The Honorable Harold D. Vietor, United States District Judge 1

for the Southern District of Iowa.

___________

No. 95-3802

___________

Jerry O. Smith, *

*

Appellant, *

*

v. *

*

City of Des Moines, Iowa, * Appeal from the United States

* District Court for the 

Appellee. * Southern District of Iowa.

___________________________ *

*

Equal Employment Opportunity *

Commission, *

*

Amicus Curiae. *

___________

 Submitted: May 17, 1996

 Filed: November 12, 1996

___________

Before BOWMAN, HEANEY, and WOLLMAN, Circuit Judges.

___________

BOWMAN, Circuit Judge.

Appellant Jerry O. Smith brought suit against the City of Des Moines,

claiming that he was fired from his position as a city firefighter in

violation of the Age Discrimination in Employment Act of 1967 (ADEA), 29

U.S.C. §§ 621-634 (1994), and the Americans With Disabilities Act of 1990

(ADA), 42 U.S.C. §§ 12101-12213 (1994). The District Court granted

1

summary judgment in favor of the city on all of Smith's claims. Smith

appeals, and we affirm.
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I.

At the time of his dismissal, Smith had been a firefighter with the

Des Moines Fire Department for thirty-three years and had risen to the rank

of fire captain. In 1988, the city began to require annual testing of all

firefighters at the rank of captain or below to determine whether they

could safely fight fires while wearing a self-contained breathing apparatus

(SCBA). Each firefighter underwent spirometry testing, which gauges

pulmonary function by measuring the capacity of the lungs to exhale. Any

firefighter whose forced expiratory volume in one second (FEV1) exceeded

70% of lung capacity was approved to wear a SCBA. If a firefighter scored

less than 70%, he or she was required to take a maximum exercise stress

test, which measures the capacity of the body to use oxygen effectively.

The city required firefighters to establish a maximum oxygen uptake (VO2

max) of at least 33.5 milliliters per minute per kilogram of body weight

in order to pass the stress test.

Smith failed both tests in 1988 and was not approved to wear a SCBA

that year. In 1989, 1990, and 1991, Smith passed the spirometry test and

was approved for SCBA use. In August 1992, Smith narrowly failed the

spirometry test and was referred to Dr. Steven K. Zorn, a consultant to the

city, for further testing. In Dr. Zorn's office, Smith passed the

spirometry test but registered a VO2 max of only 22.2 on the stress test.

The fire department placed Smith on sick leave. In January 1993, Smith

returned to Dr. Zorn but scored only 21.1 on a stress test. The fire

department offered to allow Smith to remain on sick leave until April, when

he would turn age fifty-five and thus be eligible for retirement.

In the interim, the fire department sent Smith to another physician,

Dr. John Glazier, for a second opinion. Additionally, when Smith did not

file for retirement in April, the fire chief
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filed an application for disability retirement on Smith's behalf. Before

ruling on this application, the state pension board required Smith to be

examined by a panel of three additional physicians. Dr. Glazier did not

perform a stress test, but the panel of three physicians did (Smith's VO2

max was 28.9). All four physicians concluded that Smith was physically

capable of working as a firefighter. After receiving these

recommendations, the pension board denied the application for disability

retirement, finding that Smith was not disabled from working as a

firefighter.

The fire department did not permit Smith to return to work but did

offer to place him on leave of absence with benefits until July 1, 1994,

when he would be eligible for maximum pension benefits. Smith did not file

for retirement at that time, however, and the city discharged him on July

18, 1994 for failure to meet the fire department's physical fitness

standards.

After obtaining right-to-sue letters from the Equal Employment

Opportunity Commission (EEOC) and the Iowa Civil Rights Commission, Smith

brought suit against the city in federal district court, raising claims

under the ADEA, the ADA, and the Iowa Civil Rights Act, Iowa Code Ann.

§§ 216.01-.20 (West 1994 & Supp. 1996). The District Court granted summary

judgment in favor of the city on all counts. The court, assuming Smith

could establish that the city's testing standards have a disparate impact

on older firefighters, held that the city had established a "business

necessity" defense because firefighters require "a high standard of

physical fitness." Similarly, Smith's ADEA disparate treatment claim

failed because he was not qualified for the job, and the state law claim

failed because Iowa law mirrors federal law. The District Court also

concluded that Smith did not have a disability and granted summary judgment

for the city on his ADA claim. Smith's appeal raises only the disparate

impact and ADA claims.
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We have jurisdiction over Smith's appeal pursuant to 28 U.S.C. § 1291

(1994). Our review of a grant of summary judgment is de novo. Krenik v.

County of Le Sueur, 47 F.3d 953, 959-60 (8th Cir. 1995). We will affirm

"only if the record, when viewed in the light most favorable to the

nonmoving party and giving the nonmoving party the benefit of all

reasonable factual inferences, shows no genuine issue of material fact and

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

American Express Co., 994 F.2d 513, 515 (8th Cir. 1993).

II.

A.

We consider first the city's argument, which the District Court

rejected, that a claim of disparate impact is not cognizable under the

ADEA. Disparate impact claims challenge "'employment practices that are

facially neutral in their treatment of different groups but that in fact

fall more harshly on one group than another and cannot be justified by

business necessity.'" Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993)

(quoting International Bhd. of Teamsters v. United States, 431 U.S. 324,

335-36 n.15 (1977)). A disparate impact plaintiff need not prove a

discriminatory motive. Id.

Like Title VII of the Civil Rights Act of 1964, to which the

disparate impact theory was first applied in Griggs v. Duke Power Co., 401

U.S. 424 (1971), the ADEA contains two prohibitions relevant here:

It shall be unlawful for an employer--

(1) to fail or refuse to hire or to discharge any

individual or otherwise discriminate against any individual

with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual's age;
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(2) to limit, segregate, or classify his employees in any

way which would deprive or tend to deprive any individual of

employment opportunities or otherwise adversely affect his

status as an employee, because of such individual's age . . . .

29 U.S.C. § 623(a) (1994).

We have on several occasions applied disparate impact analysis to age

discrimination claims. See Houghton v. SIPCO, Inc., 38 F.3d 953, 958-59

(8th Cir. 1994) (reversing plaintiff's verdict because of erroneous jury

instruction); Nolting v. Yellow Freight Sys., Inc., 799 F.2d 1192, 1196-99

(8th Cir. 1986) (affirming judgment for defendant); Leftwich v. HarrisStowe State College, 702 F.2d 686, 690-93 (8th Cir. 1983) (affirming

judgment for plaintiff).

Several years ago, in a disparate treatment case under the ADEA, the

Supreme Court noted that it had never decided whether a disparate impact

theory is available under the ADEA. Hazen Paper, 507 U.S. at 610. In a

concurring opinion, three Justices stated that "there are substantial

arguments that it is improper to carry over disparate impact analysis from

Title VII to the ADEA." Id. at 618 (Kennedy, J., concurring). Other

language in the lead opinion can be read as a suggestion by the Court that

the ADEA does not permit disparate impact actions. See id. at 610

("Disparate treatment, thus defined, captures the essence of what Congress

sought to prohibit in the ADEA."); id. at 611 ("When the employer's

decision is wholly motivated by factors other than age, the problem of

inaccurate and stigmatizing stereotypes disappears.").

Before the Supreme Court decided Hazen Paper, many courts of appeals

had recognized a disparate impact theory under the ADEA. See EEOC v.

Francis W. Parker Sch., 41 F.3d 1073, 1079 n.1 (7th Cir. 1994) (Cudahy, J.,

dissenting), cert. denied, 115 S. Ct. 2577 (1995). Since Hazen Paper,

several circuits have revisited the issue. See DiBiase v. SmithKline

Beecham Corp., 48 F.3d 719, 732-
 Some confusion has resulted from a difference between the

2

ADEA and Title VII. Section 623(a)(2) of the ADEA governs employer

conduct with respect to "employees" only, while the parallel

provision of Title VII protects "employees or applicants for

employment." Compare 29 U.S.C. § 623(a)(2) (1994) with 42 U.S.C.

§ 2000e-2(a)(2) (1994). Because Francis W. Parker School and Ellis

were disparate impact actions involving applicants for employment,

the plaintiffs in those cases were limited to relying on

§ 623(a)(1), which covers employees and applicants.

In this case, because Smith was an employee of the city, he

may rely on either subsection of section 623(a). Our opinion in

Leftwich (involving an applicant) established that a plaintiff may

base a disparate impact claim on § 623(a)(1). Leftwich, 702 F.2d

at 690. And the Supreme Court has made it clear in the Title VII

context that the second subsection can be the basis for such a

claim. See, e.g., Lorance v. AT&T Techs., Inc., 490 U.S. 900, 904

(1989); Connecticut v. Teal, 457 U.S. 440, 448-49 (1982); Griggs,

401 U.S. at 426 n.1.

 Like this case, Houghton involved incumbent employees. Id. 3

at 956. The opinion does not specify the subsection of § 623(a) on

which the disparate impact action was premised.

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34 (3d Cir.) (opinion of Greenberg, J., alone) (doubting disparate impact

theory cognizable), cert. denied, 116 S. Ct. 306 (1995); Lyon v. Ohio Educ.

Ass'n & Prof'l Staff Union, 53 F.3d 135, 139 n.5 (6th Cir. 1995) (noting

doubt as to disparate impact theory); Francis W. Parker Sch., 41 F.3d at

1076-78 (suggesting disparate impact theory not cognizable); Mangold v.

California Pub. Utils. Comm'n, 67 F.3d 1470, 1474 (9th Cir. 1995)

(suggesting disparate impact theory is cognizable); Ellis v. United

Airlines, Inc., 73 F.3d 999, 1007-10 & n.12 (10th Cir.) (holding disparate

impact theory not cognizable under § 623(a)(1) and suggesting it is not

cognizable under § 623(a)(2)), cert. denied, 116 S. Ct. 2500 (1996).2

Our opinion in Houghton, however, postdated Hazen Paper and continued

to recognize the viability of disparate impact actions under the ADEA. See

Houghton, 38 F.3d at 958-59. As a result, even if we believed that Hazen 3

Paper cast doubt on the validity of Leftwich and Nolting, Houghton

represents the law of this Circuit,
 Title VII contains no provision parallel to the "reasonable 4

factors other than age" language in the ADEA. See 42 U.S.C.

§ 2000e-2(e) (1994). Nevertheless, the EEOC, as amicus curiae and

in its regulations interpreting the ADEA, suggests that the

business necessity defense is the same under Title VII and the

ADEA. See 29 C.F.R. § 1625.7(d)-(e) (1995). For reasons that will

be made clear in the text of this opinion, we need not decide this

issue in this case.

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which we follow absent a "clear indication" that it has been overruled.

FDIC v. Bowles Livestock Comm'n Co., 937 F.2d 1350, 1354 (8th Cir. 1991).

We conclude that disparate impact claims under the ADEA are cognizable.

B.

We assume, as the District Court did, that Smith has established a

prima facie case of disparate impact, that is, that he has demonstrated

"that a facially neutral employment practice actually operates to exclude

from a job a disproportionate number of persons protected by the ADEA."

Leftwich, 702 F.2d at 690. We therefore turn to Smith's argument that the

District Court erroneously granted summary judgment to the city based on

the so-called "business necessity" defense.

This defense is derived in part from the cases in which the Supreme

Court developed the disparate impact doctrine under Title VII, see, e.g.,

Dothard v. Rawlinson, 433 U.S. 321, 332 n.14 (1977) (physical requirements

for prison guards with disparate impact on women "must be shown to be

necessary to safe and efficient job performance"), and in part from a

provision of the ADEA which states that an employment practice is not

unlawful "where the differentiation is based on reasonable factors other

than age." 29 U.S.C. § 623(f)(1) (1994). We recognize that in the Title 4

VII context the business necessity defense has undergone several

transformations in recent years. See Wards Cove Packing Co. v. Atonio, 490

U.S. 642, 659 (1989) (placing burden of persuasion on
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plaintiff and broadening the defense); Civil Rights Act of 1991, Pub. L.

No. 102-166, § 105, 105 Stat. 1071, 1074-75 (codified at 42 U.S.C. § 2000e2(k) (1994)) (attempting to restore pre-Wards Cove law). Our most recent

ADEA disparate impact opinion reflected the shift to the Wards Cove

standard, see Houghton, 38 F.3d at 959, but we have not yet considered

whether the Civil Rights Act of 1991 has affected the ADEA's business

necessity defense.

We need not decide that issue in this case. In granting summary

judgment for the city, the District Court clearly placed the burden of

persuasion on the city in a manner consistent with the pre-Wards Cove

standard. For purposes of our analysis, we therefore assume, without

deciding, that pre-Wards Cove law--the law most favorable to Smith--applies

here. In the context of a physical job requirement, the pre-Wards Cove

business necessity defense places the burden of persuasion on the defendant

to show that the requirement has "a manifest relationship to the employment

in question," Griggs, 401 U.S. at 432, and that it is "necessary to safe

and efficient job performance." Dothard, 433 U.S. at 332 n.14. See McCosh

v. City of Grand Forks, 628 F.2d 1058, 1062 (8th Cir. 1980) (applying this

test to Title VII case involving job requirements for police sergeants);

Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1119 (11th Cir. 1993)

(holding, in Title VII case involving firefighters and SCBAs, that

"[m]easures demonstrably necessary to meeting the goal of ensuring worker

safety are therefore deemed to be 'required by business necessity'").

It follows that the city, as the party with the burden of persuasion

on the business necessity defense, was required to support its summary

judgment motion "with evidence that would entitle it to a directed verdict

if not controverted at trial." Firemen's Fund Ins. Co. v. Thien, 8 F.3d

1307, 1310 (8th Cir. 1993) (citing Celotex Corp. v. Catrett, 477 U.S. 317,

331 (1986) (Brennan, J., dissenting)). If the city met that burden, the

burden of production then shifted to the nonmoving party, Smith, to
 The federal regulations do not apply to the city directly.

5

See 29 U.S.C. § 652(5) (1994) (excluding states and political

subdivisions from coverage of Occupational Safety and Health Act).

The Iowa occupational safety and health laws do apply to the city,

however, Iowa Code Ann. § 88.3(5) (West Supp. 1996), and the

applicable state regulations adopt the federal regulations by

reference. Iowa Admin. Code r. 347-10.20(88) (1996).

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show the existence of a genuine issue of fact for trial. Id. Using this

framework, we review Smith's objections to the District Court's grant of

summary judgment.

We conclude that the city met its burden on the business necessity

defense by supporting its motion with evidence that would entitle it to a

directed verdict if not controverted by evidence sufficient to create a

jury issue. On the job-relatedness issue, the city presented undisputed

evidence that a captain is frequently involved in fire suppression

activities when a company arrives at a fire scene and that the captain

wears a SCBA under those circumstances. Joint Appendix (J.A.) at 157-59,

302. This evidence alone is sufficient to carry the city's burden of

showing that its fitness standard has a "manifest relationship" to the

position in question. Griggs, 401 U.S. at 432.

The other element of the defense is whether the standard is necessary

to safe and effective job performance. The city's evidence on this issue

is more complicated and begins with some of the extensive regulations

governing the manner in which the city operates its fire department.

Federal regulations require the fire department to provide firefighters

with SCBAs "when such equipment is necessary to protect the health of the

employee." 29 C.F.R. § 1910.134(a)(2) (1995). The city may not assign

5

firefighters to tasks requiring use of a SCBA unless they are "physically

able to perform the work and use the equipment." Id. § 1910.134(b)(10).

The city must review the medical status of SCBA users periodically. Id.

The American National Standards Institute (ANSI) standard on physical

qualifications for respirator use recommends spirometry
 The city's brief repeatedly refers to this pass rate as "at 6

least 70%." We are not sure why the city uses this figure, but it

makes little difference to our analysis whether the number is 70%

or 86%.

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testing as a screening mechanism for SCBA users and suggests stress testing

for persons who use SCBAs under strenuous conditions. J.A. at 338. ANSI

recommends a 70% FEV1 threshold for spirometry testing but does not specify

an acceptable result for stress testing. Id.

To reach its determination that a VO2 max of 33.5 was the appropriate

threshold for stress testing, the city relied on a review of the relevant

medical literature by Dr. Zorn. A number of studies suggest that

firefighters consume between 25 and 35 milliliters of oxygen per kilogram

per minute while suppressing a fire. J.A. at 200. One study in particular

involved 150 firefighters performing a series of tasks in a simulated firesuppression environment. Id. at 212-22. The authors of that study

determined that a VO2 max of 33.5 was the minimum required to allow the

firefighters to complete the simulation successfully. Id. at 218. The

authors then repeated the simulation with 32 additional firefighters. Id.

Of those with a VO2 max less than 33.5, only 40% (4 of 10) completed the

simulation successfully. Id. On the other hand, of those with a VO2 max

of 33.5 or more, 86% (19 of 22) completed the simulation successfully.6

Id. After reviewing this study and others, Dr. Zorn concluded that 33.5

was the minimum satisfactory VO2 max requirement for the Des Moines

firefighters. J.A. at 83. This evidence would clearly be sufficient to

entitle the city to a directed verdict on the issue of necessity if it were

uncontroverted. See Firemen's Fund, 8 F.3d at 1310.

We now turn to the evidence presented by Smith in opposition to the

city's summary judgment motion. Smith does not dispute that firefighting

is a strenuous occupation or that the city has a legitimate interest in

determining whether its employees can
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perform those duties safely. On the issue of job-relatedness, he does

argue that as a captain, he did not perform the same duties as a line

firefighter, and that the 33.5 threshold is therefore not related to his

particular position. But as we noted above, it is undisputed that Smith

and other captains do enter burning buildings and perform fire suppression

activities when their companies arrive at a fire scene; as Smith himself

stated, "if we were the first to arrive, I would don a mask, go right in

and attack the fire." J.A. at 301-02. Although Smith also stated that he

would "[v]ery seldom" perform tasks like knocking down walls, id., this

evidence is insufficient to create a jury issue on job-relatedness in light

of the uncontroverted evidence that he was required to fight fires while

wearing a SCBA.

On the issue of whether the requirement is necessary to safe and

effective job performance, Smith argues that the opinions of the panel of

physicians who determined he was not disabled for purposes of disability

benefits, plus the opinion of Dr. Glazier that Smith is capable of

performing exertional tasks while wearing a SCBA, create a fact issue. We

disagree. We note first that these physicians examined Smith in the

context of a disability retirement proceeding. A member of a police or

fire department in Iowa is eligible for disability benefits if the

examining physicians certify "that the member is mentally or physically

incapacitated for further performance of duty, that the incapacity is

likely to be permanent, and that the member should be retired." Iowa Code

Ann. § 411.6(3) (West Supp. 1996). Even though the disability

determination was phrased in broader language than the statute ("He does

not have any limitation which would preclude him from working as a

firefighter . . . and in our opinion he should be reinstated fully to work

as a firefighter," J.A. at 360), the physicians' conclusions lack probative

value on the relevant issue in this case: whether the fitness standard set

by the city is necessary to safe and efficient job performance. The

opinions of these physicians, aside from being geared to the question of
 Two members of the panel of three physicians later reviewed 7

the primary study, detailed above, on which the city relied in

setting the 33.5 VO2 max standard. They concluded:

Dr. Moseley and I do not believe that this study

justifies identifying Mr. Smith as unable to fulfill the

duties of a firefighter. In fact, Mr. Smith's exercise

capacity was 110% [of] predicted for his age and size.

I therefore believe that Mr. Smith is fully capable of

working as a firefighter and recommend that he return to

work.

J.A. at 361. This evidence comes closer to addressing the

necessity of the 33.5 standard, but it is ultimately only an

opinion that Smith be permitted an exception to the fire

department's policy. The physicians do not suggest that the study

is inaccurate or that the fitness standard is unreasonable. We

also note that whether Smith's performance on the stress test

exceeded the physicians' expectations is irrelevant.

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Smith's entitlement to disability benefits, do not appear to have

considered the solid scientific studies on which the city based the 33.5

VO2 max standard. Such evidence affords no basis for allowing a jury to 7

second-guess the city's well-supported and reasonable conclusion that, in

the interest of the safety of its firefighters (including captains) and

their effective job performance, the appropriate place to draw the line was

at a VO2 max of 33.5. We thus conclude that Smith has not demonstrated a

factual dispute on this issue.

To summarize our conclusions: fitness and the ability to perform

while wearing a SCBA are undoubtedly job-related and necessary requirements

for firefighters. The dispute in this case is not whether firefighters

must be physically fit, but how fitness can be most appropriately measured

and how the city may distinguish those firefighters who are probably

capable of performing the job from those firefighters who are probably not

capable. The city has not proceeded arbitrarily, but rather has carefully

developed a standard based upon the available medical literature and using

the
 Because the city is measuring fitness directly, this case is 8

distinguishable from Dothard, where the job (prison guard) required

a degree of strength but the defendants did not show any

correlation between the requirements (minimum height and weight)

and the strength required for the job. See Dothard, 433 U.S. at

331.

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best test available for measuring fitness, the stress test. J.A. at 81. 8

The literature indicates that a high proportion of firefighters with a VO2

max above 33.5 can perform fire suppression tasks successfully, but a much

lower proportion of those with a VO2 max below 33.5 can do so. Smith

argues, and the physicians' evaluations suggest, that some firefighters

with lower VO2 max scores--Smith in particular--may be able to perform

their jobs. This may well be true, but the law does not require the city

to put the lives of Smith and his fellow firefighters at risk by taking the

chance that he is fit for duty when solid scientific studies indicate that

persons with test results similar to his are not. The lack of a precise

or universally perfect fit between a job requirement and actual effective

performance is not fatal to a claim of business necessity, particularly

when the public health and safety are at stake. See McCosh, 628 F.2d at

1062-63; cf. Fitzpatrick, 2 F.3d at 1120-21 (lack of unfortunate incidents

in the past insufficient to create genuine issue of fact as to necessity

of safety requirements). We conclude that Smith has not met his burden of

presenting a triable issue on the business necessity defense.

C.

Smith also argues that he presented evidence of an alternative means

of assessing fitness that would have less of a disparate impact on older

firefighters. In particular, he suggests that the city use the spirometry

and stress tests to determine which firefighters may be unfit for the job,

then require those firefighters to undergo a physical examination and "a

battery of
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tests" to determine whether they are actually fit for duty. Appellant's

Br. at 24.

We have not previously had the occasion to determine whether this

branch of the Title VII disparate impact doctrine applies to the ADEA. For

purposes of this appeal, however, we assume that the Title VII framework

applies: once the defendant has met its burden of demonstrating business

necessity, the plaintiff may still prevail by showing "that other selection

devices without a similar discriminatory effect would also serve the

employer's legitimate interest in efficient and trustworthy workmanship."

Dothard, 433 U.S. at 329 (quotations omitted). For several reasons,

Smith's argument on this point is unavailing.

First, it does not appear from the record that Smith advanced this

argument before the District Court. We will not reverse a grant of summary

judgment on the basis of an argument not presented below. See, e.g.,

O.R.S. Distilling Co. v. Brown-Forman Corp., 972 F.2d 924, 926 (8th Cir.

1992). Even if the argument were proper, however, Smith has not made any

showing that his proposed alternative (which is in any case rather vague)

would have less of a disparate impact on older firefighters than the city's

present system does. At most, Smith has asserted that he would be able to

pass his proposed battery of tests, but he has not shown the effect of his

system on other firefighters. Nor has he shown that his more subjective

approach would serve the city's legitimate interest in the fitness of its

firefighters as well as the current system. Smith has failed to raise a

genuine issue of material fact on this branch of the disparate impact

doctrine.

III.

Finally, we consider the District Court's grant of summary judgment

in favor of the city on Smith's ADA claim.
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The ADA prohibits employers from discriminating 'against a

qualified individual with a disability because of the

disability of such individual.' 42 U.S.C. § 12112(a). A

plaintiff seeking relief under the ADA must establish that he

is a disabled person within the meaning of the ADA, that he is

qualified to perform the essential functions of his job either

with or without reasonable accommodation, and that he was

terminated because of his disability.

Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th Cir. 1995). The ADA

defines "disability" with respect to an individual as follows:

(A) a physical or mental impairment that substantially limits

one or more of the major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.

42 U.S.C. § 12102(2) (1994). Because the fire department filed for

disability retirement on his behalf, Smith claims that the city regards him

as having a disability. The parties agree that Smith is not in fact

disabled. Amend. Compl. ¶ 26; Answer ¶ 20.

We rejected a claim similar to Smith's in Wooten. In that case, we

recognized that "working" is a "major life activity" that, if substantially

limited by an impairment, brings an individual within the protection of the

ADA. Wooten, 58 F.3d at 385-86. We also held, however, that "'working'

does not mean working at a particular job of that person's choice" and

recognized that "[a]n impairment that disqualifies a person from only a

narrow range of jobs is not considered a substantially limiting one." Id.

at 386 (quotation omitted); see also 29 C.F.R. § 1630.2(j)(3)(i) (1996)

("The inability to perform a single, particular job does not constitute a

substantial limitation in the major life activity of working."). We then

applied these principles to a "regarded as" situation in which Wooten

claimed that his former employer regarded
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him as having a disability, and we affirmed a grant of summary judgment for

the employer. Wooten, 58 F.3d at 386.

Smith's claim fails for the same reasons that Wooten's did. Viewing

the record in the light most favorable to Smith, we see that the city

regarded Smith as unable to perform the duties of a firefighter. But Smith

does not suggest that the city believed he was unable to perform other

jobs, and he has presented no evidence to support that proposition. In

fact, in a letter to Smith in December 1993, the fire chief recognized that

Smith had gone back to school and had taken another job while he was on

sick leave from the fire department. J.A. at 267. Smith failed to create

a genuine issue of fact as to whether the city regarded him as having a

disability for purposes of the ADA, and the District Court properly granted

summary judgment on this claim.

IV.

The judgment of the District Court is affirmed.

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

I concur in parts I, IIA, and III of the majority's opinion. I

respectfully dissent, however, from the majority's conclusion in parts IIB

and IIC that the city was entitled to summary judgment on Smith's age

discrimination claim. I certainly agree that a high level of physical

fitness is related to the job of a firefighter and that the city must

develop a policy that ensures safe and efficient job performance. In my

view, however, the city has not adequately demonstrated that its fitness

standard has a manifest relationship to the duties of a fire captain. Nor

has the city produced sufficient evidence to support a finding that its

policy of dismissing all employees who fail to meet the standard is

necessary for their safe and efficient job performance. Moreover, contrary

to the majority's position, the opinions of four
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physicians who independently examined Smith and determined that he was fit

to perform his firefighting duties, directly rebut the necessity of the

city's policy. At a minimum, therefore, I do not agree that summary

judgment was appropriate for Smith's age discrimination claim and would

remand to the district court for a full trial on the merits.

To prevail in its business necessity defense, the city must validate

its fitness test for job-relatedness to the particular skills and

exertional requirements of a fire captain, the position at issue in this

case. See Albermarle Paper Co. v. Moody, 422 U.S. 405, 431, 45 L.Ed. 2d

280, 304 (1975). As the ANSI report recommends, for a proper fitness

evaluation, an examiner must consider meaningful work-related information,

including the type of activity to be performed, the level and duration of

effort required. (J.A. at 336.) 

To justify its fitness standard, the city relies solely on Dr. Zorn's

conclusion based on his review of a report of a study in which he did not

participate. The study tested the ability of a sample group of

firefighters to complete a series of tasks that were "designed to simulate

the duration, intensity, and types of tasks that are performed during

firefighting." (J.A. at 215.) As the majority states, a fire captain is

frequently involved in fire suppression activities when a company arrives

at a fire scene. Yet, as both Chief Phillips and Chief Morgan testified,

a fire captain spends much less time in the structure fighting the fire

than firefighters and the captain's main role is directing, not

participating in, the fire suppression. (J.A. at 151, 170.) Dr. Zorn

acknowledged that it would be "reasonable" to adjust the fitness

requirements for different positions, depending on the amount of time each

position spends suppressing the fire. He left those decisions to the fire

department. (J.A. at 130.) The city has made no attempt to link its

fitness standard specifically to
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the job requirements of a fire captain. Thus, the standard cannot be

justified as a business necessity.

Even if a fitness standard for firefighters could justify the

dismissal of a fire captain, there is conflicting evidence in the record

as to whether the test used and the specific fitness level set by the city

are reasonable. After reviewing the study and discussing its findings with

Dr. Zorn, Dr. Schwartz wrote to the fire department: "Dr. Moseley and I

do not believe that this study justifies identifying Mr. Smith as unable

to fulfill the duties of a firefighter." (J.A. at 361.) Dr. Schwartz

testified that the VO2 minimums set by the city are unreasonable and that,

in his opinion, the city should not rely on a single test for its fitness

evaluation. (J.A. at 179-80.) With this conflicting evidence as to the

validation of the standard, Smith's claim should have survived summary

judgment.

In addition to the insufficient evidence of a "manifest relationship"

between the fitness standard and Smith's job requirements, the city has not

demonstrated the necessity of its policy requiring dismissal of all those

who fail the fitness test. The city argues that its policy is necessary

because federal regulations and ANSI recommendations require fire

departments to ensure the safety of its employees. Neither authority

requires as strict a policy as the city has adopted for its firefighters,

however. Moreover, the study on which the city relies for its standard

does not recommend that employees failing to meet the standards be fired.

Rather, the study suggests that employees who cannot meet the standards be

given a specialized exercise regime to improve their levels of

cardiopulmonary fitness. As the authors of the study recognize, 

policies that select and/or retain on the basis of fitness but

are not accompanied by programs emphasizing fitness may be

vulnerable to legal challenge. Initiating
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entry expectations at a level allowing for a reasonable decline

with advancing age is one step but this should be accompanied

by weight control, exercise, and smoking cessation programs

with periodic individualized assessment.

(J.A. at 221.)

In a letter to Dr. Zorn, Sothmann recommends:

a proactive approach where individuals below the expectation

are given time to improve through an established policy

negotiated by concerned parties (e.g. administration, union,

medical, human rights). An unwillingness to adhere or failure

to achieve the expectation should be treated on a case by case

basis with additional information to decide employment

implications.

(J.A. at 256.) The city did not implement these recommendations. Where

a fitness test so disparately affects persons protected by the ADEA, the

city should at least attempt to minimize the effect by giving its employees

an opportunity to improve their physical condition.

To further rebut the necessity of the city's fitness standard, Smith

has presented substantial evidence that, despite failing the city's test,

he was fit to perform firefighting duties. Dr. Glazier, who examined Smith

to provide a second opinion, stated that based on spirometric findings,

"[Smith] is capable of performing exertional tasks while wearing SCBA."

(J.A. at 364.) The three doctors who evaluated Smith for his disability

pension status thoroughly examined him. Each concluded separately not only

that Smith was not disabled but also that he was fit to return to work as

a firefighter. As the EEOC asserted in its amicus brief, the opinions of

the four doctors that Smith's cardiopulmonary capacity would not prevent

him from performing the duties of his job safely and efficiently is

sufficient to create a triable issue of fact as to whether the city's

standard is justified by business necessity. 

The majority characterizes the dispute in this case as how fitness

can be "most appropriately measured." Rather, the real dispute is whether

the city's policy, which has a disparate impact on persons protected by the

ADEA, has a manifest relationship to the job of a fire captain and whether
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it is necessary for the safe and efficient performance of the captain's

job. In my view, plaintiff presents sufficient evidence to counter both

elements of the business necessity defense. Thus, Smith's age

discrimination claim should have survived summary judgment.

A true copy.

Attest:

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