding each duty. It was rather

that, based on her discussions with Guglielmi and her

knowledge of her work and treatment history, Posever had no

reason to think Guglielmi could not perform those duties.

Posever's checking "yes" was based on her observations of

Guglielmi's demeanor and on Guglielmi's statement that she

felt comfortable giving out psychotropic medications at work,

even in light of her suicide attempts. Driscoll appeared

dissatisfied with the response and pressed for a more

definitive opinion, which Posever declined to give. Later,

Driscoll told Guglielmi that Posever's response was

inadequate.

On July 22, Driscoll sent Dr. Levin a letter

requesting his opinion as to whether Guglielmi could perform

the eleven functions of her job and enclosing the checklist.

In a letter dated July 27, 1992, Dr. Levin wrote that

Guglielmi was no longer on prescription medication. He

concluded: "My understanding is that she has consistently

performed her regular job responsibilities conscientiously

and I see no difficulty with her returning to her regular

position." There was no checklist with the letter Amego

received. Driscoll viewed Dr. Levin's conclusions as

largely being based on what Guglielmi said she could do and

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her representation that she had no performance problems. But

Driscoll knew from staff complaints that Guglielmi had a

range of performance problems. And Driscoll knew Dr. Levin

had not checked with anyone at Amego about whether Guglielmi

was in fact performing well. Driscoll told Guglielmi that

Dr. Levin's letter did not adequately deal with the job

functions issue.

Driscoll was also concerned that the parents of

Amego's charges would feel that their children would be put

at risk by being in the care of someone who abused

prescription drugs. The parents, she felt, would contact one

of the state agencies which licensed Amego.

On July 21, the Safety Committee met. The

Committee was comprised of four administrators: Seal, the

Director of Administrative Services; Amego's Health

Coordinator, who was a nurse; the Staff Development

Coordinator; and the Administrative Assistant/Workers'

Compensation Coordinator. The Committee found that Guglielmi

was not in fact performing her job duties conscientiously or

performing them well. The Committee concluded that Guglielmi

could not safely perform the Team Leader position and that

there was no Amego position that could be modified to

accommodate her.

On July 27, 1992, Amego's Board of Directors was

informed of the recommendation of the Safety Committee and,

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after additional discussion, concluded that there was no

alternative position that could accommodate Guglielmi. The

following day Driscoll informed Guglielmi that her employment

was terminated. Amego says its core concern was that

Guglielmi could not meet the essential job function of

handling prescription medication.

II.

The district court entered summary judgment for

Amego, finding that the EEOC had failed to meet its burden

under the ADA of showing that Guglielmi was qualified for the

position of Team Leader and that Amego could have made a

reasonable accommodation. The district court also found that

the EEOC had failed to meet its burden of showing that Amego

had discriminated against Guglielmi "because of" a

disability.

The scope of appellate review of entry of summary

judgment in ADA cases, as in all others, is de novo. Soileau

v. Guilford, 105 F.3d 12, 14 (1st Cir. 1997). The EEOC bore

the burden of showing that Guglielmi was qualified to

perform, either with or without reasonable accommodation, the

essential functions of her job. See Jacques v. Clean-Up

Group, Inc., 96 F.3d 506, 511 (1st Cir. 1996).2

2. To establish a claim under the ADA, a plaintiff must
prove by a preponderance of the evidence: (1) that she was
disabled within the meaning of the ADA; (2) that, with or
without reasonable accommodation, she was able to perform the
essential functions of her job (in other words, that she was

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For summary judgment purposes, the parties do not

dispute that Guglielmi was a disabled person within the

meaning of the ADA. It is also undisputed that an essential

function of the Team Leader position is to administer and

monitor the medication of Amego's clients. The written job

description provides that this is an essential job function,

and the EEOC concedes that Team Leaders have access to locked

medicine cabinets containing large quantities of drugs and

are expected to administer medications to clients.

This case initially turns on whether the EEOC has

met its burden of showing that Guglielmi was a "qualified"

person. Amego's position is that it terminated Guglielmi's

employment because she showed by her conduct -- by behavior

leading co-workers to have concerns about whether she was a

risk to clients and by her two attempts to commit suicide

using prescription and non-prescription drugs -- that she

could not reasonably be trusted to meet her responsibilities

as to medications. Although the qualification analysis could

be understood to subsume the concept of reasonable

accommodation, we think it analytically sounder to treat the

"qualified"); and (3) that the employer discharged her in
whole or in part because of her disability. See Jacques, 96

F.3d at 511; Katz v. City Metal Co., Inc., 87 F.3d 26, 30

(1st Cir. 1996); see also 42 U.S.C. 12112(a). The district

court used the largely similar formula under McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), for establishing

a prima facie case of discrimination. Either formula is
appropriate here. See Katz, 87 F.3d at 30.

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two topics separately. Cf. Southeastern Community College v.

Davis, 442 U.S. 397, 406 (1979)("An otherwise qualified

person [under the Rehabilitation Act] is one who is able to

meet all of a program's requirements in spite of his

handicap.").3

Qualification/Direct Threat Under Title I of the ADA

To understand the EEOC's burden of proof argument,

it is necessary to understand the ADA statutory scheme. At

its core, Title I of the ADA is about protecting the disabled

from discriminatory employment action based on stereotypes

and fear. See H.R. Rep. No. 101-485, pt. 3, at 45 (1990),

reprinted in 1990 U.S.C.C.A.N. 445, 468; see also Jacques, 96

F.3d at 511. The prima facie case establishes that because

an individual with a disability is qualified, yet has

suffered adverse employment action because of that

disability, the employer may have engaged in the type of

discrimination the ADA is designed to prevent. Here, the

plaintiff has failed to establish a prima facie case: there

is no evidence suggesting the presence of any disability-

based discrimination.

The general rule of the ADA is that an employer

shall not "discriminate against a qualified individual with a

disability because of the disability . . . ." 42 U.S.C.

3. As explained below, caselaw interpreting the
Rehabilitation Act of 1973 is applicable to the ADA. See 29

U.S.C. 794(d).

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12112(a). It is generally accepted that, in a Title I case,

the plaintiff bears the burden of showing she is a

"qualified" individual. See Jacques, 96 F.3d at 511.

A qualified individual is one who can perform the

essential functions of the job held. See 29 C.F.R.

1630.2(m). The statute also says that "the term

'qualification standards' may include a requirement that an

individual shall not pose a direct threat to the health or

safety of other individuals in the workplace." 42 U.S.C.

12113(b). It defines "direct threat" as meaning "a

significant risk to the health or safety of others that

cannot be eliminated by reasonable accommodation." 42 U.S.C.

12111(3). The rub is that the language about

"qualification standards" under Title I appears in a section

of the statute entitled "Defenses." 42 U.S.C. 12113(a)

("It may be a defense to a charge of discrimination under

[the ADA] that an alleged application of qualification

standards . . . has been shown to be job-related.") The EEOC

argues that the employer bears the burden of proof on this

affirmative defense.

The EEOC argues further that whenever an issue of

threats to the safety or health of others is involved in a

Title I case, it must be analyzed under the "direct threat"

provision of 12113(b) as an affirmative defense.

Specifically, the EEOC contends that the 12113(b) provision

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that qualification standards may include a requirement that

an individual not be a direct threat is to be read in the

context of the defense set out in 12113(a). The EEOC

supports its position by noting that 12113 is captioned

"Defenses."4 Thus, the EEOC says, the district court erred

in considering the matter of whether Guglielmi posed a threat

to the safety of Amego's clients as a matter of

"qualification," on which plaintiff bears the burden. Amego

contends that the risks posed to others may be considered as

part of the qualified individual analysis, and that the

specific discussion of a direct threat defense in 12113

4. The confusion on this point is reflected in the
legislative history. During congressional hearings,
Representative Dannemeyer asked a witness, who had
contributed to the drafting of the ADA, who had the burden of
proof on the direct threat issue in the communicable disease
context. Comm. on Educ. and Labor, U.S. House of
Representatives, 101 Cong., 1st Sess., The Americans with

Disabilities Act 1896 (Comm. Print 1990). The witness

replied that the plaintiff, as part of his prima facie case,
would have to put on evidence that his communicable disease
would not pose a direct threat to others. Id.

There is also caselaw establishing that even under a
"direct threat" analysis, the "employee retains at all times
the burden of persuading the jury either that he was not a
direct threat or that reasonable accommodations were
available." Moses v. American Nonwovens, Inc., 97 F.3d 446,

447 (11th Cir. 1996)(per curiam)(citing Benson v. Northwest

Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir. 1995)), cert.

denied, 117 S. Ct. 964 (1997). In affirming summary judgment

for the employer in an ADA action brought by an epileptic
product inspector who worked near exposed machinery, the
Moses court noted that to defeat summary judgment, the

nonmoving party must raise "significant probative evidence"
that is "sufficient" for the jury "to return a verdict for
that party." Id. at 447 (citing Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249 (1986)).

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does not preclude the consideration of safety risks in other

prongs of the ADA analysis.

Because the statutory scheme does not clearly

resolve this debate, we look to the legislative history to

determine whether risks posed to others may only be

considered in the direct threat defense context. See United

States v. Charter Int'l Oil Co., 83 F.3d 510, 517 (1st Cir.

1996). Upon such review, we discern no congressional intent

to preclude the consideration of essential job functions that

implicate the safety of others as part of the

"qualifications" analysis, particularly where the essential

functions of a job involve the care of others unable to care

for themselves. The House Report5 said that, in the

definition of "direct threat," "[t]he Committee intends to

codify the direct threat standard used by the Supreme Court

in School Board of Nassau County v. Arline." H.R. Rep. No.

101-485, pt. 3, at 34 (1990), 1990 U.S.C.C.A.N. at 457. The

House Report goes on to say that, "[i]f the applicant is

otherwise qualified for the job, he or she cannot be

disqualified on the basis of a physical or mental condition

5. The report was concerned about exclusion of individuals
based on fears or stereotypes, rather than on "objective"
evidence about the individual involved. Thus, in the case of
a person with mental illness there must be objective evidence
from the person's behavior that the person has a recent
history of committing overt acts or making threats which
cause harm or which directly threatened harm. H.R. Rep. 101-
485, pt. 3, at 45-46, 1990 U.S.C.C.A.N. at 468-69.

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unless the employer can demonstrate that the applicant's

disability poses a direct threat to others in the workplace.

. . . The plaintiff is not required to prove that he or she

poses no risk." Id. at 46, 1990 U.S.C.C.A.N. at 469. The

intent to codify Arline suggests that the burden is on

plaintiff to show that he or she is qualified in the sense of

not posing a direct threat. Arline considered that issue to

be part of the "qualification" analysis under 504 as to

which plaintiff bears the burden.6 See Arline, 480 U.S. at

287-88.

The ADA also contains a directive that it be

enforced in a manner that is consistent with the requirements

of the Rehabilitation Act of 1973. 42 U.S.C. 12117(b).

Courts therefore use caselaw under 504 of the

Rehabilitation Act, 29 U.S.C. 794, for guidance in

interpreting the ADA. See 29 U.S.C. 794(d)("The standards

used to determine whether this section [ 504 of the

Rehabilitation Act] has been violated in a complaint alleging

employment discrimination under this section shall be the

standards applied under Title I of the [ADA]."); Katz v. City

Metal Co., Inc., 87 F.3d 26, 31 n.4 (1st Cir. 1996) (Section

504 of the Rehabilitation Act "is interpreted substantially

6. While the language of the "direct threat" provision is
not limited to instances where the threat comes from
communicable diseases, the provision originated in the
communicable disease context. See H.R. Rep. No. 101-485, pt.

2, at 76, 1990 U.S.C.C.A.N. at 358-59.

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identically to the ADA."). Under 504, it is clear that the

question of whether the employment of the plaintiff poses

risks to the health of others is analyzed as a matter of

whether the person is "otherwise qualified." Arline, 480

U.S. at 287; see also Abbott v. Bragdon, --- F.3d ---, ---,

1997 WL 85096, at *7 (1st Cir. March 5, 1997) ("A court's

goal in conducting a direct threat analysis under the ADA is

to achieve a reasonable balance, protecting service providers

. . . from enforced exposure to unacceptable health and

safety risks" while protecting the disabled from

discrimination.).

In Arline, the Court held that the issue of the

threat to others posed by an employee with a communicable

disease was properly analyzed as a question of whether the

employee was "otherwise qualified." Arline, 480 U.S. at 287.

The Court noted that a "person who poses a significant risk

of communicating an infectious disease to others in the

workplace will not be otherwise qualified for his or her job

if reasonable accommodation will not eliminate that risk."

Id. at 287 n.16. Arguably, in Arline, the question of

whether the plaintiff could perform the core functions of a

school teacher's job was separate from the question of

whether she nonetheless posed a risk because of her

communicable disease. Here, the questions are not separate:

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the issue of risk posed to others arises in the context of a

core function of the job.

The EEOC correctly points out that, unlike the

Rehabilitation Act, the ADA's definition of "qualified

individual" does not address risk posed to others. While it

is true that the implementing regulations under the

Rehabilitation Act define "qualified individual with

handicaps" specifically to include "without endangering the

health and safety of the individual or others," 29 C.F.R.

1614.203(6), Congress intended the ADA's definition of

"qualified individual with a disability" to be "comparable to

the definition used in regulations implementing section 501

and section 504 of the Rehabilitation Act of 1973." H.R.

Rep. 101-485, pt. 2, at 55, 1990 U.S.C.C.A.N. at 337.

The EEOC stakes out a position which is far too

broad. This is not a case where a person who can perform all

essential job functions nonetheless poses a risk to others.

The district court did not, we believe, commit error in

considering risk posed to others under the category of

"qualification," where the risk is expressly associated with

performance of an essential job function.

The precise issue here concerns the employer's

judgment that Guglielmi could not be trusted to handle the

medication-related functions of her job. In this case, a

failure to perform an essential function -- overseeing and

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administering medication -- would necessarily create a risk

to others. That a failure to perform a job function

correctly creates a risk to others does not preclude the

ability to perform that function from being a job

qualification. The position argued by the EEOC would lead to

the anomalous result that there is a lesser burden of proving

qualifications on a plaintiff where the job involves the care

of others, and necessarily entails risk to others, than when

the job does not. We do not believe Congress intended to

weaken the burden on plaintiffs to show they are qualified in

such circumstances.

In such cases, where the employee is responsible

for ensuring the safety of others entrusted to his or her

care, other courts, without discussion of the point the EEOC

raises, have simply considered the risk question to be part

of the "qualified" analysis. See, e.g., Doe v. University of

Maryland Med. Sys. Corp., 50 F.3d 1261, 1265 (4th Cir. 1995);

Altman v. New York City Health and Hosp. Corp., 903 F. Supp.

503, 509-10 (S.D.N.Y. 1995); Mauro v. Burgess Med. Ctr., 886

F. Supp. 1349, 1352-53 (W.D. Mich. 1995).

We hold that, in a Title I ADA case, it is the

plaintiff's burden to show that he or she can perform the

essential functions of the job, and is therefore "qualified."

Where those essential job functions necessarily implicate the

safety of others, plaintiff must demonstrate that she can

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perform those functions in a way that does not endanger

others. There may be other cases under Title I where the

issue of direct threat is not tied to the issue of essential

job functions but is purely a matter of defense, on which the

defendant would bear the burden. This case does not raise or

resolve issues of the role of "direct threat" provisions

under other parts of the ADA, such as the public

accommodation title. Cf. Abbott, 1997 WL 85096. For the

reasons which follow, we conclude plaintiff's burden was not

met.

Appropriateness of Summary Judgment

The EEOC argues that a jury question is presented,

in any event, as to whether the evidence showed Guglielmi was

qualified. This is not, we think, a close question.

We set the context. Guglielmi did not meet her

burden of demonstrating that she is qualified. There is in

this record no suggestion that the employer has applied its

standards differentially. The EEOC presents no evidence that

the employer has ever found a similarly situated employee to

be qualified to handle the essential medication function.

Instead, the EEOC attempts to derive from its disagreement

with Amego over whether Guglielmi is qualified an inference

that the employer's different assessment is based on

disability discrimination. However, where, as here, no

evidence of animus is present, courts may give reasonable

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deference to the employer's assessment of what the position

demands. See Doe v. New York Univ., 666 F.2d 761, 776 (2d

Cir. 1981)(finding that, in case involving mentally ill

applicant to medical school, "considerable judicial deference

must be paid to the evaluation made by the institution

itself, absent proof that its standards and its application

of them serve no purpose other than to deny an education to

handicapped persons"); cf. Southeastern Community College,

442 U.S. at 406 (supporting reasonable deference to the

decisions made by administrators of federally funded programs

so long as no evidence is presented of discriminatory intent

with regard to the handicapped person).

The requirement of showing "qualifications" has

substance, notwithstanding the frequent leapfrogging of that

analysis to get to the pretext issue under McDonnell

Douglas.7 In the context of academic tenure cases, this

court has been attentive to the need to balance the right of

a plaintiff to be free from discrimination against the

undesirable result of having the court sit as a "super-tenure

committee." See Villanueva v. Wellesley College, 930 F.2d

7. The ADA is interpreted in a manner similar to Title VII,
Soileau, 105 F.3d at 16, and courts have frequently invoked

the familiar burden-shifting analysis of McDonnell Douglas in

ADA cases. The qualification prong of the prima facie case
is frequently met by a showing that the employee satisfied
the prerequisites for the position and that she can perform
the essential functions of the position held or desired. See

42 U.S.C. 12111(8); 29 C.F.R. 1630.2(m).

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124, 129 (1st Cir. 1991). Thus, plaintiffs who have been

denied tenure must show that their qualifications are at

least comparable to those of a "middle group of tenure

candidates as to whom both a decision granting tenure and a

decision denying tenure could be justified as a reasonable

exercise of discretion by the tenure-decision making body."

Banerjee v. Board of Trustees, 648 F.2d 61, 63 (1st Cir.

1981). Aware of the fine balance of competing considerations

that preserve academic freedom, this court has noted that

"[i]n tenure cases, courts must take special care to preserve

the University's autonomy in making lawful tenure decisions."

Brown v. Trustees of Boston Univ., 891 F.2d 337, 346 (1st

Cir. 1989).

Similar care is required here. Where the plaintiff

has presented no evidence of discriminatory intent, animus,

or even pretext, we think there should be special sensitivity

to the danger of the court becoming a super-employment

committee. Unlike the academic institutions in the above-

cited cases, Amego is a small employer. Its history of

employment decisions is neither lengthy nor detailed, making

it difficult to assume, without help from plaintiff, that the

qualification standards it asserts for Guglielmi are

different from those required of other employees. Plaintiff

has failed to provide such help. It is in this context that

we review the facts. We are also mindful of the Arline

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factors for assessing whether an employee poses a significant

risk to others. Cf. Arline, 480 U.S. at 288.8

It was eminently reasonable for Amego to be

concerned about whether Guglielmi could meet her

responsibilities, and also reasonable for it to conclude that

the risk was too great to run. The employer's judgment here

about the risks of future behavior by an employee is based on

past behavior and reasonable indicia of future behavior.

First, the nature of the risk was such that it was

extremely difficult to guard against. The clients were

particularly vulnerable to abuse or neglect. The mechanisms

to insure that they were properly treated with regard to

their medications, other than having trustworthy staff, were

not obvious. Amego had just learned that, despite its normal

procedures, four patients at the Fales Road residence were

overly medicated and that it could not determine whether any

medications were missing. Testing the clients' blood to

determine whether they had received the correct dosage level,

or indeed the correct drugs, has to be considered an

extraordinary step, and not a safeguard which could routinely

8. In determining whether an individual poses significant
health and safety risk to others in the contagious disease
context, the Arline Court suggested the consideration of the

following factors: the nature of the risk; the duration of
the risk; the severity of the risk (potential of harm to
third parties), and the probabilities the disease will be
transmitted and will cause varying degrees of harm. Id. We

conduct our analysis of the safety risk Guglielmi poses to
Amego clients against this backdrop.

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be taken. Additionally, the severity of the risk, i.e., the

potential harm to third parties, Arline, 480 U.S. at 288, is

great. The potential outcomes of administering the wrong

medication to a client are obvious and extreme.

Second, there were performance issues which

enhanced the likelihood that the clients could be harmed

unless steps were taken. Amego received complaints, from

other staff members, that Guglielmi was unable to focus on

her job and was a risk to patients. The situation was

serious enough that staff members sent an emissary to

management, asking that something be done. The peculiarity

of Guglielmi finding the missing medication log at a place

which had been searched earlier would reasonably give Amego

pause. Amego had reason to fear that Guglielmi would take

medications from Amego. When the police came to her

apartment on the night of her second suicide attempt, they

found pills they believed to be Klonopin. Klonopin is taken

by cocaine users, and management suspected the man with whom

Guglielmi lived of being a cocaine user and of drugging Amego

clients.9

9. Amego did not learn until after it had decided to
terminate Guglielmi's employment that Guglielmi had lied to
them about whether she suspected Andrade of using cocaine.
Because it is unnecessary to the decision, we do not address
the issue of whether this after-acquired evidence could, in
the context of the ADA, be used for purposes other than as a
rationale for terminating her employment, e.g., to buttress

the employer's judgment that Guglielmi's untrustworthiness
affected her ability to perform an essential job function.

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Third, other measures had not eliminated the risk

of Guglielmi mishandling medication. Amego knew that,

despite counselling and medication, Guglielmi had attempted

suicide a second time using medication and that she would

have access to Prozac at work, one of the drugs used in this

second attempt. The EEOC says that Amego should have had

greater confidence in Guglielmi because she no longer had a

prescription for drugs after the second attempt. There is

cold comfort in that: this fact increased the likelihood that

Guglielmi would use the drugs available to her at work for a

third attempt. Amego also knew that despite its provision of

a work schedule accommodation, Guglielmi soon stopped going

to the therapy sessions she said she wanted to attend after

her first suicide attempt. Amego knew that by concealing her

suicide attempts Guglielmi had misled them about the nature

of her previous absences from work.

Fourth, when Amego sought reassurance from

Guglielmi's health care providers, the responses were not

confidence-building. Posever, the social worker, neither

responded to the substance of the request for information nor

Cf. Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir.

1985)(holding that, in Rehabilitation Act case, later-
discovered evidence as to plaintiff's actual medical
condition is admissible to rebut plaintiff's prima facie
showing of qualification). But cf. McKennon v. Nashville

Banner Publ'g Co., 115 S. Ct. 879, 885 (1995) (holding that,

in ADEA cases, after-acquired evidence may not be used to
justify discriminatory discharge, though it may be used to
limit plaintiff's recovery).

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signed her name to the checklist. After receiving the

checklist, Driscoll telephoned Posever. Posever explicitly

declined to give a psychiatric medical opinion. Dr. Levin,

the psychopharmacologist, gave a brief response which Amego

could reasonably understand to be unresponsive to its

concerns and to be based on Guglielmi's own assessment of her

ability to do the work.

We also credit the deliberative process through

which Amego made its decision.10 It sought additional input,

including that from Guglielmi's medical advisors, and

considered other information before reaching its decision.

This deliberative process undercuts any argument that the

employer based its decision as to qualifications on

stereotypes about disability. There can be no serious claim

that Amego, which had considerable experience dealing with

mentally handicapped persons and integrating them into the

community, acted on the basis of the stereotypes and fears

which Congress wished to counteract in the ADA. Also, Amego

had earlier made accommodations. It modified Guglielmi's

schedule so that she could receive treatment and was

supportive of her efforts to deal with her condition. See

Soileau, 105 F.3d at 17.

10. As the district court noted, the irony is that, if Amego
had acted with less deliberation, the employment action would
have been taken before the effective date of the ADA. The
ADA became effective a few days before Guglielmi's discharge.

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Amego also operated in a context which added weight

to the risks it thought Guglielmi posed. Amego is licensed

by two state agencies and is required to take steps to assure

the safety of its patients. If a single client had been

harmed from misuse of medication, then Amego stood the risk

of losing its licenses and its ability to care for any of its

clients.11

Under these circumstances, where no evidence of

differential treatment, discrimination, or stereotyping is

proffered, the employer's judgment is entitled to some

weight. The EEOC's "Interpretive Guidance" to its ADA

regulations notes that the inquiry into essential functions

is not intended to second-guess an employer's business

judgment regarding production standards, whether qualitative

or quantitative. EEOC, Interpretive Guidance on Title I of

11. In Arline, the Supreme Court noted that deference should

be given to the judgments of public health officials as to
the analysis of whether an individual is "qualified."
Arline, 480 U.S. at 288; cf. Abbott, 1997 WL 85096, at *9

(reasoning that deference of "prima facie force is due public
health officials"). No such direct evidence was presented
here. But it is noteworthy that Amego was subject to the
regulatory requirements of two public agencies. As a
condition of receipt of public funds, Amego must be licensed
to operate by the Massachusetts Department of Mental
Retardation and the Massachusetts Office for Children. One
of the requirements for licensure included ensuring the
safety and well-being of the clients entrusted to Amego's
care.

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the Americans with Disabilities Act, app. to 29 C.F.R. pt.

1630.12

In somewhat similar factual settings, other courts

have affirmed summary judgment on the issue of qualification.

In Doe v. University of Maryland Medical System Corp., 50

F.3d at 1261, the defendant medical center terminated the

employment of an HIV-positive doctor. The court affirmed

summary judgment on the grounds that the doctor was not an

"otherwise qualified" individual because he posed a

significant risk to patients that could not be eliminated

through reasonable accommodation. Id. at 1266. The court

rejected the doctor's argument that the risk of transmission

was so infinitesimal that it could not be considered

significant. Id. The employer had relied on recommendations

from the Center for Disease Control in analyzing whether the

doctor's job functions fit the definition of exposure-prone

procedures. Id. at 1264. The court expressed its reluctance

to substitute its judgment for that of the medical center.

Id. at 1266. In Bradley v. University of Texas M.D. Anderson

Cancer Center, 3 F.3d 922 (5th Cir. 1993), the Fifth Circuit

12. It is true that the Interpretive Guidance also states
that the determination whether someone is qualified "should
not be based on speculation that the employee may become
unable in the future." Id. This not such a case. Rather,

Amego based its determination on Guglielmi's capabilities "at
the time of the employment decision," as the Guidance
suggests is appropriate. Id.

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affirmed entry of summary judgment for the employer on a

Rehabilitation Act claim with similar facts.

Similarly, the Fourth Circuit in Martinson v.

Kinney Shoe Corp., 104 F.3d 683 (4th Cir. 1997), affirmed

summary judgment on the ground that an epileptic employee was

not qualified to perform an essential job function of his

salesperson's job at a retail store, which entailed

maintaining store security. See also Kohl v. Woodhaven

Learning Ctr., 865 F.2d 930 (8th Cir. 1988) (finding that a

Hepatitis - B carrier patient who displayed aggressive

behavior would pose an unreasonable risk of transmitting the

disease to other patients and staff); cf. Arline, 480 U.S. at

288.

Reasonable Accommodation

The EEOC argues that Amego was required to move

Guglielmi from the Team Leader position to a Behavior

Therapist position as a reasonable accommodation. If the

Behavior Therapist position required no responsibility with

respect to medication, there would be more force to the

EEOC's position. See Hurley-Bardige v. Brown, 900 F. Supp.

567, 570 (D. Mass. 1995)(finding that there is "no per se

rule against transfers as reasonable accommodations"). But

the position did entail that responsibility.

Although medication-related duties are not

specifically mentioned in the Behavior Therapist job

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description, the ability to handle, administer, and document

medication was inherently part of the Behavior Therapist's

function, as listed in Amego's job description, of

"implementing individual clinical and educational programs."

13

All Behavior Therapists receive training in the

administration of medications. Behavior Therapists accompany

clients on frequent off-site trips into the community and

must dispense medications to clients at appropriate times

without supervision. When no Shift Supervisors or Team

Leaders are present, the Behavior Therapists must dispense

medications at the residences. Behavior Therapists also

accept deliveries of client medications in Amego's

facilities. Keys to the medicine cabinet are easily

accessible to Behavior Therapists.

There is no material factual dispute; only the

legal implications of these facts are in true dispute.

Medication-related duties of the Behavior Therapist position

are essential, and not marginal, to the position. While the

amount of time a Behavior Therapist spends dispensing

13. Evidence of whether a particular function is essential
includes, but is not limited to, written job descriptions;
the employer's judgment as to which functions are essential;
the amount of time spent on the job performing the function;
the consequences of not requiring the plaintiff to perform
the function; and the work experience of those who are doing
or have done similar jobs. 29 C.F.R. 1630.2(n).

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medication is not great, the consequences of getting it wrong

are quite great indeed.

There was no accommodation that Amego could make to

the Behavior Therapist position that would not cause it undue

hardship. See 42 U.S.C. 12112(b)(5)(A), 12111(9).14 To

retain Guglielmi while eliminating all of Guglielmi's

medication-related duties, it would have been necessary to

hire another Behavior Therapist to be paired with her to

ensure that she would never be left alone with a client who

needed medication. Amego might also have needed an

additional supervisor to ensure that Guglielmi did not have

access to client medications. The expense of hiring these

additional staff would be too great for a small nonprofit

like Amego to be reasonably expected to bear.15 See Vande

14. In determining whether an accommodation would impose an
undue hardship under the ADA, the factors to be considered
include: the nature and cost of the accommodation; the
overall financial resources of the facility; the number of
persons employed at the facility; the effect on expenses and
resources, or the impact otherwise of such accommodation upon
the operation of the facility; the overall financial
resources of the covered entity; the overall size of the
business of a covered entity; the number, type, and location
of its facilities; and the type of operations of the covered
entity including the composition, structure, and functions of
the workforce of such entity; the geographic separateness,
administrative, or fiscal relationship of the facility in
question to the covered entity. 42 U.S.C. 12111(10)(B).

15. The cost of an additional Behavior Therapist, for
example, would be approximately $20,000 (base wages annually
with benefits). Given that Amego ended the fiscal years 1992
and 1993 with a deficit, this would require additional funds
which Amego does not have.

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Zande v. Wisconsin Dep't of Admin., 44 F.3d 538, 542 (7th

Cir. 1995)(holding that employer may prove undue hardship by

establishing that the costs of the proposed accommodation are

excessive in relation either to its benefits or to the

employer's financial health or survival).

Another possible option, rearranging Guglielmi's

assignment to clients so that she was never with a client who

required medication, would obviously be difficult since, at

the time of Guglielmi's employment, only one client at the

Mansfield residence did not take medication. Assigning

Guglielmi to that one client would disrupt Amego's crucial

one-staff-member-to-two-clients ratio,16 or result in the

need for an additional Behavior Therapist. Both options

would alter the basic operations of Amego and go beyond the

scope of a reasonable accommodation. See Reigel v. Kaiser

Found. Health Plan, 859 F. Supp. 963, 973 (E.D. N.C. 1994).

Deploying another Behavior Therapist to Guglielmi's

location and shift or changing Guglielmi's clients'

programming to ensure that they were on site, near other

staff members, whenever they needed to take medication would

have an equally disruptive effect on Amego's clients and

16. Altering these staff/client ratios would contravene
specific provisions that are included in Amego's funding
contracts and the clients' individualized educational or
service plans.

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36

staff as well as interfere with Amego's funding

requirements.17 See Ricks v. Xerox Corp., 877 F. Supp. 1468,

1477 (D. Kan. 1995)(holding that the ADA does not require an

employer to hire a full-time helper to assist a disabled

employee as a reasonable accommodation).

In sum, Amego cannot make a reasonable

accommodation. To do what the EEOC asks would be to alter the

very nature of the Behavior Therapist position. "Such

redefinition exceeds reasonable accommodation." Bradley, 3

F.3d at 925.

"Because Of" and the Conduct/Disability Distinction

The EEOC argues that it met its burden on causation

because, it says, the ADA prohibits adverse employment action

that is based on conduct related to a disability to the same

extent that it prohibits adverse employment action based on

the underlying disability itself. It says that Amego

terminated Guglielmi because of her suicide attempts and that

the termination was, therefore, "because of" her disability.

Even if Amego terminated Guglielmi for misusing medication,

rather than for attempting suicide, the EEOC says the

termination decision was still "because of" her disability.

17. Amego's philosophy of maximizing community access
opportunities is incorporated into its funding contracts and
into clients' individualized programs. Amego would have
violated those agreements if it were to diminish or
artificially restrict community access opportunities for
either Guglielmi's or another employee's clients.

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37

To the extent that the EEOC is arguing that conduct

connected to a disability always must be considered to be

action "because of" a disability, that is too broad a

formulation. While one may hypothesize certain conduct which

is in fact more closely compelled by the disability (e.g.

profanity from Tourette's Syndrome sufferers), this case does

not provide the occasion to explore what merit there might be

to a more refined formulation of the EEOC's position. The

syllogism which the EEOC presents -- Guglielmi was depressed,

therefore Guglielmi attempted suicide, therefore any response

to the attempted suicide is "because of" her disability --

breaks down. Apart from the evidence that staff believed she

was a threat to clients based on her at-work behavior alone,

Amego has been clear, for purposes of the summary judgment

motion, that it was the manner of the suicide attempts -- use

of medications, including prescription medications -- that

motivated its decision.18

There is simply no evidence that Guglielmi's

depression compelled her to overdose on medications, as

opposed to other methods of attempting suicide. At best,

EEOC's evidence was that individuals suffering from bulimia

and depression sometimes have suicidal thoughts or attempt

18. Amego, through its Safety Committee, determined that
Guglielmi could not safely perform any of the eleven
responsibilities of the Team Leader position but did not
raise this argument on summary judgment.

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suicide. In Taub v. Frank, 957 F.2d 8 (1st Cir. 1992), this

court held that a plaintiff could not show under the

Rehabilitation Act that he was discharged by reason of his

handicap, drug addiction, because his heroin addiction was

"simply too attenuated when extended to encompass an

addiction-related possession of heroin for distribution."

Id. at 11. Similarly, in Leary v. Dalton, another

Rehabilitation Act case, this court found that where the

discharge from employment was for absenteeism resulting from

incarceration for driving under the influence, the

plaintiff's disability of alcoholism was not the sole reason

for his termination. 58 F.3d 748, 752 (1st Cir. 1995).

The facts of this case do not present the

disability and conduct connection the EEOC suggests.

Accordingly, there was no error in the district court's

determination that the EEOC also has not met its burden of

showing the job action was "because of" Guglielmi's

disability.

The entry of summary judgment for Amego, Inc., is

affirmed.

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