Gillen v. Fallon Ambulance Service, Inc.

United States Court of Appeals
For the First Circuit

No. 01-1642

KELLY A. GILLEN,
Plaintiff, Appellant,

v.

FALLON AMBULANCE SERVICE, INC.,
Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]
[Hon. Lawrence P. Cohen, U.S. Magistrate Judge]

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Saris,* District Judge.

William J. McLeod, with whom McLeod & Associates was on
brief, for appellant.
Wilfred J. Benoit, Jr., with whom Wilfred J. Benoit, Jr.,
P.C., Heidi Goldstein Shepherd, and Goodwin Procter LLP were on
brief, for appellee.

March 19, 2002
____________
*Of the District of Massachusetts, sitting by designation.
 SELYA, Circuit Judge. Plaintiff-appellant Kelly A.

Gillen, a genetic amputee with only one completely functioning

arm, sued defendant-appellee Fallon Ambulance Service, Inc.

(FAS) for refusing to hire her as an emergency medical

technician (EMT). The court below granted summary judgment,

reasoning that the appellant did not have a disability within

the meaning of the relevant statutes, and that, in all events,

she could not have performed the essential functions of the job.

Gillen's appeal raises nuanced questions under the Americans

with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. After

pondering these questions, we vacate the judgment and remand for

further proceedings.

I. BACKGROUND

Consistent with the conventional summary judgment

praxis, we recount the facts in the light most hospitable to the

appellant's theory of the case, consistent with record support.

C.K. Smith & Co. v. Motiva Enters., 269 F.3d 70, 72 (1st Cir.

2001).

The appellant was born with a deformed left arm — the

limb ends a few inches below the elbow — but her courage and

perseverance are not open to question. Although she eschews the

use of a prosthesis, she performed impeccably in a myriad of

jobs (e.g., sales clerk in a department store, laboratory

-3-
assistant) during her high school and college years. Aspiring

to become a physician, she decided, as an interim step after

obtaining a bachelor's degree, to seek employment as an EMT.

This was easier said than done. The duties of an EMT

involve substantial physical prowess. An EMT usually works as

part of a two-person team. The team typically responds to a

call for assistance, assesses the patient's condition on the

scene, administers basic medical care, and then transports the

patient to an appropriate health care facility. The transport

is customarily effected by placing the patient on a stretcher or

stair chair, which then must be lifted and carried to an

ambulance, sometimes down several flights of stairs. The EMTs

then load the patient into the ambulance, drive to the health

care facility, and unload. Given the rigors of this work, it is

unsurprising that the Massachusetts Department of Public Health

(MDPH) requires that an EMT "[b]e free of any physical or mental

impairment or disease which could reasonably be expected to

impair [her abilities], or which could reasonably be expected to

jeopardize the health and safety of the patient." Mass. Regs.

Code tit. 105, § 170.910(A)(3).

Once she set her sights on obtaining employment as an

EMT, the appellant enrolled in a preparatory course. After

logging 110 hours of course work (including both academic and

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clinical components), she took and passed the state

certification examination — an examination composed of both

written and practical portions. Id. § 170.910(A)(5). She

received her certificate in the fall of 1997.

In search of work, the appellant contacted FAS on

December 7, 1997. She filled out an application form that

included questions about her physical condition and required her

to authorize the release of medical and workers' compensation

records.1 Tim Royer, an FAS hierarch, interviewed her a few

weeks later. She filled out more forms.

Paul Fallon, FAS's vice-president of operations,

conducted a second interview on January 2, 1998. He queried the

appellant about the origins of her deformity, expressed

skepticism about her ability to perform certain physical tasks

(especially lifting), and voiced concern about possible

liability should the appellant prove unable to hoist patients

properly. Despite these reservations, Fallon offered her

1
These materials were used by FAS, at the time, to screen
out prospective employees who might be susceptible to injury on
the job. FAS has now removed all questions about physical
deformities and workers' compensation from its standard
application form.

-5-
employment as an EMT, conditional upon passing a physical

examination administered by the Milton Hospital.2

Milton Hospital has had a longstanding relationship

with FAS, serving as the principal provider of employment-

related health care to FAS's work force. As part of this

relationship, the hospital, through its occupational health

clinic, was in the process of helping FAS establish a compendium

of the physical attributes required for doing EMT work. This

list, intended for use as a baseline by physicians who examined

candidates for vacant EMT positions, included the following

"essential job functions:"

C Lifting with two hands individually
up to 70 pounds for a total height of
6 inches from knuckle height
occasionally. Lifting with one hand
individually up to 20 pounds from a
height of 0 inches to 48 inches
frequently.

C With a partner lifting a stretcher
with a client on it weighing from 75
pounds to 300 pounds from a height of
6 inches to 40 inches occasionally.

In another part of this same document, the catalogue of "minimal

job requirements" included two-handed lifting of 70 pounds from

2 Fallon also offered the appellant the less taxing position
of chair car driver. The appellant declined, declaring that she
was interested only in an EMT position.

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0-4 times a day,3 a one-handed lift of 20 pounds 0-40 times a

day, and lifting (with a partner) 75-300 pounds 0-40 times a

day.

On January 8, 1998, the appellant repaired to Milton

Hospital for her medical examination. The examiner, Dr. Asif

Qazi, did not have the list of essential job functions with him

at the time, but he knew that the EMT position involved heavy

lifting and lifting in difficult positions. He worried that the

appellant might not be able to perform the lifting functions

effectively. He therefore decided that a further review of her

strength and ability to lift were in order before he could give

her a clean bill of health. In Dr. Qazi's view, the results of

this later testing would not only document the appellant's raw

strength but also shed light upon her lifting mechanics (e.g.,

her ability to keep a patient properly balanced aboard a

stretcher).4

Dr. Qazi informed the appellant of his conclusion, and

she immediately called an FAS official, Christine Hamilton, to

3
Fallon testified without contradiction that "0-4 times a
day" was an error, and that the requirement instead should read
"0-40 times a day."
4
The paperwork that Dr. Qazi completed roughly tracked this
conclusion. In his report, the physician placed a checkmark
next to "[n]o medical contraindication to performing this job,
with the following recommended accommodations or job training,"
and then added: "To be determined by strength test."

-7-
make arrangements for the strength test. Later that day,

however, Dr. Qazi discussed the situation with his immediate

superior, Dr. Thomas Winters. Dr. Winters, who had vast

expertise in both emergency medicine and occupational health

matters, served as the medical director of Milton Hospital's

occupational health clinic. After Dr. Qazi described the

appellant as a genetic amputee whose left arm was missing below

the elbow, Dr. Winters replied that, in his opinion, she could

not perform the essential functions of the EMT position (and,

thus, could not pass the preemployment examination).

Dr. Winters premised his opinion in part on a fear that

the appellant could not serve as an EMT without jeopardizing

patients and coworkers. He explained that, based on his

experience, one of the most important duties of an EMT was to

stabilize a patient after an accident, and, given the

appellant's impairment, she would be unable (even with a

partner) effectively to perform the difficult balancing required

when transporting patients from tight spaces or difficult-to-

reach sites. Moreover, Dr. Winters did not believe that the

appellant's grasping technique, as described to him by Dr. Qazi,

could work in lifting a stretcher (with a partner) when the

patient weighed over 150 pounds. Given these problems, Dr.

Winters considered further testing of the appellant's strength

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or lifting mechanics unnecessary and, with Dr. Qazi's

acquiescence, determined that the appellant had failed the

preemployment examination.

Dr. Winters called Fallon and informed him of this

determination. He also compiled a report. Like Dr. Qazi, see

supra note 4, he placed a checkmark in the box next to "[n]o

medical contraindication to performing this job, with the

following recommended accommodations or job training," but

underneath he wrote, "can perform all essential job functions of

EMT except: — 2 handed lift independent or with partner."

On January 14, 1998, Fallon told the appellant that Dr.

Winters had reviewed her file and refused to pass her because

she could not perform two-handed lifting. The appellant

expressed dismay that a doctor who had never seen her could

determine that she was unable to do the lifting necessary for

the EMT position, and soon filed a charge of disability

discrimination with the Massachusetts Commission Against

Discrimination (MCAD). FAS answered the MCAD complaint and

identified the appellant's inability to perform two-handed lifts

as "the sole reason" why she was not hired. FAS further alleged

that it had relied on the advice of Milton Hospital in

determining that the appellant was unable to perform an

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essential job function (and, thus, in rejecting the appellant's

application).

On April 13, 1998, FAS's attorney wrote to the

appellant's counsel stating that FAS still would be willing to

hire the appellant if she could demonstrate how, with or without

reasonable accommodation, she could perform the essential job

function of two-handed lifting. In that letter, FAS made clear

that it regarded the appellant as "otherwise qualified for the

job." The appellant did not respond to this offer.

In the meantime, the appellant applied for an EMT

position with American Medical Response (AMR). AMR agreed to

hire her on the condition that she pass a strength test. One

portion of this test required that the appellant lift ninety

pounds to knuckle height with her one functioning arm. At

first, the appellant could not satisfy this requirement. She

began a weightlifting regimen and, a few weeks later, passed the

strength test. AMR hired her as a part-time EMT in April 1998.

Three months later, the appellant accepted a full-time EMT

position with Boston Emergency Medical Services (BEMS). She has

performed that job successfully without any special

accommodations.

On May 29, 1998, the appellant forsook the MCAD and

brought suit in the United States District Court for the

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District of Massachusetts. She alleged, inter alia, violations

of the ADA and its state counterpart, Mass. Gen. Laws ch. 151B,

§ 4. At the close of discovery, FAS moved for summary judgment.

The appellant resisted the motion. The district court referred

the matter to a magistrate judge. After expressing doubt about

whether lifting could be considered a "major life activity," the

magistrate judge concluded that the appellant was not

substantially limited in this activity because she could lift at

least forty to fifty pounds at the time that she applied for

work with FAS (and, moreover, she had stated in her deposition

that she could do whatever she desired without an accommodation

of any kind). Finding the appellant not disabled, the

magistrate judge recommended the entry of summary judgment in

FAS's favor. The appellant objected to the recommendation.

The district court overruled the objection and granted

FAS's motion for brevis disposition. The court accepted the

reasoning set forth in the magistrate judge's report and

recommendation, and added a further ground: that the appellant

was not qualified for the position when she applied to FAS

because she was unable to lift sufficient weight to enable her

to perform essential job functions. This timely appeal

followed.

II. DISCUSSION

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 As we approach the merits of this appeal, we are

mindful that summary judgment is appropriate only when "the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law."

Fed. R. Civ. P. 56(c). Our review of a district court's grant

of summary judgment is plenary. N. Am. Specialty Ins. Co. v.

Lapalme, 258 F.3d 35, 37 (1st Cir. 2001).

We are mindful, too, that the ADA was designed to

eliminate discrimination against individuals with disabilities.

42 U.S.C. § 12101(b)(1). To that end, it prohibits any covered

employer — and FAS is within that category, see id. § 12111(5)

— from discriminating against a qualified individual because of

that individual's disability. This prohibition extends to a

wide variety of employment-related matters, including

recruitment and hiring. Id. § 12112(a).

To evaluate the merits of a failure-to-hire claim

brought under the ADA, an inquiring court must ask three

questions: (1) Did the disappointed applicant have a

disability? (2) Was the applicant an otherwise qualified

individual? (3) Did the employer discriminate against the

applicant on the basis of that disability? See Laurin v.

-12-
Providence Hosp., 150 F.3d 52, 56 (1st Cir. 1998). A negative

answer to any of these queries dooms the applicant's quest.

In this case, the district court — for simplicity's

sake, we use that term institutionally and do not distinguish

hereafter between the district judge and the magistrate judge —

concluded that the appellant could not survive the first two

inquiries because she was neither disabled within the purview of

the ADA nor qualified for the EMT position. We examine this

bipartite conclusion.5 At FAS's behest, we also examine whether

the appellant has made out a genuine issue of material fact as

to discrimination.

A

The word "disability" is a term of art in the ADA

context. The statute offers three alternative definitions: a

person is considered disabled if she suffers from "a physical or

mental impairment that substantially limits one or more of [her]

5Although we write in terms of the ADA, our comments apply
with equal force to the appellant's claim under its state-law
counterpart, Mass. Gen. Laws. ch. 151B, § 4. That statute
tracks the ADA in virtually all respects. Whitney v. Greenberg,
Rosenblatt, Kull & Bitsoli, P.C., 258 F.3d 30, 32 n.1 (1st Cir.
2001). The lone exception is that the use of mitigating
measures must be taken into account when determining the extent
of an individual's disability under the ADA, Sutton v. United
Air Lines, Inc., 527 U.S. 471, 482 (1999), whereas the
disability must be considered in its natural state under
Massachusetts law, Dahill v. Police Dep't of Boston, 748 N.E.2d
956, 963 (Mass. 2001). Inasmuch as the appellant does not use
a prosthetic device, this difference is irrelevant here.

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major life activities," 42 U.S.C. § 12102(2)(A); is stigmatized

by "a record of such an impairment," id. § 12102(2)(B); or is

"regarded as having such an impairment," id. § 12102(2)(C).

Although Congress did not explicitly delegate authority to

refine the meaning of these statutory terms to any particular

administrative agency, see Toyota Motor Mfg. v. Williams, 122 S.

Ct. 681, 689 (2002); Sutton v. United Air Lines, Inc., 527 U.S.

471, 479 (1999), the Equal Employment Opportunity Commission

(EEOC) seized the initiative and promulgated regulations aimed

at clarifying the statutory terminology, see 29 C.F.R. §

1630.2(g)-(l) (1991).

Two pertinent EEOC regulations advance our analysis.

First, the EEOC has defined "major life activities" to include

"functions such as caring for oneself, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning, and

working." Id. § 1630.2(i). In an interpretive guidance

accompanying the regulations, the EEOC noted that this list is

not all-encompassing and emphasized that point by adding

sitting, standing, reaching, and lifting to the roster of likely

major life activities. Id. pt. 1630, App. § 1630.2(i).

Second, the EEOC has defined the term "substantially

limits" in this context as:

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 (i) Unable to perform a major life activity
that the average person in the general
population can perform; or

(ii) Significantly restricted as to the
condition, manner or duration under which an
individual can perform a particular major
life activity as compared to the condition,
manner, or duration under which the average
person in the general population can perform
that same major life activity.

Id. § 1630.2(j)(1). The EEOC has gone a step further and

recommended that a court, in applying this standard, consider

the nature and severity of the impairment, its expected

duration, and its permanent or long-term impact. Id. §

1630.2(j)(2). Against this backdrop, we turn to the question

of whether the appellant, contrary to the district court's

intuition, has succeeded in making out a genuine issue as to

what is clearly a material fact: whether she suffers from a

disability. To mount this inquiry, we first must determine

whether lifting is a major life activity. The "touchstone for

determining an activity's inclusion under the statutory rubric

is its significance." Bragdon v. Abbott, 524 U.S. 624, 638

(1998) (citing Abbott v. Bragdon, 107 F.3d 934, 940 (1st Cir.

1997)). The term "major life activities," as used in the ADA,

"refers to those activities that are of central importance to

daily life." Toyota, 122 S. Ct. at 691. Whether lifting pen to

paper or glass to mouth, lifting is an integral part of everyday

-15-
life and seems to fit comfortably within the parameters set by

the Court. We conclude, therefore, that the EEOC appropriately

interpreted the statute, see 29 C.F.R. pt. 1630, App. §

1630.2(i), and that lifting is a major life activity.

The next question is whether the appellant is

substantially limited in this major life activity. The ADA

"addresses substantial limitations on major life activities, not

utter inabilities." Bragdon, 524 U.S. at 641. Thus, when an

impairment results in significant limitations, that impairment

is substantially limiting even if the limitations are not

insurmountable. See id.; see also Sutton, 527 U.S. at 488

(explaining that "individuals who use prosthetic limbs or

wheelchairs may be mobile and capable of functioning in society

but still be disabled because of a substantial limitation on

their ability to walk or run"). The focus is not on whether the

individual has the courage to participate in the major life

activity despite her impairment, but, rather, on whether she

faces significant obstacles when she does so. The EEOC's

emphasis on "condition, manner, or duration" in contrasting how

a disabled person performs an activity and how a member of the

general public performs that same activity dovetails with this

formulation.

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 In concluding that the appellant had no substantial

limitation on her ability to lift, the district court relied

upon two items. The first of these was the appellant's

optimistic self-assessment of her capabilities. This

consideration deserves little weight. Although the appellant

took an upbeat view of her prowess (when FAS's counsel asked,

during her deposition, if there was anything that she would like

to do that she had not been able to do because of her missing

hand, she replied "no"), that was more a testament to her

determination than to her condition. She did not dwell on the

restrictions on lifting that she had to overcome in order to

achieve her objectives — and those restrictions comprise the

focal point of this prong of the ADA inquiry. The key question

is not whether a handicapped person accomplishes her goals, but

whether she encounters significant handicap-related obstacles in

doing so. For summary judgment purposes, we must resolve this

question in the appellant's favor.

The second consideration credited by the district court

was the appellant's demonstrated ability to lift forty to fifty

pounds. In attaching significance to this factor, the court

relied on case law holding that restrictions on heavy lifting

are not indicative of a disability. E.g., Snow v. Ridgeview

Med. Ctr., 128 F.3d 1201, 1207 (8th Cir. 1997) (holding that a

-17-
restriction on lifting more than twenty-five pounds is

insufficient to constitute a disability within the meaning of

the ADA); Ray v. Glidden Co., 85 F.3d 227, 229 (5th Cir. 1996)

(theorizing that the "inability to perform heavy lifting does

not render a person substantially limited" in the major life

activity of lifting).

As a comparison between the impairments alleged in

those cases and the appellant's impairment illustrates, that

reliance is mislaid. The cases holding that an inability to

lift heavy objects does not constitute a substantial limitation

on a person's overall ability to lift rely implicitly in some

instances, e.g., Snow, 128 F.3d at 1207, and explicitly in

others, e.g., Williams v. Channel Master Satellite Sys., Inc.,

101 F.3d 346, 349 (4th Cir. 1996) (per curiam), on the rationale

that a capacity to perform heavy lifting is not a trait shared

by the majority of the population. That reasoning is

understandable: strength varies widely throughout the

population, and if a restriction on heavy lifting were

considered a substantial limitation on a major life activity,

then the ranks of the disabled would swell to include infants,

the elderly, the weak, and the out-of-shape. Congress obviously

did not mean to extend the protections of the ADA to every

physical impairment that precluded the performance of some

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particularly difficult manual task. See Toyota, 122 S. Ct. at

691.

Although these cases seem to be correctly decided, they

are inapposite here. A missing hand is a more profound

impairment than a simple inability to lift objects over a

certain weight. Such an impairment poses a type of restriction

on lifting not shared by a significant portion of the populace.

While most people can use two hands to pick up a plate or carry

groceries (or even do both at the same time), a one-handed

individual must develop an array of techniques to overcome her

innate limitation. Even if she is able to lift more poundage

than many two-handed individuals, the manner in which she lifts

and the conditions under which she can lift will be

significantly restricted because she only has one available

limb. In this sense, at least, the appellant's lack of a hand

will substantially limit her ability to lift notwithstanding her

extraordinary efforts to compensate for her impairment.

FAS counters with the argument that the appellant

failed to provide sufficient proof that her impairment

substantially limited her ability to lift (i.e., she did not

offer evidence elucidating the exact nature of her inability to

lift) and, therefore, failed to create a genuine issue as to

whether she is substantially limited in this major life

-19-
activity. In mounting this argument, it relies upon the Supreme

Court's decision in Albertson's, Inc. v. Kirkingburg, 527 U.S.

555 (1999), a case in which the Court held that a monocular

individual must prove his disability "by offering evidence that

the extent of the limitation in terms of [his] own experience .

. . is substantial." Id. at 567.

This argument misconstrues the holding in Albertson's.

Central to Justice Souter's analysis was the nature of a

monocular impairment. Even though a monocular individual has

only one eye with which to see, the Court explained that the

individual's body often will adjust its vision to account for

this impairment. Id. at 566-67. Just as artificial mitigating

measures must be factored into the disability calculus, Sutton,

527 U.S. at 482, so too adjustments undertaken within the body's

own systems must be taken into account. Albertson's, 527 U.S.

at 565-66. For present purposes, the key is that the

Albertson's Court did not, as a matter of law, dismiss

monocularity as a disability. Rather, the Court held that a

monocular individual, like any other ADA plaintiff, must proffer

evidence demonstrating the extent of the limitation on the

designated major life activity (there, the ability to see). Id.

at 567. The Court emphasized that this burden is modest and

-20-
indicated that, as a general rule, monocular individuals will

satisfy the ADA's criteria for disability. Id.

The Supreme Court's recent decision in Toyota is along

the same lines. There, the Court held that a plaintiff

afflicted with carpal tunnel syndrome cannot rely upon that

diagnosis alone to prove a disability under the ADA. Toyota,

122 S. Ct. at 692. The Court reminded us that:

An individualized assessment of the
effect of an impairment is particularly
necessary when the impairment is one whose
symptoms vary widely from person to person.
. . . Given the[] large potential
differences in the severity and duration of
the effects of carpal tunnel syndrome, an
individual's carpal tunnel syndrome
diagnosis, on its own, does not indicate
whether the individual has a disability
within the meaning of the ADA.

Id. (citations omitted). Since the plaintiff's particular form

of carpal tunnel syndrome permitted her to engage in a wide

range of manual tasks, the Court was unwilling to find that her

impairment could be considered disabling as a matter of law.

Id. at 694.

When all is said and done, however, these decisions do

not alter the usual standard that obtains on summary judgment in

ADA cases: "[A] plaintiff must proffer evidence from which a

reasonable inference can be drawn that [a major life] activity

is substantially or materially limited." Snow, 128 F.3d at

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1207. The evidence needed to establish the limiting qualities

of a particular impairment almost always will be unique to that

impairment and to the individual involved. See Sutton, 527 U.S.

at 483. Still, that evidence need not necessarily be composed

of excruciating details as to how the plaintiff's capabilities

have been affected by the impairment. See Albertson's, 527 U.S.

at 566 (observing that "some impairments may invariably cause a

substantial limitation of a major life activity"). We would not

demand, for example, that a paraplegic expound on the many

scenarios in which she is unable to walk. Indeed, adopting such

a rule would place deserving ADA plaintiffs in an unenviable

"catch-22:" in order to demonstrate that she is disabled, the

plaintiff also would have to demonstrate why she is unqualified

to do the job to which she aspires. See David Olsky, Note, Let

Them Eat Cake: Diabetes and the Americans with Disabilities Act

After Sutton, 52 Stan. L. Rev. 1829, 1832 (2000).

We need not probe this point too deeply, for the record

shows that, at the most general level of diagnosis, the

appellant is a genetic amputee. To supplement this diagnosis,

she has supplied specific information about the nature of her

impairment — her arm is missing a few inches below the elbow —

and she has confirmed that she does not use a prosthesis or

other correcting device. The record also contains some evidence

-22-
about the extent of her limitations in grasping things; the

appellant revealed during the preemployment physical that she

uses the remnant of her left arm only to pin and hook objects.

Taking this information in the light most favorable to the

appellant, we think that it suffices to support a finding that

she is significantly restricted in the activity of lifting. No

more is exigible at the summary judgment stage.6

B

The ADA's employment discrimination prohibitions apply

only to those who are qualified to perform particular jobs. See

42 U.S.C. § 12112(a). In this context, Congress defined a

"qualified individual with a disability" as "an individual with

a disability who, with or without reasonable accommodation, can

perform the essential functions of the employment position that

such individual holds or desires." Id. § 12111(8). The

employee or applicant bears the burden of showing that she meets

this standard. See EEOC v. Amego, 110 F.3d 135, 144 (1st Cir.

1997); see also Laurin, 150 F.3d at 61 (explaining that an ADA

plaintiff must present some evidence to rebut the employer's

conclusion that a particular function is essential for a

6
Inasmuch as a genuine issue of material fact exists as to
whether the appellant is disabled, we need not discuss whether
the record, viewed in her favor, supports a finding that she was
"regarded as" disabled by FAS.

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particular job). Moreover, if (and to the extent that)

essential job functions implicate the safety of others, the

plaintiff must demonstrate that she can perform those functions

in a manner that will not endanger others. Amego, 110 F.3d at

144.

The EEOC has promulgated regulations that elaborate on

this subject. The regulations explain that a qualified

individual "satisfies the requisite skill, experience, education

and other job-related requirements of the employment position

such individual holds or desires, and . . . with or without

reasonable accommodation, can perform the essential functions of

such position." 29 C.F.R. § 1630.2(m). The regulations

describe "essential job functions" somewhat tautologically as

"fundamental job duties," exclusive of "the marginal functions

of the position." Id. § 1630.2(n)(1).

In deciding whether a specific job function is

essential or marginal, courts must pay heed "to the employer's

judgment as to what functions of a job are essential, and if an

employer has prepared a written description before advertising

or interviewing applicants for the job, this description shall

be considered evidence of the essential functions of the job."

42 U.S.C. § 12111(8). The EEOC's regulations add that

"[e]vidence of whether a particular function is essential

-24-
includes, but is not limited to," an employer's determination of

what is an essential function of the job. 29 C.F.R. §

1630.2(n)(3) (emphasis supplied). They also recommend

considering evidence of the amount of time spent performing the

particular function, the consequences of not requiring the

applicant to perform the function, and the past and current work

experience of incumbents in the job (or in similar positions

elsewhere). Id. The purpose of these provisions is not to

enable courts to second-guess legitimate business judgments,

but, rather, to ensure that an employer's asserted requirements

are solidly anchored in the realities of the workplace, not

constructed out of whole cloth. See id. pt. 1630, App. §

1630.2(n).

Following the statutory and regulatory mosaic, we have

made clear that the employer's good-faith view of what a job

entails, though important, is not dispositive. See Ward v.

Mass. Health Research Inst., 209 F.3d 29, 34 (1st Cir. 2000)

(noting that an employer's view of job requirements generally

should be given "substantial weight," but that it is "only one

factor" in the mix); see also Amego, 110 F.3d at 147 (explaining

that "the employer's judgment is entitled to some weight"). In

the final analysis, the complex question of what constitutes an

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essential job function involves fact-sensitive considerations

and must be determined on a case-by-case basis.

This body of law serves as the backdrop for a

discussion of the second issue in this case. In moving for

summary judgment, FAS argued that the appellant could not

perform a duty that it purportedly required of all EMTs:

lifting seventy pounds. The district court agreed.

Consequently, the court held, as an alternate ground for summary

judgment, that the appellant was not qualified to perform the

job of an EMT when she applied to FAS. Appellate review of this

holding involves a bifurcated inquiry. First, we ask whether

the plaintiff could have performed the essential functions of

the particular job; and, if not, whether some reasonable

accommodation would have enabled her to perform those functions.

Ward, 209 F.3d at 33.

To prove its point, FAS's memorandum in support of

summary judgment cited a portion of the appellant's deposition

testimony. There, she described the weightlifting regimen that

she undertook after she failed AMR's strength test, stating that

she had begun with forty- and fifty-pound weights — which she

could easily lift — and worked her way up to ninety pounds.

Those statements led to the following exchange (which FAS deems

-26-
conclusive proof of the appellant's inability to perform an

essential job function):

Q. At what point in terms of the amount of
time you spent working on improving your
strength did you get to the point where you
could lift 60 pounds?

A. I don't know.

Q. Was it more than two weeks?

A. I honestly don't know, I don't remember.

Q. Could it have been as much as a month?

A. To get past 60 pounds?

Q. Yes.

A. I doubt it. I think it got — it was
about a month for me to be able to lift the
required amount to pass the exam.

Q. And you don't — you can't currently
recall what point in that exercise strength-
building process you reached the ability to
lift any particular level weight.

A. No.

The appellant objected to the summary judgment motion.

Along with her opposition, she filed an affidavit in which she

swore that, when she sought employment with FAS, she was able to

do all the lifting that the EMT position legitimately required.

To bolster this statement, she pointed to her performance in

practical exercises conducted during the EMT certification

classes (where, with a partner, she consistently lifted

-27-
classmates of an average weight of 160 pounds on a weighted

stretcher). She explained the seeming inconsistency between

this statement and her deposition testimony on the basis that

the latter related to incremental weight training, not to

practical, in-the-field experience. She concluded that she

could have passed the FAS strength test had it been administered

to her as originally scheduled by Dr. Qazi.

The district court accepted FAS's appraisal, noting

that "[i]t appears from the [appellant's] deposition, that at

the time that she applied for the EMT position with [FAS], she

was unable to lift 60 pounds."7 The court gave short shrift to

the affidavit because a party "may not create a triable issue

simply by filing an affidavit that contradicts an admission in

an earlier deposition."

For purposes of summary judgment, we find the district

court's interpretation of the facts too constricted. Although

it is true that a party opposing summary judgment cannot create

a genuine issue of material fact by the simple expedient of

filing an affidavit that contradicts clear answers to

unambiguous questions in an earlier deposition, Colantuoni v.

7
The perceived inability to lift sixty pounds, if documented
in the record, would mean, of course, that the appellant lacked
the ability to lift the seventy-pound minimum allegedly required
by FAS.

-28-
Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994),

the deposition testimony here was neither clear nor unambiguous.

The appellant testified that she did not know whether she could

lift a particular weight on a particular date, but that it did

not take her long to reach ninety pounds. Thus, the deposition

testimony is, at best, inconclusive as to whether she could have

lifted any given weight lower than ninety pounds at some earlier

time (say, when she applied for an EMT position with FAS). A

subsequent affidavit that merely explains, or amplifies upon,

opaque testimony given in a previous deposition is entitled to

consideration in opposition to a motion for summary judgment.

Shepherd v. Slater Steels Corp., 168 F.3d 998, 1007 (7th Cir.

1999); see also Herring v. Can. Life Assur. Co., 207 F.3d 1026,

1030-31 (8th Cir. 2000). Thus, the district court erred in

disregarding the appellant's affidavit.

We note, too, that other competent evidence in the

record suggests that, when she sought employment at FAS, the

appellant was qualified to do the necessary lifting. Several

months before she applied (i.e., during her certification

classes), she demonstrated her ability, with a partner, to lift

and carry adults on weighted stretchers. Several months after

she applied (i.e., during her tenure at AMR and, later, at

BMES), she demonstrated her ability to perform the full range of

-29-
an EMT's duties, lifting included. This temporal bracketing

constitutes fairly strong circumstantial evidence which, when

combined with the other evidence of record, suffices to raise a

reasonable inference that the appellant was qualified to fill

FAS's vacant EMT position.8

In all events, the district court should not have

attached decretory significance to the specific weight that the

appellant might (or might not) have been able to lift at the

time that she applied. As said, a court should give

consideration to what an employer deems essential, but also

should take care to ensure that such functions are essential in

fact. Here, the record reveals a genuine issue as to whether

FAS, at the time it rejected the appellant's employment

application, required all its EMTs to be able to lift seventy

pounds. We explain briefly.

The record reflects that when the appellant submitted

to the preemployment examination, FAS did not routinely screen

prospective employees to confirm their ability to lift. Indeed,

Fallon admitted in his deposition that the lifting requirement

was only in its nascent stage, and that the appellant probably

8
This inference is not undercut by the appellant's failure
initially to pass the AMR lifting test. After all, AMR insisted
that its EMTs lift a greater weight — ninety pounds — than FAS
purportedly required, and the appellant met this higher standard
after a brief regimen of weight training.

-30-
would have been the first to be required to pass such a test.

This dovetails with Dr. Qazi's deposition testimony to the

effect that he had tested the ability to lift only on rare

occasions in connection with his work for FAS, and that he was

not aware of any firm lifting requirement at the time that he

examined the appellant. The evidence, then, does not support

the conclusion that, as a matter of law, lifting seventy pounds

constituted an essential function of the EMT position.

FAS presents a variation on this theme, asserting that

it required its EMTs to perform two-handed lifting, and that

having two hands is a sine qua non of the EMT position. To

buttress this assertion, FAS cites the list of essential job

functions that it was preparing in conjunction with Milton

Hospital. The list, not yet in final form when the appellant

applied, stated that the EMT position involved "[l]ifting with

two hands individually up to 70 pounds for a total height of 6

inches from knuckle height occasionally." FAS told the MCAD

that the appellant's inability to perform two-handed lifting was

"the sole reason" that it refused to hire her.

Although the question is not free from doubt — after

all, it is certainly reasonable for an employer to be concerned

about whether a one-handed EMT could fulfill her

responsibilities in a field involving the health and safety of

-31-
others — FAS's "essential function" argument does not entitle it

to summary judgment on the record as it stands. If two hands

were essential, then it logically would follow that an

individual with only one hand — like the appellant — could never

satisfy that requirement (and, therefore, could not qualify for

the position). But FAS's actions belie such a conclusion.

After all, FAS made a conditional offer of employment to the

appellant, whom it knew to have only one hand, and requested

that she submit to a preemployment examination. In and of

itself, that request attests to FAS's belief, at the relevant

time, that a one-handed individual might be able to perform the

essential functions of the EMT position. If two-handed lifting

could only be done by a two-handed person, then the

preemployment examination would have been at best an empty

exercise, and at worst a cynical charade.

Other evidence also undermines the argument that two-

handed lifting is an essential job function. For one thing, the

MDPH certified the appellant to work as an EMT despite the fact

that she had only one hand. For another thing, the "essential

job function" list was merely a work in progress at the critical

time. Third, Fallon testified that the list had been drafted on

the basis of observations made by a member of the Milton

Hospital team concerning how EMTs picked up stretchers while

-32-
working at FAS. Thus, the list reported on a historical fact —

how EMT work traditionally has been performed — which, while

relevant, did not conclusively prove that two hands were

required to perform this task. Further, the appellant's

deposition testimony and affidavit regarding her own experiences

tend to prove that two hands are not essential for this purpose.

To cinch matters, when Fallon was asked whether two-handed

lifting necessarily meant lifting with two hands, he replied:

"No, it does not."

We add a caveat. Our rejection of FAS's position does

not mean that the "essential function" inquiry is never amenable

to summary judgment. When an employer proves that it has gone

through a deliberative process or has mustered evidence of

judgments of public health officials, that evidence may undercut

any argument that the employer based its decision on the

plaintiff's proficiency in a marginal function of the job. Cf.

Amego, 110 F.3d at 146-47 & n.11. But the line between an

essential function that seems at first blush to be self-evident

and a marginal function is sometimes blurred. That is the case

here. Taking the full panoply of proof into account and

indulging all reasonable inferences in the appellant's favor, a

rational factfinder could conclude that the appellant was

qualified for the EMT position at the time that she sought

-33-
employment with FAS.9 See, e.g., Holiday v. City of Chattanooga,

206 F.3d 637, 644-45 (6th Cir. 2000) (reversing an entry of

summary judgment in analogous circumstances).

C

FAS urges us to hold that the appellant has not adduced

sufficient evidence to support an inference that it

discriminated against her on the basis of her disability.

Inasmuch as we may affirm the entry of summary judgment on any

independent ground made manifest by the record, Houlton

Citizens' Coalition v. Town of Houlton, 175 F.3d 178, 184 (1st

Cir. 1999), we consider this exhortation.

FAS's argument brings into focus a fine line that

separates permissible and impermissible decisionmaking under the

ADA. The ADA prohibits employment decisions based on

stereotypes about a disability, but it does not prohibit

decisionmaking based on the actual attributes of a disability.

Pesterfield v. Tenn. Valley Auth., 941 F.2d 437, 443 (6th Cir.

1991); Anderson v. Univ. of Wis., 841 F.2d 737, 740 (7th Cir.

1988).10 Thus, an employer may base a decision on an employee's

9
Whether FAS might reasonably have believed that the
appellant, if hired, would have posed a threat to patients or
coworkers is a different question. We return to that question
in due course. See infra Part II(C).
10
Although both of these cases were decided under the
Rehabilitation Act of 1973, 29 U.S.C. § 794(a), their holdings

-34-
actual limitations, even if those limitations result from a

disability. Matthews v. Commonwealth Edison Co., 128 F.3d 1194,

1196 (7th Cir. 1997). By the same token, an employer may refuse

to hire a prospective employee because she is unable to do the

job, even though a handicap lies at the root of that inability.

Of course, an employer cannot insulate itself from

liability under the ADA merely by asserting its belief th a t a

prospective employee's known disability will limit her ability

to perform a particular job to such an extent as to disqualify

her from employment. Even if the employer's belief is honestly

held, on particular facts a jury still might conclude that it

rested on an unfounded stereotype (and, therefore, constituted

discrimination). See Zapata-Matos v. Reckitt & Colman, Inc.,

277 F.3d 40, 45-46 (1st Cir. 2002). To avoid liability in this

sort of situation, the evidence must show that the employer

understood the nature, extent, and implications of the

prospective employee's particular impairment, and that the

employment decision reflected that understanding. See Holiday,

206 F.3d at 643. Only by insisting on that level of proof can

courts effectuate one of the primary goals of the ADA: "to

prohibit employers from making adverse employment decisions

are fully transferable to cases arising under the ADA. See
Phelps v. Optima Health, Inc., 251 F.3d 21, 23 n.2 (1st Cir.
2001).

-35-
based on stereotypes and generalizations associated with the

individual's disability rather than on the individual's actual

characteristics." EEOC v. Prevo's Family Market, Inc., 135 F.3d

1089, 1097 (6th Cir. 1998).

The trick, then, is to distinguish between unfounded

stereotypes, on the one hand, and frank assessments of the

actual consequences of a disability, on the other hand. That

inquiry is fact-dependent. For example, in a situation in which

an employer fails to hire an applicant and attributes that

failure to the limitations imposed by the applicant's known

disability, the employer must show that it made due inquiry into

the applicant's impairment, sufficient to inform itself of those

limitations, and that the results of that individualized inquiry

furnished a reasonable foundation for the employer's belief that

the applicant was unqualified. See Holiday, 206 F.3d at 643.

If the employer's assumptions about an applicant's disability

are unreasonable, or are not based upon a good-faith assessment

of that individual's capabilities and ultimately prove to be

groundless, its refusal to hire will engender liability under

the ADA. See Smith v. Chrysler Corp., 155 F.3d 799, 807-08 (6th

Cir. 1998).

Here, FAS claims that the evidence shows conclusively

that it reached its decision not to hire the appellant on the

-36-
basis of her real capabilities (or lack thereof), not on an

illegal stereotype. The critical question, then, is whether the

adverse employment action — the refusal to hire — resulted from

an informed and considered decision, based on appropriate

criteria. Because this case was decided on summary judgment,

that question mutates into a question of whether the record

reveals a genuine issue of material fact as to why FAS rejected

the appellant's application for the EMT position.

To answer that question, we reassemble the familiar

framework first erected in McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802-05 (1973). See Higgins v. New Balance Athletic

Shoe, Inc., 194 F.3d 252, 264 (1st Cir. 1999) (approving use of

McDonnell Douglas framework in connection with ADA claims of

disability discrimination). Under that framework, the plaintiff

first must establish a prima facie case by "prov[ing] by a

[preponderance] of the evidence that she applied for an

available position for which she was qualified, but was rejected

under circumstances which give rise to an inference of unlawful

discrimination." Tex. Dep't of Cmty. Affairs v. Burdine, 450

U.S. 248, 253 (1981). This showing is easily made and, once

achieved, triggers a presumption of discrimination. At that

point, the burden shifts to the defendant to articulate a

legitimate, nondiscriminatory reason for the adverse employment

-37-
action. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07

(1993). This is a burden of production, not a burden of

persuasion, and satisfying it "serves simultaneously to meet the

plaintiff's prima facie case by presenting a legitimate reason

for the action and to frame the factual issue with sufficient

clarity so that the plaintiff will have a full and fair

opportunity to demonstrate pretext." Burdine, 450 U.S. at 255-

56.

Once the employer has produced such an explanation and

the plaintiff has questioned it (as, say, pretextual or

irrelevant), the initial presumption evaporates. Mesnick v.

Gen. Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991). The trier of

fact then focuses on the main event: deciding whether the

evidence adduced is sufficient to sustain a finding of

discriminatory intent on the part of the defendant. See Reeves

v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000).

The ultimate question is not the veracity of the defendant's

explanation — proof of falsity, in and of itself, does not

compel a finding of discriminatory intent, see St. Mary's

Honor's Ctr., 509 U.S. at 511 — but, rather, whether the

plaintiff's evidence suffices to demonstrate the defendant's

-38-
animus.11 Zapata-Matos, 277 F.3d at 45; accord Abramian v.

President & Fellows of Harvard Coll., 731 N.E.2d 1075, 1085

(Mass. 2000) (establishing same principle under counterpart

Massachusetts statute).

In the case at hand, the appellant presented evidence

that she is disabled; that she applied and was qualified for the

EMT position; that she was rejected despite her qualifications;

and that FAS thereafter continued to hire EMTs. This was enough

to satisfy the prima facie case requirement. See Gadson v.

Concord Hosp., 966 F.2d 32, 34 (1st Cir. 1992) (per curiam).

FAS responded by providing an explanation for its refusal to

hire — the appellant's limited capabilities — that was

sufficient on its face to dispel the presumption created by the

prima facie case. See Burdine, 450 U.S. at 254-55.

With the presumption of discrimination gone, we

scrutinize the facts, indulging all reasonable inferences in the

appellant's favor, and ask whether the evidence conclusively

demonstrates that FAS acted on the basis of an objectively

reasonable assessment of the appellant's capabilities and not on

11
We do not mean to suggest, however, that a factfinder may
not infer discriminatory intent from the defendant's proffer of
a pretextual explanation. The opposite is true. Reeves, 530
U.S. at 147.

-39-
the basis of an unfounded stereotype about the nature of her

impairment. We do not think that it does.

In the first place, FAS continually asserted its

position that a one-handed woman could not be an EMT without

hurting herself or others, yet never fully tested the

appellant's lifting capabilities. FAS persisted in this course

of conduct even after the appellant alerted Hamilton to the fact

that the strength test recommended by Dr. Qazi had not been

performed and complained that Dr. Winters had never examined

her. Given this state of affairs, a reasonable factfinder could

conclude that such an examination was vital to an understanding

of how (and to what extent) the appellant might be able to

balance stretchers, carry patients down stairs, and otherwise

perform the requisite duties of an EMT. By the same token, a

factfinder could conclude that, absent such testing, FAS based

its decision on a stereotype about one-handed persons.

In the second place, the record shows that the

appellant ultimately succeeded in performing all the duties of

an EMT with two other employers (and, thus, overcame obstacles

that FAS had thought insurmountable). This evidence, coupled

with the appellant's successful completion of the "practical"

portion of the EMT certification examination, could support an

inference that she was able to perform those duties at the time

-40-
FAS rejected her application. See, e.g., Holiday, 206 F.3d at

644-45; Gilday v. Mecosta County, 124 F.3d 760, 766 (6th Cir.

1997). Thus, a reasonable factfinder could conclude that FAS's

negative assumptions not only were based on an unfounded

stereotype about the appellant's impairment but also were

inaccurate.

In an effort to blunt the force of these facts, FAS

argues that it was entitled to rely on the advice it received

from Dr. Winters. It notes that the ADA specifically permits a

prospective employer to commission a preemployment physical

examination once a conditional offer of employment has been

made, see 42 U.S.C. § 12112(d)(3), and asseverates that its

good-faith reliance on the results of such an examination should

put to rest any legitimate question about its intentions.

The case law does not support so mechanistic a view.

To be sure, obtaining a physician's detailed assessment and then

acting in accordance with it can be persuasive evidence that an

employer has based its decision on an individualized inquiry

into the applicant's capabilities. See, e.g., Pesterfield, 941

F.2d at 443-44; Bento v. I.T.O. Corp., 599 F. Supp. 731, 744-45

(D.R.I. 1984). But a physician's endorsement does not provide

complete insulation. An employer cannot evade its obligations

under the ADA by contracting out personnel functions to third

-41-
parties — and this prohibition extends to an employer's attempt

to use a preemployment examination as conclusive proof of an

applicant's physical capabilities. Holiday, 206 F.3d at 645;

cf. 42 U.S.C. § 12112(d)(1) (prohibiting disability

discrimination in preemployment physical examinations); 29

C.F.R. § 1630.14(d)(2) (same).

The short of it is that a medical opinion is often

cogent evidence of nondiscriminatory intent — in some instances,

it may even be enough to justify summary judgment, see, e.g.,

Crocker v. Runyon, 207 F.3d 314, 319 (6th Cir. 2000) — but the

mere obtaining of such an opinion does not automatically absolve

the employer from liability under the ADA. Cf. Bragdon, 524

U.S. at 650 (emphasizing that "courts should assess the

objective reasonableness of the views of health care

professionals without deferring to their individual judgments").

Thus, an employer cannot slavishly defer to a physician's

opinion without first pausing to assess the objective

reasonableness of the physician's conclusions. See Holiday, 206

F.3d at 645 (explaining that "[c]ourts need not defer to an

individual doctor's opinion that is neither based on the

individualized inquiry mandated by the ADA nor supported by

objective scientific and medical evidence").

-42-
 Holiday has especial pertinence to the present appeal.

In that case, an HIV-positive individual applied for a position

as a police officer, and subsequently passed both the written

and physical tests necessary to join the force. Id. at 640.

Then, in the course of a preemployment examination, conducted by

a physician specializing in occupational health matters, he

revealed his HIV status. The physician eschewed any

individualized testing of the effect of that impairment but told

the employer that Holiday, due to his HIV-positive status, would

be unable to withstand the rigors of police work. Id. at 641.

After the employer rejected Holiday's bid for employment, he was

hired as a police officer by a different agency. Id. at 644.

The district court granted summary judgment for the

employer, but the court of appeals reversed. It held that the

employer did not have an unconditional right to rely on the

physician's "unsubstantiated and cursory medical opinion" to

settle the question of Holiday's actual qualifications. Id. at

645. The court regarded the absence of any scientific support

for the doctor's opinion as implicating the reasonableness of

the employer's reliance on it. Id. at 647. The court concluded

that "Holiday was entitled to be evaluated based on his actual

abilities and the relevant medical evidence, and to be protected

-43-
from discrimination founded on fear, ignorance or

misconceptions." Id. at 648.

The parallels between Holiday and the case at bar are

easily drawn. In both instances, the applicant had taken

courses and passed tests adumbrating a general fitness for the

position sought. In both, the employer reached its assessment

of the applicant's capabilities on the basis of a preemployment

examination. In both, the physician neglected fully to examine

the applicant or to conduct an individualized examination of the

effects of a known disability — and the employer knew as much.

In both, the physician offered his opinion without citing

objective evidence to show how the disability would affect the

particular applicant's fitness to perform work. And in both,

the applicant obtained a similar position a short time later and

served creditably in it, thus casting doubt on the

reasonableness of the physician's assessment.

We find the reasoning of the Holiday court persuasive,

especially given the striking similarities between that case and

this. We conclude that the appellant adduced sufficient

evidence from which a reasonable factfinder could conclude that

FAS refused to hire her as an EMT without any objective medical

evidence that she was physically incapable of performing the

essential functions of the position, acting instead on the basis

-44-
of its (and its lead physician's) stereotyping of one-handed

persons. We rest this conclusion, in part, on the view that a

reasonable factfinder could determine that Dr. Winters's opinion

was unsupported. After all, Dr. Winters made no inquiry into

the appellant's actual ability to lift (and, indeed, prevented

Dr. Qazi from performing such an evaluation). Moreover, in

light of the fact that the appellant soon found employment as an

EMT elsewhere and performed all the duties of the position

without incident, a reasonable factfinder could infer that Dr.

Winters's opinion was based on an unfounded assumption. We

therefore hold that the Winters opinion does not provide

sufficient certainty to warrant summary judgment in favor of

FAS.12

For these reasons, we deem the record inconclusive on

this prong of the ADA inquiry. A trial must be held to decide

whether FAS acted on an illegal stereotype as opposed to an

adequate assessment of the appellant's capabilities. As part

and parcel of this decision, the factfinder will need to assess,

12
This conclusion is bolstered to some degree by other
evidence in the record from which a reasonable factfinder might
find that FAS's proffered rationale was pretextual. Fallon
asked questions during the employment interview about the nature
of the appellant's disability that may well have offended the
statutory prohibition. See 42 U.S.C. § 12112(d)(2). FAS's use
of an employment application that asked for an enumeration of
physical defects and a workers' compensation history, see supra
note 1, is equally troubling.

-45-
inter alia, the factual foundation of Dr. Winters's opinion, and

whether or not FAS acted in an objectively reasonable way in

relying on that opinion. While an employer need not be

unfailingly correct in its assumptions, its subjective beliefs

about an applicant's limitations must have a sufficient factual

foundation to make them objectively reasonable. See Cook v.

State of R.I., Dep't of Mental Health, Retardation, & Hosps., 10

F.3d 17, 26-27 (1st Cir. 1993).

III. CONCLUSION

We need go no further. Because genuine issues of

material fact persist on at least three salient questions —

whether the appellant's impairment was disabling, whether she

was qualified for the position at the time that she applied, and

whether FAS discriminated against her on the basis of an illegal

stereotype — the district court erred when it granted FAS's

motion for summary judgment. We therefore vacate the judgment

and remand for further proceedings consistent with this opinion.

In so doing, we intimate no view as to how these questions

should be answered or as to the ultimate outcome of the

underlying litigation.

Vacated and remanded. Costs shall be taxed in favor of the

appellant.

-46-