United States Court of Appeals

For the First Circuit

No. 00-2347

SIMONNE PHELPS,

Plaintiff, Appellant,

v.

OPTIMA HEALTH, INC. AND

CATHOLIC MEDICAL CENTER,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

Before

Torruella, Chief Judge,

Bownes, Senior Circuit Judge,

and Boudin, Circuit Judge.

Sheila O. Zakre, was on brief, for appellant.

David W. McGrath, with whom Peter S. Cowan and Sheehan Phinney

Bass + Green, P.A., were on brief, for appellees.

May 30, 2001
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1 Appellee CMC is a subsidiary of appellee Optima Health, Inc.

(Optima).

2 Claims under Title I of the ADA and § 504 of the Rehabilitation Act

are analyzed under the same standards. EEOC v. Amego, Inc., 110 F.3d

135, 143 (1st Cir. 1997).

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TORRUELLA, Chief Judge. Appellant Simonne Phelps claims that

she was dismissed from her nursing position at the Catholic Medical

Center (CMC)1 in violation of Title I of the Americans with Disabilities

Act (ADA), 42 U.S.C. § 12101 et seq., and § 504 of the Rehabilitation

Act, 29 U.S.C. § 794(a).

2 The district court ruled on summary judgment

that Phelps was not a "qualified individual with a disability" because

she could not perform the "essential functions" of her job "with or

without reasonable accommodation." Phelps v. Optima Health, Inc., Civ.

No. 99-227-JD, 2000 WL 1513782 (D.N.H. Sept. 15, 2000). We affirm.

BACKGROUND

The following facts are summarized in the light most

favorable to the appellant. Greenwald v. Chase Manhattan Mortgage

Corp., 214 F.3d 76, 78 (1st Cir. 2001). Phelps worked as a staff nurse

for CMC from 1979 until 1983, at which point she injured her back at

work and, as a result, discontinued employment there. Since then, she

has been restricted from lifting more than fifteen to twenty pounds at

a time. In 1989, CMC rehired Phelps as a "per diem relief nurse" in

the rehabilitation unit. Because Phelps's disability prevented her

from performing the normal tasks of a staff nurse, the manager of the
3 Phelps later conceded that she had asked the doctor for an optimistic

evaluation of her physical limitations; in actuality, she could lift

twenty pounds only "occasionally" rather than "frequently."

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rehabilitation unit, Lorraine Simon, created the unique position of

"medication nurse" for her. As a medication nurse, Phelps was

primarily responsible for the delivery of medicine, as well as for

other tasks that did not involve lifting heavy objects.

As a result of a temporary shortage of nurses, Phelps stopped

being a medication nurse and began to undertake some patient care in

early 1995. Phelps remained unable to fulfill all the duties of a

typical staff nurse, so she shared a patient load with her sister,

Suzanne Lemire (who was also employed as a nurse in the rehabilitation

unit at CMC). If Lemire was unavailable or otherwise occupied, other

nurses would undertake lifting tasks. Although this job-sharing

arrangement was never officially reported to either the Employee Health

Department or the Human Resources Department at CMC, it was

unofficially approved by Simon.

In June of 1997, Jeanne Wolfendale replaced Simon as the

nurse manager for the rehabilitation unit. Wolfendale asked Phelps to

provide a more recent physician's report on the extent of her physical

restrictions. The report indicated that Phelps could lift twenty

pounds frequently, but was unable to lift fifty pounds at all.3

Wolfendale concluded that, lacking the ability to lift fifty pounds,

Phelps was unable to perform the essential functions of the clinical
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nurse position. Phelps was therefore dismissed from her position in

the rehabilitation unit on October 27, 1997, but remained employed by

CMC.

Immediately after Phelps was notified of her removal from the

rehabilitation unit, she met with human resources manager Vicki

L'Heureux. L'Heureux reviewed the available positions both at CMC and

elsewhere in the Optima system, explained the application process for

an internal transfer to a new position, and offered to help Phelps find

a new position that was compatible with her physical limitations.

Phelps indicated that any position would have to have the same

flexibility as to scheduling and the same level of pay that she had at

the rehabilitation unit. CMC terminated Phelps on February 25, 1998,

without having employed her in a new position.

DISCUSSION

To state a prima facie claim of disability discrimination

under the ADA, a plaintiff must prove by a preponderance of the

evidence that: (1) she was disabled within the meaning of the ADA; (2)

she was a qualified individual; and (3) she was discharged because of

her disability. Ward v. Mass. Health Research Inst., Inc., 209 F.3d

29, 32-33 (1st Cir. 2000). The parties agree that Phelps was disabled

within the meaning of the ADA (so we need not decide the issue) and

that she was discharged because of her disability. However, appellees
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argue, and the district court held, that Phelps was not a qualified

individual under the ADA.

A qualified individual under the ADA is one "able to perform

the essential functions of [her position] with or without reasonable

accommodation." Id. at 33. Our analysis of whether an individual is

qualified occurs in two steps: first, whether the individual can

perform the essential functions of her position; and second, if she is

unable to perform those essential functions, whether any reasonable

accommodation by her employer would allow her to do so. Id.

A. Lifting as an Essential Function of Phelps's Position

The district court held that the ability to lift fifty pounds

on a consistent basis was an essential function of the clinical nurse

position. Phelps does not disagree with this determination, nor does

she suggest that the court erred in its conclusion that she was unable

to lift that amount of weight on a consistent basis. Instead, she

argues that she was not technically a clinical nurse, but that she held

a nursing position that had been created specifically for her physical

limitations. The district court found no evidentiary support for such

an argument: "It appears to be undisputed that Phelps was working in

a clinical nurse I position, shared with her sister, at the time her

employment was terminated." Phelps, 2000 WL 1513782, at *3. The

evidence overwhelmingly supports the district court's conclusion.
4 After reading the written job description for clinical nurse I,

Phelps testified that "a lot of it [was] very familiar to [her] because

that's what an RN does [; i.e., the responsibilities described] are the

normal functions of an RN [in] the [rehabilitation unit]."

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First, Phelps testified that she was no longer a medication

nurse at the time of her termination, and that although she had not

considered what her job description was at the time of her termination,

she "assume[d] [that she] was a staff RN." Phelps then indicated that

the technical job description "clinical nurse I" was essentially

synonymous with the shorthand "staff nurse."4 Second, CMC Human

Resources Manager Mary Ann Flatten testified that Human Resources had

to approve changes to job descriptions or the creation of new

positions. It is undisputed that Human Resources never approved, nor

was even aware of, the altered nurse position that Phelps describes.

All of the differences between her position and that of the other

nurses were a result of understandings between Phelps, Simon, and other

nurses in the rehabilitation unit, and none were in writing. Third,

Phelps testified that there were occasions in which nurses other than

her sister had to assist her in nursing duties. The fact that Phelps

and Lemire would occasionally work on different shifts suggests that

there was no formal and permanent job-sharing arrangement. In short,

the evidence clearly indicates that Phelps held the position of

clinical nurse, albeit with unwritten modifications aimed at allowing

her to fulfill most job duties despite her disability.
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Although this Court has not yet addressed the issue, several

other courts have indicated that -- even when an employer and employee

have made arrangements to account for the employee's disability -- a

court must evaluate the essential functions of the job without

considering the effect of the special arrangements. See, e.g., Basith

v. Cook County, 241 F.3d 919, 930 (7th Cir. 2001) (delivery of

medicine remained essential function of job despite special assignment

allowing employee not to deliver medicine for period of time);

Pickering v. City of Atlanta, 75 F. Supp. 2d 1374, 1378-79 (N.D. Ga.

1999) (temporary assignment of prison guard to "light duty" because of

her disability does not change essential functions of prison guard

position). The fact that an employee might only be assigned to certain

aspects of a multi-task job does not necessarily mean that those tasks

to which she was not assigned are not essential. Anderson v. Coors

Brewing Co., 181 F.3d 1171, 1175-76 (10th Cir. 1999) (relevant

functions are those of "TPO" position for which employee was hired, as

opposed to can-sorter position to which she was assigned); Miller v.

Ill. Dep't of Corr., 107 F.3d 483, 485 (7th Cir. 1997) (essential

functions of prison guard position included all functions required of

prison guards, even when plaintiff had been allowed to rotate only

between certain assignments).

Phelps's basic counter-argument is that the accommodations

offered by Simon, her sister, and the rest of the nursing staff
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distinguished the essential functions of Phelps's position from those

of the other nurses; i.e., that for Phelps's nursing position alone,

lifting was not an essential function. However, we agree with the

Seventh Circuit that evidence that accommodations were made so that an

employee could avoid a particular task "merely shows the job could be

restructured, not that [the function] was non-essential." Basith, 241

F.3d at 930. To find otherwise would unacceptably punish employers

from doing more than the ADA requires, and might discourage such an

undertaking on the part of employers. See Laurin v. Providence Hosp.,

150 F.3d 52, 60-61 (1st Cir. 1998); Sieberns v. Wal-Mart Stores, Inc.,

125 F.3d 1019, 1023 (7th Cir. 1997); Holbrook v. City of Alpharetta,

112 F.3d 1522, 1528 (11th Cir. 1997); Vande Zande v. Wis. Dep't of

Admin., 44 F.3d 538, 545 (7th Cir. 1995). In short, even though her

co-workers had allowed Phelps to avoid having to lift more than fifty

pounds, the ability to do so remained an essential function of her

position.

B. Reasonable Accommodation

Having found that the ability to lift fifty pounds was an

essential function of the position held by Phelps at the time of her

termination, we next ask whether any reasonable accommodation on the

part of her employer would allow Phelps to perform that function.

Feliciano v. Rhode Island, 160 F.3d 780, 786 (1st Cir. 1998). The

burden is on Phelps to show the existence of a reasonable
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accommodation. Id. (citing Barnett v. U.S. Air, Inc., 157 F.3d 744,

748-49 (9th Cir. 1998)). She has not done so.

First, appellant contends that it would have been a

reasonable accommodation to allow her to continue sharing patient

lifting duties with other nurses. Although a reasonable accommodation

may include job restructuring, 42 U.S.C. § 12111(9)(B), an employer

need not exempt an employee from performing essential functions, nor

need it reallocate essential functions to other employees. Feliciano,

160 F.3d at 785; Soto-Ocasio v. Fed. Express Corp., 150 F.3d 14, 20

(1st Cir. 1998). Appellees therefore did not have to allow Phelps to

engage in job-sharing as a reasonable accommodation. The fact that

appellees previously allowed Phelps to engage in a job-sharing

arrangement does not obligate them to continue providing such an

accommodation. See, e.g., Laurin, 150 F.3d at 60-61; Holbrook, 112

F.3d at 1527. Again, to find otherwise would discourage employers from

granting employees any accommodations beyond those required by the ADA.

Laurin, 150 F.3d at 60-61.

Second, Phelps suggests that it would have been a reasonable

accommodation for appellees to allow her to return to her medicine

nurse position. Reasonable accommodation may include "reassignment to

a vacant position." 42 U.S.C. § 12111(9)(B); Feliciano, 160 F.3d at

786; Criado v. IBM Corp., 145 F.3d 437, 443 (1st Cir. 1998). However,

appellant bears the burden of proof in showing that such a vacant
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position exists. Feliciano, 160 F.3d at 786-87. The only testimony in

the record indicated that the position no longer existed in 1997; that

evidence was sufficient for summary judgment in favor of appellees. An

employer is not required by the ADA to create a new job for an

employee, nor to re-establish a position that no longer exists.

Hoskins v. Oakland County Sheriff's Dep't, 227 F.3d 719, 730 (6th Cir.

2000); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1305 (D.C. Cir. 1998);

Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 697 (7th Cir. 1998).

C. The Interactive Process

Phelps also argues that she was denied the opportunity to

investigate other vacant positions for which she was qualified because

appellees failed to engage in an interactive process to determine

appropriate accommodation. Although the EEOC regulations that

implement the ADA do not mandate that an employer provide an

interactive process, see Jacques v. Clean-Up Group, Inc., 96 F.3d 506,

513-14 (1st Cir. 1996), they do suggest that "it may be necessary for

the covered entity to initiate an informal, interactive process with

the qualified individual," 29 C.F.R. § 1630.2(o)(iii). We have said

that "[t]here may well be situations in which the employer's failure to

engage in an informal interactive process would constitute a failure to

provide reasonable accommodation that amounts to a violation of the

ADA." Jacques, 96 F.3d at 515. However, even if a fully realized

interactive process would have been successful in finding a new
5 The district court did not evaluate the quality of the interactive

process at any great length because it concluded that Phelps had not

met her burden of showing that a vacant position for which she was

qualified existed. Phelps, 2000 WL 1513782, at *5; see also Donahue v.

Consol. Rail Corp., 224 F.3d 226, 233 (3d Cir. 2000) ("[I]t falls to

the employee to make at least a facial showing that there were vacant,

funded positions whose essential functions he was capable of

performing.") (quoting Jones v. United Parcel Serv., 214 F.3d 402, 407

(3d Cir. 2000)); Cravens v. Blue Cross & Blue Shield, 214 F.3d 1011,

1021 (3d Cir. 2000) (placing such a burden on the plaintiff). 

6 We reproduce here the relevant deposition testimony indicating

Phelps's lack of good faith in participating in the interactive

process:

Q: "Do you recall [L'Heureux] telling you that you shared

some responsibility for trying to find you a new position in

the system?"

A: "Correct."

Q: "Did you agree with that?"

A: "No, I didn't."

Q: "You felt it was strictly up to the hospital to find a

place for you?"

A: "I felt they displaced me and it was their job to find

another position within the hospital facility."

Q: "So you didn't feel like you had an obligation to

interact with them in that process?"

A: "Not in this situation. I didn't ask to be terminated."

Q: "And so you didn't interact with them in this process?"

A: "Correct."

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position for Phelps,5 she concedes that it was she who failed to

cooperate in such a process.6 See Taylor v. Phoenixville Sch. Dist.,

184 F.3d 296, 311 (3d Cir. 1999) (both parties have duty to engage in
7 Phelps partly premises her argument on the fact that she was

dismissed from the rehabilitation unit on October 27, 1997, immediately

prior to meeting with human resources personnel. She asserts that,

once she had been dismissed, CMC could not have engaged in a true

interactive process eventually leading to a new position because Phelps

was no longer employed. However, although Phelps was dismissed from

the rehabilitation unit in October of 1997, she was not terminated as

a CMC employee until February of 1998. We cannot say that appellees'

decision to remove Phelps from a job which she was physically incapable

of performing, without actual termination of her employment,

constitutes a failure to engage in the interactive process.

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interactive process in good faith); Beck v. Univ. of Wis. Bd. of

Regents, 75 F.3d 1130, 1135-37 (7th Cir. 1996) (employee's

unwillingness to cooperate in interactive process prevents them from

premising liability on its failure); see also Jacques, 96 F.3d at 514

(citing Beck and Taylor with approval). Evidence of the details of

Phelps's post-dismissal conversations with human resources personnel

confirms that Phelps was not actively engaged in the interactive

process: she turned down several job opportunities suggested by

L'Heureux and placed significant conditions on her reassignment

severely limiting CMC's flexibility. Moreover, the evidence indicates

that CMC offered Phelps several potential alternatives, began the

interactive process immediately after Phelps's dismissal,7 returned her

phone calls and letters promptly, and generally acted in good faith.

We therefore cannot find that the lack of success of the interactive

process in this case creates any liability under the ADA. See Beck, 75

F.3d at 1137 ("Liability for failure to provide reasonable

accommodations ensues only where the employer bears responsibility for
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the breakdown. But where, as here, the employer does not obstruct the

process, but instead makes reasonable efforts both to communicate with

the employee and provide accommodations based on the information it

possessed, ADA liability simply does not follow.").

CONCLUSION

Phelps has not presented sufficient evidence to meet her

burden of showing that she could perform the essential functions of her

position, with or without reasonable accommodation. The grant of

summary judgment is affirmed.