### The Honorab le 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 M oines, cla iming that he was fired from his position as a city firefighter i n violation of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634 (19 94), and the Americans With Disabilities Act of 1990 (ADA) , 42 U.S.C. §§ 12101-12213 (1994). The District Court grante d 1 summary judgment in favor of the city on all of Smith's claims. Smit h appeals, and we affirm.

### -2- I.

At the ti me of his dismissal, Smith had been a firefighter with the Des Moines Fire Department for thirty-three years and had risen to the ran k of fire captain. In 1988, the city began to require annual testing of all firef ighters at the rank of captain or below to determine whether the y could safely fight fires while wearing a self-contained breathing apparatu s (S CBA). Each firefighter underwent spirometry testing, which gauge s pulmonary function by measuring the capacity of the lungs to exhale. Any firefigh ter whose forced expiratory volume in one second (FEV ) exceede d 1 70% of lung capacity was approved to wear a SCBA . If a firefighter scored less th an 70%, he or she was required to take a maximum exercise stres s test, which measures the capacity of the body to use oxygen effectively. The cit y required firefighters to establish a maximum oxygen uptake (VO 2 max) of at least 33.5 milliliters per minute per kilogram of body weight in order to pass the stress test.

Smith fai led 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 th e spirometry test and was referred to Dr. Steven K. Zorn, a consultant to th e cit y, for further testing. In Dr. Zorn's office, Smith passed th e spirometry

test but registered a VO max of only 22.2 on the stress test. 2 The fire department placed Smith on sick leave. In January 1993, Smit h ret urned to Dr. Zorn but scored only 21.1 on a stress test. The fir e department offered to allow Smith to remain on sick leave until April, whe n 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

### -3-

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 VO 2 maxwas 28.9). All four physicians concluded that Smith was physicall y capabl e of working as a firefighter. After receiving thes e recommendations, the pension board denied the application for disability retir ement, finding that Smith was not disabled from working as a firefighter.

The fi re department did not permit Smith to return to work but di d 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 fil e for retirement at tha t time, however, and the city discharged him on July 18, 1994 for failure to meet the fire department's physical fitnes s standards.

After obtaining right-to-sue letters from the Equal Employmen t Opportunity Commissio n (EEOC) and the Iowa Civil Rights Commission, Smith bro ught suit against the city in federal district court, raising claim s under th e ADEA, the ADA, and the Iowa Civil Rights Act, Iowa Code Ann

. §§ 216.01-.20 (West 1994 & Supp. 1996). The District Court granted summar y judgmen t in favor of the city on all counts. The court, assuming Smit h could establish that the city's testing standards have a disparate impact
on olde r firefighters, held that the city had established a "busines s
neces sity" defense because firefighters require "a high standard o f physica l fitness." Similarly, Smith's ADEA disparate treatment clai m failed because he was not qualified for the job, and the state law claim failed bec ause Iowa law mirrors federal law. The District Court als o concluded that Smith did not have a disability and granted summary judgmen t for the city on his ADA claim. Smith's appeal raises only the disparate impact and ADA claims.

### -4- We have jurisdiction over Smith's appeal pursuant to 28 U.S.C. § 1291 (1994). Our review o f a grant of summary judgment is de novo. Krenik v. Countyof 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 th e
nonmo ving party and giving the nonmoving party the benefit of al l reasonable factual inferences, shows no genuine issue of material fact and the m oving 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 Cour t rejec ted, that a claim of disparate impact is not cognizable under th e ADEA. Disparate impact claims challenge "'employment practices that are faciallyneutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified b y 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 th e disparate impact theory was first applied in Gri ggs 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 an y ind ividual or otherwise discriminate against any individua l with respect to his compensation, terms, conditions, o r privileges of employment, because of such individual's age;

### -5- (2) to limit, segregate, or classify hi s employees in any waywhich would deprive or tend to deprive any individual o f employment opportunities or otherwise adversely affect hi s 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 (8thCir. 1994) (reversing plaintiff's verdict because of erroneous jury instruction); Nolting v. Yellow Freight Sys., In c. , 799 F.2d 1192, 1196-99 (8th C ir. 1986) (affirming judgment for defendant); Leftwich v. Harris

Stow e State College , 702 F.2d 686, 690-93 (8th Cir. 1983) (affirmin g judgment for plaintiff).
Several years ago, in a disparate tr eatment case under the ADEA, the Supreme Court noted that it had never decided whether a disparate impact theoryis available under the ADEA. Hazen Paper , 507 U.S. at 610. In a
concurr ing opinion, three Justices stated that "there are substantia l arguments that it is improper to carry over disp arate impact analysis from Title VII to the ADEA." Id. at 618 (Kennedy, J., concurring). Othe r language in the lead opinion can be read as a su ggestion by the Court that the ADEA does not permit disparate impact actions. See id. at 61 0 ("Disparate treatment, thus defined, captures th e essence of what Congress sought to prohibit in the ADEA."); id. at 611 ("When the employer' s decis ion is wholly motivated by factors other than age, the problem o f inaccurate and stigmatizing stereotypes disappears.").
Before the Supreme Court decided Haz en 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. , disse nting), cert. denied , 115 S. Ct. 2577 (1995). Since Hazen Paper , several circuits have revisited the issue. See DiBiase v. SmithKlin e Beecham Corp. , 48 F.3d 719, 732-

### Some confusion has resulted from a difference between th e 2 

### ADEA and Title VII. Section 623(a)(2) of the ADEA governs e mployer conduc t with respect to "employees" only, while the paralle l provis ion of Title VII protects "employees or applicants fo r employment." Compare 29 U.S.C. § 623(a)(2) (1994) with42 U.S.C. § 2000e-2(a)(2) (1994). Because Francis W. Parker School an d Ellis were disparate impact actions involving applicants for employment, the plaintiffs in those cases were limited to relying o n § 623(a)(1), which covers employees and applicants.
In this case, because Smith was an employee of the city, h e may rely on either subsection of section 623(a). Our opinion i n Leftwich

(involving an applica nt) 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 co ntext 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 § 62 3(a) on which the disparate impact action was premised.
-6- 34 (3d Cir.) (opinionof 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

. Calif ornia Pub. Utils. Comm'n , 67 F.3d 1470, 1474 (9th Cir. 1995 ) (sugg esting disparate impact theory is cognizable); Ellis v. Unite d Airlines, Inc. , 73 F.3d 999, 1007-10 & n.12 (10t h Cir.) (holding disparate impact theory not cognizable under § 623(a)(1) and suggesting it is no t cognizable under § 623(a)(2)), cert. denied , 116 S. Ct. 2500 (1996). 2
Our opinion in Houghton , however, postdated Hazen Paper and con tinued to recognize the viability of disparate impact actions under the ADEA. Se e Houghton , 38 F.3d at 958-59. As a result, even if we believed that Hazen 3 Paper ca st doubt on the validity of Leftwichand Nolting , Houghto n 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). Neverthe less, the EEOC, as amicus curiae and in i ts regulations interpreting the ADEA, suggests that th e business necessity defense is the same under Title VII and th e ADEA. See 29 C.F.R. § 1625.7(d)-(e) (1995). For reasons th at will be made clear in the text of t his opinion, we need not decide this issue in this case.
-7- whichwe follow absent a "clear indication" that it has been overruled

. FDIC v. Bowles Livest ock Comm'n Co. , 937 F.2d 1350, 1354 (8th Cir. 1991). We conclude that disparate impact claims under the ADEA are cognizable.

B.

We assu me, as the District Court did, that Smith has established a prima facie case of disparate impact, that is, that he has demonstrate d "that a facially neut ral employment practice actually operates to exclude froma 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 defe nse is derived in part from the cases in which the Supreme Court developed the d isparate impact doctrine under Title VII, see , e.g. , Dothard v. Rawlinson , 433 U.S. 321, 332 n.14 (19 77) (physical requirements for prison guards with disparate impact on women "must be shown to b e necessary to safe and efficient job performance"), and in part from a provision of the ADEA which states that an employment practice is no t unlawful "where the differentiation is based on reasonable factors other than age." 29 U.S.C. § 623(f)(1) (19 94). We recognize that in the Title 4 VII co ntext the business necessity defense has undergone severa l transformations in recent years. See Wards Cove Packing Co. v. Atonio , 49 0 U.S. 642, 659 (1989) (placing burden of persuasion on

### -8-

plaintiff and broadening the defense); Civil Rights Act of 1991, Pub. L. No. 102-166, § 105, 105 Stat. 1071, 1074-75 (codified at 42 U.S.C. § 2000e

2(k) (1994)) (attempt ing to restore pre- Wards Cove law). Our most recent ADEA disparate impact opinion reflected the shift to the Wards Cov e standard, see Houghton , 38 F.3d at 959, but we have not yet considere d whether th e Civil Rights Act of 1991 has affected the ADEA's busines s necessity defense.

We need not decide that issue in this case. In granting summar y judgm ent for the city, the District Court clearly placed the burden o f persuasion on the city in a manner consistent with the pre- Wards Cov e standar d. For purposes of our analysis, we therefore assume, withou t deciding, that pre- Wards Cove law--the law most favorable to Smith--applie s here. In the context of a physical job requirement, the pre- Wards Cov e business necessity defense places the burden of persuasion on the defendan t to show that the requirement has "a manifest relationship to the employmen t 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 McCos h 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); Fit zpatrick v. City of Atlanta , 2 F.3d 1112, 1119 (11th Cir. 1993 ) (holdi ng, in Title VII case involving firefighters and SCBAs, tha t "[m]easures demonstra bly 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 par ty with the burden of persuasion
on the business necessity defense, was required to support its summar y judgment motion "with evidence that would entitl e 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 politica l subdivisions from coverage of Occupational Safety and Health Act). The Iowa occupational safety a nd health laws do apply to the city, however, Iowa Code Ann. § 88.3(5) (West Supp. 1996), and th e applicable state regulations adopt the federal regulations b y reference. Iowa Admin. Code r. 347-10.20(88) (1996).
-9- 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 conc lude that the city met its burden on the business necessit y defense by supportingits motion with evidence that would entitle it to a dir ected verdict if not controverted by evidence sufficient to create a juryissue. On the job-relatedness issue, the city presented undisputed eviden ce that a captain is frequently involved in fire suppressio n activities when a company arrives at a fire scene and that the captai n wears a SCBA under th ose circumstances. Joint Appendix (J.A.) at 157-59, 302

. This evidence alone is sufficient to carry the city's burden o f showing that its fitness standard has a "manifest relationship" to th e position in question. Griggs , 401 U.S. at 432.

The other element of the defense is whether the standard is nec essary to safe and effective job performance. The city's evidence on this issue is more complicated and begins with some of the extensive regulation s gove rning the manner in which the city operates its fire department

. Federal regulations require the fire department to provide firefighter s with SCBAs "when such equipment is necessary to protect the health of the emplo yee." 29 C.F.R. § 1910.134(a)(2) (1995). The city may not assig n 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 Ame rican National Standards Institute (ANSI) standard on physica l 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%.
-10- testing as a screening mechanism for SCBA users and suggests stress testin g for persons who use S CBAs under strenuous conditions. J.A. at 338. ANSI recommends a 70% FEV threshold for spirometry testing but does not specify 1 an acceptable result for stress testing. Id.

To reach its determination that a VO max of 33.5 w as the appropriate 2 threshold for stress testing, the city relied on a review of the relevant medical literature by Dr. Zorn. A number of studies suggest tha t firefighters consume between 25 and 35 milliliters of oxygen per kilogram per minute while suppressing a fire. J.A. at 200. One study in particula r involved 150 firefighters performing a series of tasks in a simulated fire

suppressi on environment. Id. at 212-22. The authors of that stud y deter mined that a VO max of 33.5 was the minimum required to allow th e 2 firefighters to complete the simulation successfully. Id. at 218. Th e authors then repeated the simulation with 32 add itional firefighters. Id. Of those with a VO max less than 33.5, only 40% (4 of 10) completed th e 2 simulationsuccessfully. Id. On the other hand, of those with a VO max 2 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
wa s the minimum satisfactory VO max requirement for the Des Moine s 2 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 wer e uncontroverted. See Firemen's Fund , 8 F.3d at 1310.

We now tu rn to the evidence presented by Smith in opposition to the city's summary judgme nt motion. Smith does not dispute that firefighting is a stre nuous occupation or that the city has a legitimate interest i n determining whether its employees can

### -11-

perfo rmthose duties safely. On the issue of job-relatedness, he doe s arg ue that as a captain, he did not perform the same duties as a lin e 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 an d 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
wou ld "[v]ery seldom" perform tasks like knocking down walls, id. , thi s evidence is insufficient to create a jury issue on job-relatedness in ligh t 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 an d effective job perform ance, Smith argues that the opinions of the panel of physicians who determined he was not disabled for purposes of disability ben efits, plus the opinion of Dr. Glazier that Smith is capable o f performing exertional tasks while wearing a SCBA , create a fact issue. We disa gree. We note first that these physicians examined Smith in th e context o f a disability retirement proceeding. A member of a police o r fire dep artment in Iowa is eligible for disability benefits if th e examin ing physicians certify "that the member is mentally or physicall y incapa citated for further performance of duty, that the incapacity i s likely to be permanent, and that the member shou ld be retired." Iowa Code Ann. § 411.6(3) (West Supp. 1996). Even though the disabilit y 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 b e reinstated fully to work
as a firefighter," J.A. at 360), the physicians' conclusions lack probativ e value on the relevant issue in this case: whether the fitness standard se t by the city is necessary to safe and efficient job performance. Th e 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 i n setting the 33.5 VO max standard. They concluded: 2 

### Dr. Moseley and I do not believe that this stud y justifies identifying Mr. Smit h as unable to fulfill the duties of a firefighter. In fact, Mr. Smith's exercise cap acitywas 110% [of] predicted for his age and size

. I t herefore believe that Mr. Smith is fully capable o f working as a firefighter and r ecommend that he return to work.
J.A. at 361. This evidence comes closer to addressing th e necessityof the 33.5 standard, but it is ultimately only a n opinion that Smith be permitted an exception to the fir e department's policy. The phys icians do not suggest that the study is inaccurate or that the fitness standard is unreasonable. W e als o note that whether Smith's performance on the stress tes t exceeded the physicians' expectations is irrelevant.
-12- Smith' s entitlement to disability benefits, do not appear to hav e considered the solid scientific studies on which the city based the 33.5 VO max standard. Such evidence affords no basis for allowing a jury to 2 7 second-guess the city 's well-supported and reasonable conclusion that, in the interest of the safety of its firefighters (including captains) an d their effective job performance, the appropriate place to draw the line wa s at a VO max of 33.5. We thus conclude that Smith has not demonstrated a

2 factual dispute on this issue.

To su mmarize our conclusions: fitness and the ability to perfor m while wearing a SCBA are undoubtedly job-related and necessary requirement s for firefighters. The dispute in this case is not whether firefighter s must be physically fit, but how fitness can be m ost appropriately measured and how the city may distinguish those firefighters who are probabl y capable of performing the job from those firefig hters who are probably not capable. The city has not proceeded arbitrarily , but rather has carefully developed a standard based upon the available me dical literature and using the

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

### distinguishable from Dothard , where the job (prison guard) r equired a degree of strength but the defendants did not show an y co rrelation between the requirements (minimum height and weight ) and th e strength required for the job. See Dothard , 433 U.S. a t 331.
-13- 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 VO 2 max above 33.5 can perform fire suppression task s successfully, but a much lower proportion of those with a VO max below 33.5 can do so. Smit h 2 argues, and the physicians' evaluations suggest, that some firefighter s with lower VO max scores--Smith in particular--may be able to perfor m 2 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 th e chance that he is fit for duty when solid scient ific studies indicate that persons with test results similar to his are not. The lack of a precise or universally perfec t fit between a job requirement and actual effective per formance is not fatal to a claim of business necessity, particularl y 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 (lac k 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 t he 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

### -14-

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

We ha ve not previously had the occasion to determine whether thi s branch of the Title VII disparate impact doctrine applies to the ADEA. Fo r purposes of this appeal, however, we assume that the Title VII framework applies: once the de fendant has met its burden of demonstrating business necessity, the plaintiff may still prevail by showing "that other selectio n device s without a similar discriminatory effect would also serve th e employer's legitimate interest in efficient and trustworthy workmanship." Doth ard , 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 thi s argument before the District Court. We will not reverse a grant of summar y jud gment 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 a rgument were proper, however, Smith has not made any showing that his prop osed 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 asserte d that he would be able to pass his proposed battery of tests, but he has n ot shown the effect of his systemon 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 is sue of material fact on this branch of the disparate impac t doctrine.

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

### -15- The ADA prohibits employers from discriminating 'against a qu alified individual with a disability because of th e 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 wit hin 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 wa s terminated because of his disability.

Wooten v. Farmland Foods , 58 F.3d 382, 385 (8th Cir. 1995). The AD A 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 fo r disability retirement on his behalf, Smith claims that the city regards hi m
as having a disability. The parties agree that Smith is not in fac t disabled. Amend. Compl. ¶ 26; Answer ¶ 20.
We reject ed a claim similar to Smith's in Wooten . In that case, we recognized that "working" is a "major life activity" that, if substantiall y limited by an impairment, brings an individual within the protection of th e 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" an d
rec ognized that "[a]n impairment that disqualifies a person from only a narrow range of jobs is not considered a substan tially limiting one." Id. at 386 (quotation omitted); see also 29 C.F.R. § 1630.2(j)(3)(i) (1996 ) ("The inability to pe rform a single, particular job does not constitute a substantial limitatio n in the major life activity of working."). We then applied these principles to a "regarded as" situation in which Woote n claimed that his former employer regarded

### -16-

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

Smith's claim fails for the same rea sons that Wooten's did. Viewing the recor d in the light most favorable to Smith, we see that the cit y regarded Smith as unable to perform the duties of a firefighter. But Smit h does not suggest that the city believed he was unable to perform othe r jobs, and he has presented no evidence to support that proposition. I n fact, in a letter to Smith in December 1993, the fire chief recognized tha t Smith had gone back to school and had taken another job while he was o n sick leave from the fire department. J.A. at 26 7. Smith failed to create
a gen uine issue of fact as to whether the city regarded him as having a disability for purposes of the ADA, and the District Court properly grante d 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 ag e discr imination claim. I certainly agree that a high level of physica l fitness i s related to the job of a firefighter and that the city mus t 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 duti es of a fire captain. Nor has the city produced sufficient evidence to support a finding that it s policy of dismissing all employees who fail to meet the standard i s necessary for their safe and efficient job performance. Moreover, contrar y to the majority's position, the opinions of four

### -17-

physicians who independently examined Smith and determined that he was fit to perform his firefighting duties, directly rebut the necessity of th e city's policy. At a minimum, therefore, I do not agree that summar y judgme nt was appropriate for Smith's age discrimination claim and woul d remand to the district court for a full trial on the merits.
To prevail in its business necessity defense, the city must validate its fi tness test for job-relatedness to the particular skills an d 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 fitnes s 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 h is review of a report of a study in which he did not partici pate. The study tested the ability of a sample group o f firefighters to complete a series of tasks that were "designed to simulate the dur ation, intensity, and types of tasks that are performed durin g firefighting." (J.A. at 215.) As the majority states, a fire captain is frequently involved i n fire suppression activities when a company arrives at a fire scene. Yet , as both Chief Phillips and Chief Morgan testified,
a fire ca ptain spends much less time in the structure fighting the fir e than f irefighters and the captain's main role is directing, no t participating in, the fire suppression. (J.A. at 151, 170.) Dr. Zor n acknow ledged that it would be "reasonable" to adjust the fitnes s requirements for different positions, depending on the amount of time each position spends suppressing the fire. He left t hose decisions to the fire dep artment. (J.A. at 130.) The city has made no attempt to link it s fitness standard specifically to

### -18-

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

Even if a fitness standard for firefighters could justify th e dismissal of a fire captain, there is conflicting evidence in the record as to whether the test used and the specific fit ness level set by the city
are reasonable. After reviewing the study and discussing its findings wit h 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 fulfi ll the duties of a firefighter." (J.A. at 361.) Dr. Schwart z testified that the VO minimums set by the city are unreasonable and that, 2 in his opinion, the c ity should not rely on a single test for its fitness evaluation. (J.A. at 179-80.) With this conflicting evidence as to the valida tion of the standard, Smith's claim should have survived summar y judgment.

In addition to the insufficient evidence of a "manifest relatio nship" between the fitness standard and Smith's job requirements, the city has no t demonstrated the nece ssity of its policy requiring dismissal of all those who fail the fitness test. The city argues that its policy is necessary becaus e federal regulations and ANSI recommendations require fir e departm ents to ensure the safety of its employees. Neither authorit y requires as strict a policy as the city has adopted for its firefighters, however. Moreover, the study on which the city relies for its standar d does not recommend th at employees failing to meet the standards be fired. Rather, the study suggests that employees who ca nnot meet the standards be given a specialized exercise regime to improve their levels o f 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 b e vulnerable to legal challenge. Initiating

### -19- entry expectations at a level allowing for a reason able decline withadvancing age is one step but this should be accompanied by weight control, exercise, and smoking cessation program s with periodic individualized assessment.

(J.A. at 221.)

In a letter to Dr. Zorn, Sothmann recommends:

a proactive approach where individuals below the expectatio n are g iven time to improve through an established polic y negotiated by concerned parties (e.g. administration, union , medical, human rights). An unwillingness to adhere or failure to achieve the expectati on should be treated on a case by case basis with additional information to decide employmen t 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 employee s an opportunity to improve their physical condition.
To further rebut the necessity of th e city's fitness standard, Smith has presented substan tial evidence that, despite failing the city's test, he was fit to perform firefighting duties. Dr. Glazier, who examined Smit h to provide a second opinion, stated that based on spirometric findings , "[Smit h] 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 onl y that Smith was not di sabled but also that he was fit to return to work as a firefighter. As th e EEOC asserted in its amicus brief, the opinions of the four doctors that Smith's cardiopulmonary capacity would not prevent himfrom performing the duties of his job safely and efficiently i s suf ficient to create a triable issue of fact as to whether the city' s standard is justified by business necessity.

The majo rity characterizes the dispute in this case as how fitnes s
can be "most appropriately measured." Rather, the real dispute is whethe r the city's policy, which has a disparate impact on persons protected by th e 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 elemen ts of the business necessity defense. Thus, Smith's ag e discrimination claim should have survived summary judgment.

A true copy.

Attest:

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