Calef v. The Gillette Co.

United States Court of Appeals
For the First Circuit

No. 02-1444

FRED J. CALEF, JR.,

Plaintiff, Appellant,

v.

THE GILLETTE COMPANY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, Chief U.S. District Judge]

Before

Lynch, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lipez, Circuit Judge.

Nancy Maule-McNally for appellant.

Richard P. Ward, with whom Anthony D. Rizzotti and
Ropes & Gray were on brief for appellee.

March 11, 2003
 LYNCH, Circuit Judge. On December 6, 1996, Fred Calef

was involved in an altercation at work at the Gillette Company

which left his supervisor and co-workers fearing for their safety.

Calef, who previously had received warnings following such

incidents, was fired from his job at Gillette as a result. Calef

brought suit alleging that Gillette violated Title I of the

Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111-12117

(2000), by terminating his employment, failing to reasonably

accommodate him, and harassing him. He also brought a pendent

state claim alleging his discharge was in violation of public

policy.

The district court entered summary judgment against Calef

and dismissed both his federal and state claims. We affirm on two

grounds: Calef failed, within the summary judgment standard, to

show that he was disabled, or that he was an otherwise qualified

individual.

I.

We review the facts in this appeal from summary judgment

in the light most favorable to Calef and take all inferences in his

favor. Rivas Rosado v. Radio Shack, Inc., 312 F.3d 532, 535 (1st

Cir. 2002).

Calef worked as a Production Mechanic at Gillette from

August 22, 1989 to December 13, 1996. In the early 1990s Calef had

several incidents with co-employees which led his supervisors to

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make written reports. In 1990 he "had words" with a co-worker. On

April 4, 1991 Calef and a co-worker each received a warning after

an altercation in which Calef, in anger, had threatened the co-

worker with physical harm after being so threatened himself. On

March 10, 1992, Calef and another employee had to be physically

separated by a supervisor after an incident in which the employees

angrily exchanged insults and profanity and squirted oil on each

other; Calef says the other employee squirted first. Six days

later Calef was involved in another argument with a group leader.

That night Calef got in a heated exchange with a different group

leader and questioned the group leader's performance.

As a result of this series of confrontations with his

supervisors and co-workers -- on April 4, 1991, March 10, 1992, and

March 16, 1992 -- Gillette gave Calef a written warning, which,

inter alia, said Calef was

being told that actions of this nature will not be
tolerated and any such actions in the future could result
in a final warning which could ultimately lead to his
termination from the payroll.

On September 13, 1995, Calef was involved in another

incident, which resulted in his being issued a Final Warning. On

that day, Calef had a confrontation with Jeanette St. Aubin, a

machine operator who worked with him on the second shift. It was

Calef's responsibility to investigate and repair the machines that

St. Aubin operated when she reported trouble with them, as she did

that day. After her encounter with Calef, St. Aubin, crying and

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shaking, went to see supervisor Frank Sciarini in his office. She

said Calef had harassed her about her inability to run machinery

and that whenever she had difficulties with her machine, Calef got

mad at her and told her to speak English. St. Aubin further

reported that Calef had come to her machine, pointed his finger in

her face, raised his hand, made a fist, and stated, "Stop calling

me or I'll punch you in the face." Calef admits raising his voice

toward St. Aubin and he admits that he threatened to hit her. At

the time, St. Aubin was two weeks shy of her sixtieth birthday.

Calef says St. Aubin poked him in the chest and scratched his hand.

He then threatened to hit her but immediately apologized and said

he did not mean it. Calef admitted he "displayed irrational

behavior in the incident."

Calef's Final Warning, dated September 15, 1995, was

issued "for a display of conduct that [was] detrimental to the

interest of the Company." It explicitly warned Calef "that any

single infraction of [Company] policy in the future will result in

his termination from the payroll." Calef reviewed and signed the

Final Warning without objection.

Pursuant to the written Final Warning, Gillette referred

Calef to the Employee Assistance Program (EAP). In lieu of EAP

counseling, he started therapy with Janis M. Soma in September

1995. Soma holds a Ph.D. but is not a medical doctor; we refer to

her as "Dr. Soma." They first met on September 19, 1995. Dr. Soma

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diagnosed Calef as having Attention Deficit Hyperactivity Disorder

(ADHD). At her recommendation, Calef received counseling and

obtained a prescription for Ritalin. Dr. Soma's notes indicate

that Calef had conflicts with others both at work and outside of

work. After the initial meeting with Dr. Soma, for example, Calef

had an incident outside of work. Despite the counseling and

medication, his problems with threatening others continued.

Calef says he began taking Ritalin in the fall of 1995

and took it in 1996. At his deposition, Calef testified that

Ritalin "really helped" the symptoms of his ADHD. Specifically:

It cleared my everyday function, I was doing things
without thinking about them, about completing tasks, more
focused, more - - it was like walking out of a fog and
clearing everything up. With ADD I have to analyze a lot
of things, and it's the turmoil of weighing things and
balancing things before I actually do something
typically, and with Ritalin it was clearing of - - very
clear and - - everything was very clear.

His symptoms of ADHD disappeared or significantly diminished after

he started taking Ritalin. Calef testified:

Q: While you were working at Gillette, while you
were on the job, during this period that you took
Ritalin, OK, namely all of '96 when you were on
the job, OK, did you have any effects of ADD
while you were working or did the Ritalin control
it?

A: I'm sure Ritalin helped control most of it. Most
all of it. I can't think of any that it didn't.
Job performances were good.

On the specific question of his ability to manage his

anger, Calef testified that his ADHD did not cause him to become

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angry. Dr. Soma's testimony agrees. She added that people with

ADHD deal with anger more impulsively. Further, in highly

stressful situations, people with ADHD may not focus as well as

others do.

In early 1996, Calef told a nurse in Gillette's Medical

Department, Cynthia Ross, that he had ADHD. He also told Joan

Pemberton, the head of the Medical Department. Both nurses say

that Calef was adamant they not disclose to others the fact that he

had ADHD and they did not disclose it.1 There is a dispute about

whether Calef's supervisors ever learned from the nurses or from

another source that Calef had ADHD. We will infer in Calef's favor

that Gillette had such notice.

In March 1996, Dr. Soma gave Calef a medical certificate

to support his request for leaves under the Family and Medical

Leave Act (FMLA). Calef was given over 40 days of FMLA leave

between May and December of that year. In this sense, Calef

requested and was given a reasonable accommodation. There was,

though, evidence that Sciarini, the supervisor, did not like Calef

taking FMLA days off.

1
Pemberton said she asked Calef what accommodations he
would need for the ADHD. "He said that no specific accommodations
were necessary and that most of his problems were focused around
anger management. We agreed that if he felt a need for a 'time
out' from his work duties and needed a place to go as a result of
any medical condition, Calef could come to the Medical Department."
Calef never did so.

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 Calef says he had been assigned to work on updated

versions of the machines that he had serviced earlier and he found

the new setting stressful. On May 24, 1996, Dr. Soma addressed a

note to the Gillette Medical Department saying she had advised

Calef it would be in his best interests to reduce his stressors at

work. In particular, she asked if there was a means to reverse his

reassignment at work. The letter did not refer to either ADHD or

a request for a reasonable accommodation. In Calef's favor we will

infer that this letter was adequate to request a reasonable

accommodation. Gillette declined to change his assignment. Calef

did not pursue the matter.

On July 3, 1996, Calef checked into Pembroke Hospital for

depression. On July 17, after returning from hospitalization,

Calef received medical clearance from the Hospital to work at

Gillette "without restrictions."2 At his request, Gillette

permitted him to work half days from July 22, 1996 through August.

Clinical notes from Dr. Soma indicate that, on August 16,

1996, Calef reported "good progress at work and in family.

Sleeping well, blood pressure down, no alcohol use and no suicidal

ideation." He continued to see Dr. Soma at times, and her November

19, 1996, note indicated Calef was taking Zoloft and felt it helped

2
Calef says this information is irrelevant because the
"without restrictions" referred only to depression, and not to
ADHD. It is undisputed, however, that neither plaintiff nor Dr.
Soma offered this clarification to Gillette or renewed their March
request that his reassignment be rescinded.

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him with anger management. Indeed, from his return on July 22,

1996 to December 6, 1996, Calef worked without noticeable incident

or infirmity.

The incident which led to the termination of Calef's

employment occurred on Friday, December 6, 1996. The day before,

as was customary, Gillette sought volunteers for Sunday shifts.

Mechanics usually like that shift since they receive double pay.

Due to scheduling needs, the company had to know by Friday who

would work that Sunday. Calef's group leader, Steven Pennington

(who was senior to Calef and junior to Sciarini) asked for

volunteers to work that Sunday and understood Calef to have

volunteered. Calef's version is that he tentatively agreed to work

and said he would get back to Pennington.

On Friday, December 6, management decided to run a

particular production machine, thinking there was a danger of not

meeting production quotas. At approximately 5:55 p.m., shortly

before a meal break was scheduled to begin, Sciarini informed

Pennington that the "Good News Plus" production machines would have

to be run during the meal break. Pennington had short notice to

find operators and mechanics who could run the machines during the

break. Pennington attempted to find Calef in order to request that

he delay his meal break and stay on duty while the machines were

being run. However, Pennington was unable to locate Calef, so he

arranged for another mechanic, along with some machine operators,

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to oversee the operation of the Good News Plus machines during the

break.

Calef was "disgusted" that his machines had been run

during the meal break. When he returned from the break, he "went

to Frank Sciarini's office and asked why [his] machines were being

run." Pennington and Sciarini both state that Calef was upset and,

despite being told why the machines had to be run during the break,

Calef declared, "You know what you did to me."

Approximately two hours before the end of Calef's shift

on that same Friday night, December 6, Calef approached Pennington

and informed him that he would not work the shift on the following

Sunday, December 8. Pennington had already scheduled Calef to work

it. Calef says Pennington became angry and yelled at him that he

had to work on Sunday. Calef then walked away from Pennington, who

was asking for an explanation of why Calef would not work the

Sunday shift. Calef says Pennington was angry and yelling at him,

"That's it for you. We are going to get rid of you." Pennington

says Calef angrily told him "you know what you did to me," which

Pennington interpreted to be a reference to the decision to run the

Good News Plus machines during Calef's meal break. Pennington

continued to ask for an explanation, but Calef would not explain

himself. Instead, he repeated, "You guys know what you did to me,"

and walked away. To Pennington, Calef seemed irrational and

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increasingly erratic. Because of Calef's actions, Pennington

feared for his own safety.

The two men separated. Pennington left Calef and

reported the incident to Sciarini, his supervisor. Pennington told

Sciarini what had happened and reported that he was afraid of

Calef, that Calef was acting erratically and that Pennington could

not work with him. Sciarini's notes of the incident, which he

drafted the following day, state: "On Fri. Dec. 6, 1996, at 9:30

p.m., Steve Pennington my Group Leader came to my office telling me

that he cannot work with Fred Calef. I am afraid of him, he is

acting crazy."

Sciarini asked Calef to report to him, which Calef did.

The two then went to a nearby office, where Sciarini asked Calef

for an explanation of what happened on the production floor and

what he had said to Pennington. Sciarini says he asked Calef if he

was still receiving counseling and taking medication and that Calef

replied that, while he was still in counseling, the only medication

he was taking was blood pressure pills. Calef says he was asked

what drugs he was on and replied that he was taking only his blood

pressure medication.

Calef says Sciarini was screaming at him, lunging over

his desk at him, and telling him he was going to work on Sunday.

Sciarini, for his part, observed that Calef was "barely coherent."

When Sciarini tried to tell him that it was wrong to walk away from

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a group leader, Calef repeatedly interrupted him, raised his voice

and talked nonsensically. Calef was making statements such as "you

never tell me anything," and was talking about how his wife was mad

at him. Sciarini was very uncomfortable with Calef's behavior and

he, too, began to fear for his safety. In his summary of the

incident, Sciarini wrote that Calef's "behavior was out of control"

at this point.

Sciarini believed that Calef's behavior might be

explained by his being under the influence of illegal drugs. He

requested Calef accompany him to the Medical Department, which

Calef did. When Calef and Sciarini arrived, Ross, the nurse who

was friendly with Calef, was on duty. Sciarini took Ross aside,

explained what had happened, and requested a drug test.3 Calef

repeatedly insisted that the problem was not with him, but with his

supervisors -- Sciarini and Pennington -- and that they, not he,

should be required to take drug tests. Calef admits this and that

he was speaking loudly.4

3
In a Drug Test Request that Sciarini signed and
Gillette's Manager of Health Services approved, Sciarini checked
Calef's "unusual behavior" as the reason for requiring the test.
He wrote that the behavior involved "acting funny and snaping [sic]
back at my group leader and repeating we tell [him] nothing what's
going on the floor." Sciarini also wrote that "my group leader is
afraid to work with Fred."
4
Sciarini's notes of the incident, written the day after
the incident, reflect that:

Fred said that Steve [Pennington] and I should take test
also. The nurse [tried] to explain to him if you don't

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 A few minutes later Kristin Flanagan, a registered nurse

scheduled to work the shift after Ross, arrived for duty. Flanagan

is a veteran of the U.S. Air Force and served on active duty in the

Persian Gulf during the Persian Gulf War. Even so, Ross did not

feel comfortable leaving Flanagan as the only nurse on duty while

Calef was in his agitated state.

Ross called for a security guard to come to the medical

department and Gillette security member Tom Lonergan came to the

area. Flanagan called the Manager of Gillette's Health Services,

Joan Pemberton, at her home, explained the situation, and requested

Pemberton's approval for a drug test.5 Pemberton specifically

recalls Flanagan saying that Calef scared her. Ross, who knew

Calef, also feared for her safety at the time, and she was

frightened by Calef's agitated and threatening manner. Calef

appeared to her to be extremely irrational, belligerent, and

sarcastic. Ross also said that Calef was extremely uncooperative,

provocative, hostile, and threatening.

take the drug test, the consequences could result in loss
of his job. Again my opinion his behavior was out of
line. He was being very irrational and insisting that
Steve and I should take a drug test and then proceeded to
tell nurse that I drink 2 beers a day. He was rambling
and incompetent at that time.

5
In filling out the necessary chain of custody forms for
the drug test specimen, Flanagan noted that there was "Reasonable
susp./cause" for the drug test.

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 Sciarini, Ross, and Flanagan explained to Calef that,

pursuant to company policy, he was required to take the drug test.

Calef eventually agreed to do so, but only after altering his

consent form to read: "Requested Group Leader Steve Pennington to

take same test." Flanagan administered the test, which later

proved to be negative for illegal drugs.

Sciarini informed Calef that, because of his behavior, he

was not to report to work over the weekend, and that he was to call

Pemberton after 6:00 a.m. on the following Monday. Pursuant to

Gillette policy, the medical staff could not let Calef drive

himself home after taking the drug test. Flanagan and Ross wrote

a contemporaneous report of the incident, which reflects that:

[Calef] was requested to call his wife or friend to drive
him home per policy. Calef said 'the package store is
closing soon and all I want to do is drive home and stop
at a bar for a drink.'

Calef eventually called his wife, who picked him up.

In a summary of the incident that Sciarini drafted the

following day, he wrote:

Later on Steve [Pennington] and I talked about the
situation about Calef, Steve said that he did not yell at
him. Both Steve and I feel uncomfortable working with
[Calef] and for the safety of all the people working here
has to be formost [sic] the greatest concern.

On the Monday following the incident, December 9, 1996,

Pemberton had separate conversations with Flanagan and Ross to

discuss the events involving Calef. The nurses told her their

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recollections of the evening and, based on those conversations and

her review of the nurses' written summary of the incident,

Pemberton concluded that Calef's behavior had been completely

inappropriate.

Also on Monday, Sciarini reported the events to manager

Joseph Donovan. Donovan also received reports from Pemberton and

the supervisors involved. Consistent with Gillette's regular

business practice, Donovan then drafted an Employee Contact Report

dated December 19, 1996. The report summarized the basis for his

decision to terminate the plaintiff's employment, which was then

reviewed and approved by his supervisor, Division Head John Farren.

It is undisputed that Donovan made the decision to discharge Calef

and that his stated reason for discharging the Plaintiff is set

forth in the Contact Report. That report refers to Calef's

disciplinary history, and describes the December 6 incident. The

report says Calef's employment was being terminated because his

behavior on that night was unacceptable; that it included

insubordination and lack of cooperation with his supervisors when

he refused a scheduled shift; and that Calef engaged in irrational

behavior.

The report provided a synopsis of Donovan's investigation

of the incident. Donovan reported on the discussion between

himself and Sciarini as follows:

Frank [Sciarini] felt Fred was out of control and that
his facial expressions were irrational. Frank told me

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 (J. Donovan) that he felt uncomfortable working with Fred
because of his behavior and was concerned about the
safety of his people.

Donovan attempted to contact Calef by telephone in order

to inform him of his decision. When he was unable to reach Calef,

he requested that the company's personnel department send Calef a

telegram, informing him of his employment termination. Western

Union called Calef, who answered his phone, but refused to take the

message. Accordingly, Gillette sent a copy of the termination

message in the mail.

Gillette's Change In Status Form reflecting Calef's

termination from employment states that the "specific reason for

[his] termination" was "unacceptable behavior." In his Equal

Employment Opportunity Commission (EEOC) charge, Calef stated that

he was told by Donovan and Sciarini he was being fired for

irrational behavior.

Calef says that he was disoriented, unfocused, and

indecisive during these events of December 6. He says he was not

screaming but did speak up "a little more than calmly, with a

slightly raised voice." He admits he offended the nurses and that

he was "real upset" and angry. He attributes all of this to his

ADHD. He says under stress his ADHD symptoms of loss of coherent

speech and thinking increased. Calef's basic position on the

December 6 incident is that his behavior was caused by ADHD and

that the reactions the Gillette employees had to him were

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unreasonable and motivated by biases against people with

disabilities.

After the incident he spoke to medical department

personnel to apologize and asked them to speak to Donovan about his

ADHD. A nurse later reported that she had done so, but Donovan's

mind was made up. Calef also called Sciarini to apologize.

In his post-Gillette employment, Calef went to work as a

mechanic with the Coca-Cola Company in a job he described as being

similar to the one he had held at Gillette. He did not ever inform

Coca-Cola that he had ADHD. Indeed, Calef held a series of

positions (many of which did not work out for reasons other than

ADHD) which required him to learn particular job skills. On one

job evaluation Calef was said to be "[w]illing to learn and capable

of doing so." He has been employed at Sears since April 2001, has

never asked for an accommodation because of his ADHD, and testified

that he learned needed skills for the job through a three-week, on-

the-job training program.

II.

Taking all inferences in his favor, Calef has failed to

meet his burden of creating a triable issue that he was disabled

under the terms of the ADA. A disability is an "impairment that

substantially limits one or more of the major life activities." 42

U.S.C. § 12102(2). Calef has not shown such an impairment. Nor

has he shown, as he must, that he was qualified to perform the

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essential functions of his job, either with or without reasonable

accommodation. See id. at § 12111(8).

A. Substantially Limited in a Major Life Activity

Calef's argument that he was substantially limited in a

major life activity rests, at its core, on evidence from Dr. Soma,

his treating psychologist. Dr. Soma's affidavit correctly

recognized that the relevant disability determination turns not on

the symptoms of untreated ADHD, but on Calef's ADHD when he

received medication and counseling. See Sutton v. United Air

Lines, Inc., 527 U.S. 471, 483-84 (1999). As to that, she opined,

"At the time I treated him [in the mid-1990s], Calef was still

substantially limited in the major life activities of learning and

speaking (the latter more severe under high stress) notwithstanding

his use of Ritalin." Nonetheless, the Supreme Court has recently

required more analysis than a doctor's conclusory opinion:

It is insufficient for individuals attempting to prove
disability status under this test to merely submit
evidence of a medical diagnosis of an impairment.
Instead, the ADA requires [that claimants offer] evidence
that the extent of the limitation caused by their
impairment in terms of their own experience is
substantial.

Toyota Motor Mfg., Inc. v. Williams, 534 U.S. 184, 198 (2002)

(internal quotations and citations omitted).

It is this latter test, required by Toyota, which Calef

fails. Calef claims he is substantially limited in learning and

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speaking.6 We start with the easier of the claimed limitations:

a limitation in learning. On this record, no factfinder could

rationally find such a substantial limitation on learning exists.

The medical testing evidence does not support this claim. A 1998

psychometric assessment of Calef concluded:

scores of standard intelligence tests confirm clinical
impressions, placing Calef's overall learning ability
within the average range. No important discrepancy is
seen between verbal and non-verbal abilities.

standard scholastic achievement tests show Calef's
academic skills to be within the normal range for a man
of his general abilities and educational level.

Calef relies on the fact that he scored "significantly

below average" in a test designed to measure his resistance to

distraction as tasks become increasingly more complex; he scored

"significantly below the mean" on a test designed to measure his

memory of complex visual organization and planning; he scored below

the 25th percentile when asked to recall "a spatial task involving

complex visual organization and planning"; he scored in the 16th

percentile in "awareness of visual detail in the environment and

visual sequencing ability"; he scored in the 2nd percentile "on a

psychomotor task involving the rapid copying of figures associated

with numbers"; and he scored in the 9th percentile "on a subtest

requiring the solving of oral arithmetic problems." These factors

6
Plaintiff's earlier claims that he was substantially
limited in other major life activities have been abandoned on
appeal.

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were taken into account in the conclusion that, overall, Calef's

learning ability was in the average range. Further, a neurologist

he consulted in 2000 reported that Calef said that Ritalin was

"very effective in terms of his ability to concentrate, read, etc."

but that Calef had stopped taking it because he thought it made him

depressed.

More importantly, his life experience shows no

substantial limitation on learning as required by Toyota. Calef

has a high school GED, has taken other courses, and has received

on-the-job training where he learned new job skills. His history

both before and after Gillette shows no limitation in his learning

ability. These facts doom the claim. See Bercovitch v. Baldwin

Sch., 133 F.3d 141, 155-56 (1st Cir. 1998).

Calef's other asserted substantial limitation, in his

speaking, fares no better. Both the medical assessment evidence

and the evidence of his life experience render this claim

meritless. A medical assessment conducted at the behest of Calef's

own physicians reported that Calef "is attentive in conversation .

. . . Language is normal." Indeed, a comprehensive neurological

assessment conducted by Peter Rosenberger, M.D., the Director of

the Learning Disorders Unit at Massachusetts General Hospital,

concluded that Calef's verbal abilities were within average range,

including his verbal productivity, articulation, fluency, grammar

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and syntax, and vocabulary. Psychometric testing performed by Dr.

Rosenberger's clinic further concluded:

Statistical analysis indicates that [Calef's] verbal
comprehension abilities fall within the average range
(53rd %ile Index Score = 101) . . . . Vocabulary
development and general fund of information fall at the
mean (50th %ile).

There is no medical evidence to contradict these conclusions.

There was no evidence that Calef could not perform the

variety of speaking tasks central to most people's lives, outside

the workplace as well as within. See Toyota, 534 U.S. at 200-01.

His job required him to speak with customers, supervisors, and

others, and he did so satisfactorily. None of his performance

evaluations note any difficulty in speaking. Further, to the

extent ADHD was an impairment, a court is required to take into

account the plaintiff's "ability to compensate for the impairment."

Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 565 (1999). Here,

Calef compensated through Ritalin and counseling. His own

testimony was that in 1996 Ritalin helped control most of the

effects of ADHD while he was working: "Most all of it. I can't

think of any that it didn't." Nor is there any evidence of

difficulty in speaking in Calef's everyday life.

At most, Calef's evidence was that, despite taking

Ritalin, he still had some difficulty in concentrating at work and

would blurt out or interrupt people in conversation. There is no

evidence at all that he was substantially limited in speaking

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outside of work. This is not enough to show a speaking disability

under the ADA.

To support his claim, Calef focuses on regulations

promulgated by the EEOC. See 29 CFR § 1630.2(j)(1) (2002).7 Like

the Supreme Court in Toyota, we do not pass on the validity of

these regulations. Even if they are valid, his claim fails. The

regulations must be read in light of "the fundamental statutory

requirement that only impairments causing 'substantial limitations'

in individuals' ability to perform major life activities constitute

disabilities." Albertson's, 527 U.S. at 565. Even under the EEOC

regulations, Calef has not created a triable issue of fact that he

is, as the regulations would require, "significantly restricted" as

to the "condition, manner or duration" under which he either learns

or speaks as compared to the average person in the population. A

significant restriction does not mean a "mere difference." Id.

There is no evidence that Calef could not learn or speak during the

activities of everyday life. At most there was evidence that

sometimes -- but not always or even predominantly -- Calef found it

7
That regulation reads:

(1) The term substantially limits means:
(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 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.

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difficult to handle stress. Indeed, there were undoubtedly times

of stress in the fifteen months between September 15, 1995, when he

was diagnosed, and December 6, 1996. But there was only one

instance of uncontrolled anger reflected in the record, and that

was on December 6.

Even Dr. Soma stated that while ADHD is a lifelong

condition, it "may involve episodic incapacity during periods of

high stress." As to the duration and frequency of episodes of

incapacity, Dr. Soma said, "Incapacity will occur infrequently and

is likely to involve periods of short duration." This statement,

made in a March 1996 certificate, referred to Calef's ADHD and was

part of his request for short leaves of absence -- a request

Gillette granted. Calef's post-Gillette work history also

evidences the episodic and infrequent nature of any incapacity.

Calef's evidence is totally unlike the evidence presented by

plaintiff in Gillen v. Fallon Ambulance Service, Inc., 283 F.3d 11

(1st Cir. 2002), where we found a triable issue of disability by a

one-armed ambulance attendant who had significant difficulty

lifting objects. Calef, in contrast, fails the test for

significant restriction as to the condition, manner, and duration

for either learning or speaking.

In the end, Calef's argument devolves into a claim that

ADHD makes it more difficult for him to respond to stressful

situations, that when he becomes angry, he sometimes loses control

-22-
and can neither speak nor think well, and that this constituted a

substantial limitation on a major life activity. It is clear,

though, as Dr. Soma's affidavit indicates, that the ADHD does not

cause him to become angry. The issue is how he handles his

resulting stress during the episodes in which he becomes angry.

This claim would not, under Toyota, qualify as a substantial

limitation on a major life activity. Very few people find handling

stress to be easy. Many people do not think well in stressful

situations and find it harder to speak well. There was no evidence

in this record that plaintiff could not perform some usual activity

compared with the general population, or that he had a continuing

inability to handle stress at all times, rather than only

episodically. Under our caselaw, these shortcomings in the

evidence are fatal. See Santiago Clemente v. Executive Airlines,

Inc., 213 F.3d 25, 31-32 (1st Cir. 2000) (even assuming ear

impairment was a potential long-term condition, there was no

evidence that it had a severe impact on plaintiff's functional

ability to hear); Soileau v. Guilford, 105 F.3d 12, 15-16 (1st Cir.

1997) (plaintiff's inability to get along with others is not a

substantial limitation).

On different facts, ADHD might disable an individual such

that the ADA applies. Calef, however, has not made the

individualized showing about his particular limitations that Toyota

requires. Merely pointing to a diagnosis of ADHD is inadequate.

-23-
B. Qualified Individual

Even if Calef were arguably disabled, he is not otherwise

a "qualified" employee because, with or without accommodation, he

could not perform an essential function of the job.8 See 42 U.S.C.

§§ 12111(8), 12112(a). Plaintiff bears the burden of showing he is

qualified. Laurin v. Providence Hosp., 150 F.3d 52, 56 (1st Cir.

1998).

An employer may base a decision that the employee cannot

perform an essential function on an employee's actual limitations,

even when those limitations result from a disability. Leary v.

Dalton, 58 F.3d 748, 753-54 (1st Cir. 1995) (under Rehabilitation

Act, employee with excessive absences related to claimed disability

was not qualified individual); see also Mole v. Buckhorn Rubber

Prods., 165 F.3d 1212, 1217 (8th Cir. 1999) (plaintiff whose work

had deteriorated as a result of claimed disability and resulting

depression was not otherwise qualified). The statute requires that

consideration "be given to the employer's judgment as to what

functions of a job are essential." 42 U.S.C. § 12111(8). It is an

8
An employer has no duty to modify an essential function
of a job. If the plaintiff, with or without reasonable
accommodation, cannot perform an essential function of the job,
then he is not a qualified individual and there is no duty to
accommodate. The essential function analysis is "conceptually
distinct from, though it frequently overlaps with, the undue
hardship defense." 1 H.H. Perritt, Jr., Americans With
Disabilities Act Handbook, § 4.19 at 126 (3d ed. 1997). The
inquiry into essential functions is not intended to second-guess an
employer's business judgment regarding production standards.

-24-
essential function of a job that a production manager be able to

handle stressful situations (here, requests for overtime work and

routine disagreements) without making others in the workplace feel

threatened for their own safety. This function is both job-related

and consistent with business necessity.

Gillette has consistently disciplined employees who

engage in such behavior and who are unable to handle this essential

function. Before Calef knew he suffered from ADHD, Gillette

applied those standards to him.9 In 1993 he was warned about his

confrontations with co-workers. In 1995 he was warned his

employment would be terminated the next time he threatened an

employee. Gillette has also terminated the employment of others

who display similar behavior.10

Put simply, the ADA does not require that an employee

whose unacceptable behavior threatens the safety of others be

retained, even if the behavior stems from a mental disability.

9
As to Calef's argument that this is a "perceived to be
disabled" case, there is not a whiff of proof that the fears of the
nurses and supervisor were motivated by stereotypes about the
disabled. Even on plaintiff's version of the facts of that night,
the reported reactions of the supervisors and nurses were entirely
reasonable, and there is no evidence they were not genuine.

10
Calef mistakes the role of the "direct threat" defense,
which is separate from the question of whether he is otherwise
qualified. In EEOC v. Amego, Inc., 110 F.3d 135, 144 (1st Cir.
1997), this court rejected the argument that a court could never
consider threat to others as part of the otherwise qualified
analysis, but was required to view it only under the direct threat
defense.

-25-
Such an employee is not qualified.11 That was the point of our

decision in EEOC v. Amego, Inc., 110 F.3d 135 (1st Cir. 1997). It

is also the view of every other circuit case which has addressed a

similar situation under the ADA or the Rehabilitation Act. See

Palmer v. Circuit Court, 117 F.3d 351 (7th Cir. 1997); Johnson v.

N.Y. Hosp., 96 F.3d 33 (2d Cir. 1996) (per curiam); Williams v.

Widnall, 79 F.3d 1003 (10th Cir. 1996); Crawford v. Runyon, 79 F.3d

743 (8th Cir. 1996); see also Bercovitch, 133 F.3d at 154-55

(plaintiff who cannot meet school disciplinary requirements is not

otherwise qualified); Adams v. Alderson, 723 F. Supp. 1531, 1532

(D.D.C. 1989), aff'd 1990 WL 45737 (D.C. Cir. 1990) ("One who is

unable to refrain from doing physical violence to the person of a

supervisor, no matter how unfair he believes the supervision to be

or how provocative its manner, is simply not otherwise qualified

for employment."); cf. Reed v. LePage Bakeries, Inc., 244 F.3d 254,

11
It is questionable whether the reasonable accommodation
analysis plays any role in such a case. See Palmer v. Circuit
Court, 117 F.3d 351, 353 (7th Cir. 1997). Calef never renewed his
request to be moved to different machines. Further, he was given
medical clearance to return to work without restriction in July.
Finally, there is no evidence at all connecting the denial of that
request, some nine months before, with the events of December 6.
Even if reasonable accommodations were pertinent, there
was no reasonable accommodation which would have enabled him to
perform the essential functions of his job. His uncontrollable
anger was episodic and unpredictable. As the district court held,
"These short leaves [are] not going to alleviate the threatening
and abusive behavior because the stress arises out of the job."
Gillette had tried to accommodate Calef -- it had given him time
off and reduced his work schedule when requested. That did not
prevent his behavior on December 6.

-26-
262 (1st Cir. 2001) ("The ADA is not a license for insubordination

in the workplace.").

C. Sunday Closing Law

We have reviewed the evidence and the law on Calef's

pendent claim that a termination for failure to work on Sunday

violated public policy; we find the claim is without merit. There

is no violation of public policy. Mass. Gen. Laws ch. 136 § 7

(2002) allows companies to be open for work on Sunday provided a

permit is obtained. Gillette had obtained the permit. Calef is

not free to make a violation of public policy argument simply

because he disagrees with the grant of the permit.

D. Conclusion

We affirm the entry of summary judgment for Gillette

dismissing all claims. Costs are awarded to Gillette.

*Dissent follows*

-27-
 BOWNES, Senior Circuit Judge (concurring in part,

dissenting in part). I concur with Part II(C) of the majority's

opinion regarding Calef's state law claim. I write separately,

however, because I disagree with the majority's analysis of the

Americans with Disabilities Act ("ADA"). I must acknowledge that

Fred Calef is not the most sympathetic ADA plaintiff. As the

majority points out, he threatened to hit a 60 year old woman and

scared a Gulf War veteran. This court, nevertheless, has a duty to

remain faithful to our precedent and the relevant laws applicable

to this case. We should take extra care not do more harm than good

where the plaintiff is not a nice person. We must make sure that

our opinion does not create bad precedent from which all future

plaintiffs will suffer. I am concerned that is what is happening

here. I must therefore respectfully dissent.

At the heart of my concern is that the majority does not

adequately address the relevant Equal Employment Opportunity

Commission ("EEOC") regulations. Until now, every case in this

circuit that has revolved around the issue of whether a plaintiff

was "substantially limited" in a major life activity has used the

EEOC regulations for guidance. At times, the majority misapplies

the EEOC regulations. At others, the majority does not use them at

all. I believe we should follow our past practice of using the

EEOC regulations for guidance and apply them to this case.

-28-
 I also dissent because the majority's analysis places

emphasis on facts that are entirely irrelevant under our case law.

Those facts involve the subjective fear felt by the Gillette nurses

and Calef's immediate supervisor. Their fear is a theme that runs

throughout the majority's opinion. It is mentioned in the very

first sentence of the opinion, and then again at least eight times

in the majority's fact section alone. Unfortunately, the majority

treats fear as more than just a theme. The majority, incorrectly

in my view, incorporates fear directly into its analysis of whether

a person is "otherwise qualified." To make matters worse, the

majority's "otherwise qualified" analysis is complete dicta.

Having found that Calef was not disabled under the ADA, there is

simply no reason for the majority to expound on whether he was

"otherwise qualified." Because I do not consider it wise to make

unnecessary pronouncements on the law, and because I believe the

substance of the majority's "otherwise qualified" analysis is

incorrect, I must dissent.

Lastly, I dissent because the majority opinion is not

faithful to the summary judgment standard. Under that standard, we

are to examine the facts in the light most favorable to the

nonmovant, Calef, drawing all reasonable inferences and resolving

all factual conflicts in his favor. See Conward v. Cambridge Sch.

Comm., 171 F.3d 12, 18 (1st Cir. 1999). A motion for summary

judgment should only be granted if "the evidence, viewed from the

-29-
perspective most favorable to the non-movant, is so one-sided that

the movant is plainly entitled to judgment, for reasonable minds

could not differ as to the outcome." FHS Props. Ltd. P'ship v. BC

Assocs., 175 F.3d 81, 85 (1st Cir.1999) (citation omitted). In its

description of the facts, the majority fails to cite certain

material evidence that is beneficial to Calef. Based upon these

omissions, as well as those facts which are discussed, it is my

view that reasonable minds could differ as to the outcome of this

case. The majority's claim that reasonable minds could not differ

is undermined by the fact that the district court judge in the

proceedings below ruled that Calef was disabled.

I. BACKGROUND

A. Facts

Much of the evidence that the majority fails to take into

account relates to the events leading up to and during December 6,

1996. In mid-1996, Calef was assigned to work on new computerized

machines in a high traffic area of Gillette's production facility.

Calef was upset by the new assignment and told one of his

supervisors, Frank Sciarini ("Sciarini"), that he could become sick

because of the stress of working on the new machines. Calef also

spoke with his psychologist Dr. Janis Soma ("Dr. Soma") about the

problem. On May 24, 1996, Dr. Soma wrote a note to Gillette's

medical department requesting that Calef be re-assigned to machines

he had previously worked on. Dr. Soma also advised Gillette that

-30-
Calef was at serious risk for significant health problems and that

maintaining a familiar work environment would be helpful. Calef

took the note to work and showed it to a nurse in the medical

department. Calef also showed the note to Sciarini. Sciarini read

the note and Calef told Sciarini that he had ADHD, but Sciarini

refused to reassign him. Calef also took the note to Sciarini's

supervisor, Joe Donovan ("Donovan"), who was the Gillette manager

that ultimately decided to terminate Calef's employment. Donovan

read the note and Calef told Donovan that he had ADHD, but Donovan

also refused to reassign him.

On December 5, 1996, Calef's supervisor Steve Pennington

("Pennington") asked for volunteers to work the coming Sunday.

Calef expressed an interest in working, but did not make a firm

commitment. On December 6, 1996, Calef had a disagreement with his

supervisors about a machine on which Calef had worked. After the

disagreement ended, Calef informed Pennington that he would not

work on Sunday. Calef said that he had already worked the two

previous weekends and could not find a babysitter for his children.

An argument promptly erupted, with Pennington yelling at Calef for

refusing to work on Sunday.

Pennington reported to his immediate supervisor,

Sciarini, that Calef was "acting strange again like he was not

taking his medication again." Sciarini took Calef into an office

and yelled at him for refusing to work on Sunday. Sciarini

-31-
believed that Calef's behavior "was out of control and his facial

expressions were irrational." Sciarini asked Calef "if he was

still under counseling and taking his medication." Sciarini also

suspected that Calef might be using illegal drugs and demanded that

Calef report to the company nurse and submit to a blood test.

Calef went to the nurse's office, but refused to take the blood

test. At the nurses office, Sciarini described Calef as "rambling

and incompetent." Calef admits that he was incoherent and could

not follow instructions. The two nurses on duty said Calef had

difficulty following instructions, paced back and forth, and kept

repeating the same questions. One nurse said that Calef's

concentration was so poor that they had to explain certain policies

to him a total of five times. The nurses also had to repeatedly

instruct Calef how to fill out simple paperwork, including signing

his own initials. One nurse described the situation as follows:

Mr. Calef was unable to focus his thoughts and became
more and more agitated. Mr. Calef's face was red, he was
speaking quickly and in a raised voice, and he kept
saying that the problem was not with him, but with his
supervisors, Mr. Sciarini and Steve Pennington.

At no time did Calef become violent or threaten anyone

with violence. Calef eventually agreed to take the blood test when

a nurse explained that he could be fired if he continued to refuse.

After taking the blood test, Calef was sent home, placed on medical

leave, and instructed to remain at home until the results of the

blood test were known. Although the blood test results came back

-32-
negative for illegal drugs, Gillette sent Calef a telegram on

December 13, 1996, stating that his employment had been terminated

for "refusal to work scheduled overtime and failure to cooperate

with your group leader and supervisor."

In December, 1997, Dr. Soma referred Calef to the

Massachusetts General Hospital Learning Disorders Unit to undergo

a battery of psychometric tests. On the day of the tests, Calef

had taken Ritalin for his ADHD. The tests consisted of several

subtests designed to measure his intelligence, attention, auditory

and visual functions, and his academic abilities. Calef scored

within the average range on some of the subtests, but scored far

below the average on others, including subtests designed to measure

his resistence to distraction, awareness of visual detail, and

verbal abilities. The Learning Disorders Unit concluded from the

tests that "attention deficit is an important cognitive handicap

for this otherwise normally intelligent gentleman."

There are other facts that the majority fails to discuss

and these will be addressed below at the appropriate time.

B. Procedural History

The majority also does not discuss the procedural history

of this case or the district court's rulings below. Calef's

complaint in the district court alleged that Gillette failed to

reasonably accommodate his ADHD and that Gillette terminated his

employment because of his disability in violation of the ADA.

-33-
Calef claimed he was disabled because ADHD substantially limited

the major life activities of learning and speaking, including

communicating, thinking and concentrating, and that his ADHD

worsened under stress.

The district court, in a ruling issued from the bench,

granted Gillette's motion for summary judgment. The district court

found Calef to be disabled within the meaning of the ADA as to the

major life activity of "speaking while under stress."

Nevertheless, the district court determined that summary judgment

was proper because there was no evidence that Gillette knew of

Calef's disability, no evidence that Calef sought a reasonable

accommodation for his disability, and no evidence of discriminatory

animus on the part of Gillette. The district court further held

that Calef's disability arose from the stress of his job, which

therefore made him not "otherwise qualified" as required by the

ADA.

II. THE MAJORITY'S MISAPPLICATION OF
THE EEOC REGULATIONS

The ADA prohibits an employer from discriminating against

a qualified individual because of that person's disability. 42

U.S.C. § 12112(a). To survive on summary judgement, Calef must

produce enough evidence from which a reasonable jury could conclude

that he was disabled within the meaning of the ADA, that with or

without reasonable accommodation he was able to perform the

essential functions of the job, and that Gillette terminated his

-34-
employment, in whole or in part, because of his disability. See

Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir. 2002); Criado

v. IBM Corp., 145 F.3d 437, 441 (1st Cir. 1998). The ADA defines

the term "disability" as "a physical or mental impairment that

substantially limits one or more of the major life activities of

such individual." 42 U.S.C. § 12102(2)(A). I respectfully

disagree with the majority's analysis of whether Calef is

"substantially limited" in a major life activity.12 First, I

believe the majority misreads the relevant EEOC regulations, which

this court has repeatedly used for guidance in determining if an

individual is "substantially limited."

The EEOC regulations interpreting the ADA define

"substantially limited" to mean either: "(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

12
A "major life activity" is an activity that is of
central importance to most people's daily lives. Toyota Motor
Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002). Calef
contends that his ADHD affects the major life activities of
learning and speaking, including communicating, thinking and
concentrating. In the past, this court has treated
communicating, thinking and concentrating as being subsumed by
the broader activities of learning and speaking. See Whitney
v. Greenberg, Rosenblatt, Kull & Bitsoli, P.C., 258 F.3d 30,
33 n.4 (1st Cir. 2001). There is no question that learning
and speaking are major life activities of central importance
to most people's daily lives. See Whitney, 258 F.3d at 33
(learning); Santiago Clemente v. Executive Airlines, Inc., 213
F.3d 25, 30 (1st Cir. 2000) (speaking); Bercovitch v. Baldwin
Sch., Inc., 133 F.3d 141, 155 (1st Cir. 1998) (learning); 29
C.F.R. § 1630.2(i).

-35-
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." 29 C.F.R.

§ 1630.2(j)(1) (emphasis added). With respect, I believe the

majority misconstrues the differences between these two prongs and

thereby sows confusion for future litigants.

The majority contends that Calef is not substantially

limited in speaking or learning. As far as speaking is concerned,

the majority says that Calef's psychometric tests show he possesses

the verbal abilities of an average person. The majority also

points to Calef's own deposition testimony that he successfully

speaks face-to-face, as well as over the telephone, with customers

and supervisors as part of his new job repairing household

appliances. As for learning, the majority highlights the

undisputed fact that Calef obtained his General Equivalency

Diploma, took other courses, and received on-the-job training. Put

simply, the majority's argument is that Calef can learn and speak,

and therefore cannot be considered "substantially limited" for

purposes of the ADA.

I agree with the majority that the record is replete with

evidence that Calef can actually speak, and can actually learn. I

therefore agree that Calef does not meet the first prong of the

EEOC regulations. See 29 C.F.R. § 1630.2(j)(1)(i). This brings me

-36-
to the second prong of the regulations. The majority says that

Calef does not meet the second prong because "[t]here is no

evidence that Calef could not learn or speak during the activities

of everyday life." I respectfully submit that this reasoning is

illogical. In essence, the majority is saying that Calef does not

meet the second prong of the EEOC guidelines because he does not

meet the first. Under the majority's view, the analysis should be

confined only to what Calef can and cannot do. This necessarily

means ignoring the second prong of the EEOC regulations, which

recognizes that a person who accomplishes major life activities can

nevertheless be "substantially limited" if they are significantly

restricted as to the condition, manner or duration under which they

perform those major life activities, as compared to the average

person in the general population. See id. § 1630.2(j)(1)(ii).

The constricted analysis the majority adopts is

unsupported by Supreme Court precedent and inconsistent with our

prior opinions. The Supreme Court has stated that the ADA

"addresses substantial limitations on major life activities, not

utter inabilities," and that "[w]hen significant limitations result

from the impairment, the [disability] definition is met even if the

difficulties are not insurmountable." Bragdon v. Abbott, 524 U.S.

624, 641 (1998). This court has also recognized that an impairment

can "substantially limit" a person's major life activities, even

though it is possible for that person to actually engage in those

-37-
activities. See Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d

11, 22 (1st Cir. 2002).

In Gillen, a woman with an amputated arm wanted to be an

emergency medical technician ("EMT"), but the defendant-employer

would not hire her because it claimed she could not lift a certain

amount of weight. 283 F.3d at 19. The woman then obtained a

different EMT job with another employer, and in doing so,

demonstrated her ability to lift the amount of weight that the

defendant originally claimed she could not lift. In a suit by the

woman against the first employer, the district court found that the

woman was not disabled under the ADA because by demonstrating that

she could lift the required amount of weight, she had shown that

she was not "substantially limited" in a major life activity. We

disagreed, and held that the woman's amputated arm represented a

substantial limitation on her ability to lift, "notwithstanding her

extraordinary efforts to compensate for her impairment." Id. at

23. We explained that "[t]he key question is not whether a

handicapped person accomplishes her goals, but whether she

encounters significant handicap-related obstacles in doing so."

Id. at 22.

The majority's analysis of the EEOC guidelines is flawed

for another reason. To decide whether a plaintiff is

"substantially limited," be it under the first or second prong of

the EEOC regulations described above, the EEOC regulations state

-38-
that three factors should be considered. 29 C.F.R. § 1630.2(j)(2).

Those three factors are: the duration or expected duration of the

impairment; the nature and severity of the impairment; and the

long-term impact or expected long-term impact resulting from the

impairment.13 See id. Time-and-again we have used these three

factors as guidance to determine whether a plaintiff is

"substantially limited." See Gonzalez v. El Dia, Inc., 304 F.3d

63, 73 (1st Cir. 2002); Carroll, 294 F.3d at 239; Gillen, 283 F.3d

at 21; Navarro, 261 F.3d at 98; Whitney, 258 F.3d at 33; Santiago

Clemente, 213 F.3d at 30-31; Quint v. A.E. Staley Mfg. Co., 172

F.3d 1, 10 (1st Cir. 1999); Criado, 145 F.3d at 442; Soileau v.

Guilford of Me., Inc., 105 F.3d 12, 15 (1st Cir. 1997); Katz v.

City Metal Co., Inc., 87 F.3d 26, 31 (1st Cir. 1996). We have done

so because the regulations "constitute a body of experience and

informed judgment to which courts and litigants may properly resort

for guidance." Santiago Clemente, 213 F.3d at 30 n.2 (quoting

Bragdon, 524 U.S. at 642). The majority, however, does not cite or

discuss these three factors. Moreover, the majority does not

explain to future litigants why it chooses not to apply the three

factors, or what considerations take their place. In light of the

fact that neither Calef nor Gillette challenges the EEOC

13
The distinction between duration and long-term impact
is that duration refers to the length of time an impairment
persists, while long-term impact refers to the residual
effects of an impairment. See Navarro v. Pfizer Corp., 261
F.3d 90, 98 (1st Cir. 2001).

-39-
regulations, we should continue our well established practice of

relying on them for guidance.14

I close this portion of my dissent with one final

observation of the majority's "substantially limited" analysis.

The majority says that the Supreme Court's opinion in Toyota

requires that we examine Calef's speaking and learning both

"outside the workplace as well as within." This is a subtle but

profound expansion of Toyota's holding. In Toyota, the Supreme

Court stated:

When addressing the major life activity of performing
manual tasks, the central inquiry must be whether the
claimant is unable to perform the variety of tasks
central to most people's daily lives, not whether the
claimant is unable to perform the tasks associated with
her specific job.

534 U.S. at 200-01 (emphasis added). The Court went on to reject

the notion that "whether an impairment constitutes a disability is

to be answered only by analyzing the effect of the impairment in

the workplace." Id. at 201. It seems evident that these sentences

are the basis for the majority's conclusion that Calef's speaking

and learning must be examined outside the workplace as well as

within. But that conclusion does not fully consider the reasoning

14
In Toyota the Supreme Court questioned the persuasive
authority of the EEOC regulations, but declined to decide the
issue because, like the parties here, neither of the litigants
contested the matter. Since Toyota, we have continued to use
the EEOC regulations for guidance. See, e.g., Gonzalez, 304
F.3d at 73; Carroll, 294 F.3d at 239; Gillen, 283 F.3d at 21.

-40-
behind the Supreme Court's holding in Toyota. As the Court

explained, the "critical[]" reason behind its decision was that

"the manual tasks unique to any particular job are not necessarily

important parts of most people's lives." Id. In contrast, there

is no doubt that speaking and learning are central to most people's

daily lives. See Whitney, 258 F.3d at 33 (learning); Santiago

Clemente, 213 F.3d at 30 (speaking).

I respectfully submit that extending this portion of the

Court's holding in Toyota to other types of major life activities,

such as speaking and learning, is unwarranted. Doing so means that

people with learning disabilities will now be required to produce

evidence that shows their learning is impaired at work and at

outside of work. Failure to produce both types of evidence will

result in dismissal of their claim on summary judgment. This

onerous requirement conflicts with the recognition that a

plaintiff's evidence "need not necessarily be composed of

excruciating details as to how the plaintiff's capabilities have

been affected by the impairment." Gillen, 283 F.3d at 24 (citing

Albertson's, Inc. v. Kirkingburg, 527 U.S. at 555, 566 (1999)).

-41-
 III. THE MAJORITY'S MISAPPLICATION OF
THE FACTS TO THE LAW

This brings me to my concern regarding the majority's

description of the evidence in this case. The majority fails to

discuss certain relevant facts that are beneficial to Calef, which

is required at the summary judgment stage. See Conward, 171 F.3d

at 18. These omitted facts pertain mostly to Calef's behavior on

December 6, 1996, although there are others. Considering these

omitted facts through the prism of the three EEOC factors, it seems

clear to me that a reasonable jury could find that, despite taking

Ritalin and undergoing therapy, ADHD substantially limited the

condition, manner, or duration of Calef's learning and speaking.

Specifically, Calef has presented evidence that his impairment was

of significant duration, that his impairment was at times severe,

and that the impairment's impact was long-term.

Calef has presented evidence that his ADHD is an

impairment of significant duration. See 29 C.F.R. §

1630.2(j)(2)(ii). Calef testified that ADHD affected him when he

was young and made it difficult for him to do school work. In

addition, Dr. Soma stated in her affidavit that it was her opinion

that Calef's learning difficulties extended back to his time in

school. Even more significant is Calef's testimony that, in the

years following his employment at Gillette when he was not taking

Ritalin, his concentration was so poor that he could not read more

than one or two paragraphs without losing complete focus. My

-42-
conclusion regarding the duration of Calef's impairment comports

with our previous characterization of ADHD as "a permanent

disability." See Criado, 145 F.3d at 442.

Second, Calef produced evidence that his impairment, at

least at times, was severe. See 29 C.F.R. § 1630.2(j)(2)(i). The

set of statements by Calef's supervisors and the nurses describing

the December 6, 1996, incident demonstrate that Calef had

significant concentration problems. The two nurses reported that

Calef "was unable to follow simple directions." They claimed that

Calef "[r]epeatedly had to be redirected on what to do and why,"

even for matters as basic as signing his initials. In fact, the

nurses had to explain some procedures to Calef five times. Calef's

supervisors confirmed the nurses' observations, stating that

"Fred's behavior was erratic. He was unable to follow simple

commands and to focus his thoughts when questioned." Moreover, all

parties agree that Calef's speaking was incoherent, that he

rambled and repeated the same questions over again.

Lastly, Calef submitted evidence that the impact of his

impairment was long-term, even when taking Ritalin. See 29 C.F.R.

§ 1630.2(j)(2)(iii). Calef testified that, despite taking Ritalin,

he had difficulty concentrating on repairing machinery at work, had

difficulty reading the company bulletin board, and would blurt out

or interrupt people during conversations. These difficulties

occurred before the incident on December 6, 1996. In addition, the

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psychometric tests, which were administered almost a year after

Gillette terminated Calef's employment, and conducted on a day that

Calef had taken Ritalin, indicate that the impairment's impact was

long-term. The test results show that Calef scored within the

average range on some subtests, but far below the average on

others. His below average performances involved subtests designed

to measure his attention, concentration and verbal abilities.15 As

a result, a doctor at Massachusetts General Hospital concluded that

"these test scores confirm the clinical impression that attention

deficit is an important cognitive handicap for this otherwise

normally intelligent gentleman."

It is important to recognize that this case is

distinguishable from others in which we have found insufficient

evidence of a disability; largely because Calef has presented

evidence pertaining to all three of the factors we use to guide our

analysis of whether a plaintiff is "substantially limited." Cf.

15
For example, Calef scored "significantly below
average" in a test designed to measure his resistence to
distraction as tasks became increasingly more complex; he
scored "significantly below the mean" on a test designed to
measure his memory of complex visual organization and
planning; he scored below the 25th percentile when asked to
recall "a spatial task involving complex visual organization
and planning"; he scored in the 16th percentile in "awareness
of visual detail in the environment and visual sequencing
ability"; he scored in the 2nd percentile "on a psychomotor
task involving the rapid copying of figures associated with
numbers"; and he scored in the 9th percentile "on a subtest
requiring the solving of oral arithmetic problems."

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Carroll, 294 F.3d at 241 (no evidence that symptoms persisted);

Whitney, 258 F.3d at 34 (impairment was mild, reversible and short

lived); Santiago Clemente, 213 F.3d at 32 (impairment was temporary

and no evidence of long-term impact); Bercovitch, 133 F.3d at 155-

56 (no evidence of severity); Soileau, 105 F.3d at 15-16 (no

evidence of severity or long-term impact). This is not to say that

plaintiffs must present evidence pertaining to all three factors in

order to survive summary judgment. See Navarro, 261 F.3d at 100

n.6 (stating that the individualized nature of what constitutes a

disability means "that the three listed factors can combine in a

number of different ways, even to the exclusion of one or more of

them"). Rather, it is merely a recognition that when plaintiffs

present sufficient evidence as to all three factors the case is no

longer "so one-sided that the movant is plainly entitled to

judgment, for reasonable minds could not differ as to the outcome."

FHS Props. Ltd. P'ship, 175 F.3d at 85.

IV. THE MAJORITY'S UNNECESSARY AND ERRONEOUS ANALYSIS
OF "OTHERWISE QUALIFIED"

As I stated earlier, the majority's conclusion that Calef

is not disabled under the ADA means that further discussion of

whether Calef is "otherwise qualified" is not required. As a

general rule, I do not think that it is appropriate for an

appellate court to make unnecessary pronouncements about the law.

I can see no good reason for deviating from this general rule here,

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and therefore respectfully dissent from Part II(B) of the

majority's opinion on that basis.

I also disagree with the substance of the majority's

analysis of whether Calef was "otherwise qualified" to perform the

"essential functions" of his job, with or without a reasonable

accommodation. First, the majority incorrectly defines "essential

functions." Without any citation, the majority states that it was

an essential function of Calef's job to handle stressful situations

"without making others in the workplace feel threatened for their

safety." I respectfully object to infusing the subjective fear of

the nurses and Calef's supervisor into the "essential functions"

analysis. Doing so opens the door for employers to fire disabled

workers because other employees say they are afraid of their

disabled colleagues.

There exists a separate and distinct analysis to deal

with situations where a disabled person presents a "direct threat"

to the safety of coworkers. See 42 U.S.C. § 12113(b). The reason

for using a separate analysis in such instances is to protect

disabled people from "prejudice, stereotypes, or unfounded fear."

Sch. Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273, 287

(1987); see also EEOC v. Amego, 110 F.3d 135, 143 n.5 (1st Cir.

1997) (explaining that the legislative purpose of the "direct

threat" analysis is to ensure that employment decisions are not

based on "fears or stereotypes," but rather objective evidence such

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as overt acts or threats of violence). This is not a direct threat

case. There is no evidence that Calef was violent or threatened

anyone with violence on December 6, 1996. Nor did Gillette raise

the "direct threat" argument on appeal.16 See Beal Bank, SSB v.

Pittorino, 177 F.3d 65, 68 (1st Cir. 1999) (defenses not raised or

undeveloped are waived). I also point out that the reason Gillette

gave for firing Calef was that he refused to work overtime on

Sunday and failed to cooperate with his supervisor, not that he

threatened anyone with harm.

The majority suggests in a footnote that our holding in

Amego stands for the proposition that the subjective fear of

Calef's coworkers is relevant to this case. I do not read Amego as

broadly as the majority. The holding in Amego was limited to

situations where the "risk posed to others arises in the context of

a core function of the job," such as cases involving health care

workers. 110 F.3d at 143-44. In those types of cases, examining

the safety of others in conjunction with whether a person is

"otherwise qualified" makes sense because the core job functions

are intertwined with safety concerns. A mechanic's core job

functions are not intertwined with the safety of others in the same

way as a health care worker. Therefore, the holding in Amego does

not reach to this case.

16
Gillette concedes that the "direct threat" analysis
is an affirmative defense that places the burden of proof on
the defendant.

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 The majority claims that its "otherwise qualified"

analysis is "also the view of every circuit case which has

addressed a similar situation under the ADA or the Rehabilitation

Act." The cases from other circuits upon which the majority relies

do not address the same situation we face here. In all of those

cases, the plaintiff was fired because he was violent or threatened

violence. See Palmer v. Circuit Court, 117 F.3d 351 (7th Cir.

1997) (plaintiff told coworker she would "kick her ass" and "throw

her out of her window"); Johnson v. N.Y. Hosp., 96 F.3d 33, 34 (2d

Cir. 1996) (plaintiff had "violent scuffles with security guards");

Williams v. Widnall, 79 F.3d 1003, 1007 (10th Cir. 1996) (plaintiff

made threats against his supervisor and co-workers); Crawford v.

Runyon, 79 F.3d 743, 744 (8th Cir. 1996) (plaintiff made threats to

hurt or kill his supervisor); Adams v. Alderson, 723 F. Supp. 1531,

1532 (D.D.C. 1989) (plaintiff committed "a violent physical assault

upon a female supervisor"). In sharp contrast, the parties all

agree that Calef did not act violently or threaten anyone with

violence on December 6, 1996. The parties also agree that Calef

never had a violent incident at work after he began therapy and

started taking medication.

The remaining two cases cited by the majority are from

this circuit, and are also distinguishable. Reed v. Lepage

Bakeries, Inc., 244 F.3d 254 (1st Cir. 2002), involved a plaintiff

who, unlike Calef, failed to request a reasonable accommodation

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from his employer. This court called that failure "the fatal flaw

in Reed's case." Id. at 260. Bercovitch involved a defendant that

made numerous accommodations to the plaintiff, whereas here,

Gillette refused outright Calef's requests for accommodation. 133

F.3d at 154. In addition, the plaintiff in Bercovitch was seeking

a preliminary injunction and therefore had to prove a "probability

of success" that he was otherwise qualified--which is a much higher

burden than Calef faces on summary judgment. Id. at 151.

The majority's discussion of whether Calef was "otherwise

qualified" troubles me for another reason. The majority refers

twice to the fact that "Calef never renewed his request to be moved

to different machines." The majority fails to understand that an

employer's refusal to provide a requested reasonable accommodation

is a violation of the ADA, see Higgins v. New Balance Athletic

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

many times the employee asks. Here, Calef asked his boss for a

reasonable accommodation and was "rejected out of hand." Katz, 87

F.3d at 33. Calef then made the same request to his boss's boss,

and received the same treatment. My concern is that employers will

now be discouraged from providing an accommodation upon an

employee's first request, or the second for that matter, in hopes

that the employee will fail to "renew" the request. This behavior

conflicts with the purpose of the ADA, which places emphasis "on

encouraging the employer to engage in an interactive process with

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the individual to determine an effective reasonable accommodation."

Grenier, 70 F.3d at 677 (citation and quotation marks omitted)

(emphasis added).

V. CONCLUSION

Calef has presented sufficient evidence from which a

reasonable fact finder could, but need not, decide that he is

disabled within the meaning of the ADA. This case should be

remanded for further proceedings.

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