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. e du/thir dc ir c uit_1998/81Filed April 15, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-7174

STACY L. DEANE, Appellant

v.

POCONO MEDICAL CENTER

Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civ. Action No. 94-1139)

Argued: January 31, 1997

Before: BECKER and ROTH, Circuit Judges, and BARRY, District Judge.*

Reargued En Banc: January 29, 1998

Before: SLOVITER, Chief Judge, BECKER, STAPLETON,
MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS,** McKEE, and RENDELL, Circuit Judges.

(Filed April 15, 1998)

___________________________________________________ ______________ *Honorable Maryanne Trump Barry, United States Dist rict Judge for the District of New Jersey, sitting by designation.

**Judge Lewis heard argument in this matter but was unable to clear the opinion due to illness.DEBRA A. JENSEN, ESQUIRE

(Argued)
DANIEL BENCIVENGA, ESQUIRE Galfand, Berger, Lurie, Brigham, Jacobs, Swan, Jurewicz & Jensen,

LTD. Suite 2300, 1818 Market Street Philadelphia, PA 19103-3623 Attorneys for Appellant Stacy L.

Deane

SIDNEY R. STEINBERG, ESQUIRE (Argued) Post & Schell, P.C. 1800 JFK Boulevard, 19th Floor Philadelphia, PA 19103 Attorneys for Appellee

Pocono Medical Center

OPINION OF THE COURT

BECKER, Chief Judge.***

This is an appeal by Stacy L. Deane from an order o f the district court granting summary judgment to her for mer employer, Pocono Medical Center ("PMC"), on Deane's claim under the Americans with Disabilities Act ("ADA" or the "Act"), 42 U.S.C. S 1201 et seq. In enacting the AD A, Congress intended that the scope of the Act would e xtend not only to those who are actually disabled, but al so to individuals wrongly regarded by employers as being disabled. Deane, a registered nurse, sued PMC under the ADA as such a "regarded as" plaintiff to redress PM C's

failure to accommodate her in a manner that would e nable her to retain her position following a work-related injury that affected her ability to do heavy lifting.1 The case came

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***Honorable Edward R. Becker, United States Circui t Judge for the Third Circuit, assumed Chief Judge status on Februa ry 1, 1998. 1. Deane also alleges that PMC improperly terminate d her employment in violation of the Rehabilitation Act of 1973, 29 U.S .C. SS 701 et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 P a. Cons. Stat. Ann. SS 951 et seq. Those claims are not before us.

2before the en banc court to settle the question tha t divided

the original panel -- whether "regarded as" plainti ffs, in order to be considered qualified under the ADA, mus t show that they are able to perform all of the functions of the relevant position or just the essential functions, with or without accommodation. The panel decided that they must be able to perform all of the functions. Before the en banc court, neither party supported that position, and w e now reject it, concluding that the plain language of th e ADA requires proof only of a plaintiff 's ability to pe rform a position's essential functions.

This conclusion forces us to determine whether Dean e has adduced sufficient evidence to create a genuine issue of material fact with respect to two elements of her p rima facie case: (1) whether PMC misperceived Deane as being disabled; and (2) whether Deane is a "qualified ind ividual", a decision that turns on whether lifting is an esse ntial function of nursing at PMC. Because we conclude tha t Deane has adduced sufficient evidence regarding bot h of these matters, we hold that summary judgment was inappropriate. Accordingly, the judgment of the dis trict

court will be vacated and the case remanded for fur ther proceedings.

The panel addressed a second question of much great er difficulty -- whether "regarded as" plaintiffs must be accommodated by their employers within the meaning of the ADA. It may well be, as two members of the pane l concluded, that after the employer is disabused of its improper perception of the individual's disability, there is no reason to afford the individual any special trea tment, and hence the employee is not statutorily entitled to accommodation from the employer. However, as resolu tion of that issue is not necessary to final disposition of this appeal, we will not decide it.

I.

In April 1990, PMC hired Deane as a registered nurs e to work primarily on the medical/surgical floor. On Ju ne 22, 1991, while lifting a resistant patient, she sustai ned a cartilage tear in her right wrist causing her to mi ss

3approximately one year of work. In June 1992, Deane and

Barbara Manges, a nurse assigned to Deane's workers ' compensation case, telephoned PMC and advised Charl ene McCool, PMC's Benefits Coordinator, that Deane inte nded

to return to work with certain restrictions. Accord ing to Deane, she informed McCool that she was unable to l ift more than 15-20 pounds or perform repetitive manual tasks such as typing, but that her physician, Dr. O sterman, had released her to return to "light duty" work.2 D eane further explained to McCool that, if she could not be accommodated in a light duty position on the medical/surgical floor, she was willing to move to another area of the hospital, as long as she could remain i n nursing. Unfortunately, this telephone call was PMC 's only meaningful interaction with Deane during which it c ould have assessed the severity of or possible accommoda tion for her injuries. PMC never requested additional inform ation from Deane or her physicians, and, according to Dea ne, when she subsequently attempted to contact PMC on several occasions, she was treated rudely by McCool and told not to call again.

After speaking with Deane and Manges, McCool advise d Barbara Hann, PMC's Vice President of Human Resourc es, of Deane's request to return to work, of her attend ant work restrictions, and of her stated need for accommodat ion. Shortly after considering the information conveyed by McCool and after comparing it to the job descriptio n of a medical/surgical nurse at PMC, Hann determined that Deane was unable to return to her previous position . Hann then asked Carol Clarke, PMC's Vice President of Nu rsing, and Susan Stine, PMC's Director of Nursing Resource s/

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2. In a letter dated June 8, 1992, the contents of which were communicated by Deane and Manges to McCool during t heir telephone conversation, Dr. Osterman opined as follows:

I do not think [Deane] can return to unrestr icted nursing i.e. I

would place a lifting limit of 20 pounds and a lim it on unrestricted repetitive motion of her wrist. She does bel ieve that she can

return to some nursing and I would agree with this. She has suggested pediatric nursing, neonatal nursing and poss ibly even the cancer unit at the hospital which apparently does n ot involve lifting the patients. All would be acceptable.

4Patient Care Services, to review Deane's request to return

to PMC and to explore possible accommodations for h er. Both Clarke and Stine concluded that Deane could no t be accommodated in her previous job as a nurse on the medical/surgical floor or in any other available po sition at the hospital. Finally, Hann asked Marie Werkheiser, PMC's Nurse Recruiter, whether there were any current or prospective job openings for registered nurses at P MC. According to Werkheiser, there were no such opening s at
that time.

As a result of the collective determination that De ane could not be accommodated in her previous job or in any other available position in the hospital, PMC sent Deane an "exit interview" form on August 7, 1992. On August 10, 1992, Hann notified Deane by telephone that she cou ld not return to work because of her "handicap", and this litigation ensued. In March 1993, Deane accepted a registered nurse position at a non-acute care facil ity, where she remained until May 1993. Deane has been employe d by a different non-acute care facility since July 1993 . Neither of these positions require heavy lifting, bathing p atients, or

the like.

Deane argued to the district court that she was bot h actually disabled as a result of her injury and tha t she was perceived to be so by PMC. On summary judgment, the court rejected both theories and held that Deane wa s neither disabled nor regarded by her employer as be ing disabled and that, even if she were, she failed to meet the statutory definition of a qualified individual with a disability. Deane has not appealed the district cou rt's determination that she was not actually disabled. I ndeed, she now concedes that "[i]n light of the decisional trends in this Circuit and others," she is not now and never was disabled and, consequently, that, but for PMC's err oneous perception of her actual impairment, she would have no claim under the ADA.

What is left, then, are Deane's contentions that sh e was disabled under the terms of the ADA by virtue of th e fact that PMC regarded her limitations as being far wors e than they actually were, that PMC failed to accommodate her lifting restriction, and that she was eventually te rminated

5on account of PMC's perception that she was disable d. In

support of her perception claim, Deane relies on a" laundry list" of PMC's allegedly erroneous perceptions. Acc ording to Deane, PMC believed that she was unable to lift mor e than ten pounds, push or pull anything, assist patients in emergency situations, move or assist patients in th e activities of daily living, perform any patient car e job at PMC or any other hospital, perform CPR, use the res t of her body to assist patients, work with psychiatric pati ents, or use medical equipment. Deane refutes each of these perceptions -- or, in her view, misperceptions-- an d contends that her injury was, in fact, relatively m inor in

nature. Deane further contends that PMC should be h eld responsible for these misperceptions because they w ere the result of PMC's "snap judgment" arrived at without making a good faith analysis, investigation, or assessment of the nature of her injury.

Finally, Deane maintains that she requires and is e ntitled to accommodation for her lifting restriction. In th is regard,

Deane contends that she could be accommodated eithe r in her previous position as a nurse on the medical/sur gical floor or through reassignment to another position t hat would not require heavy lifting. As to the former, Deane has suggested the following accommodations: (1) use of an assistant to help her move or lift patients; (2) implementation of a functional nursing approach, in which nurses would perform only certain types of nursing tasks; and (3) use of a Hoyer lift to move patients. Deane also

maintains that she could have been transferred to a nother unit within the medical center such as the pediatri cs, oncology, or nursery units, which would not have re quired heavy lifting. In the alternative, Deane submits th at she can perform the essential functions of her previous job in the medical/surgical floor without accommodation becaus e lifting is not an essential function of nursing. We set forth our jurisdiction and standard of review in the marg in.3

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3. We have appellate jurisdiction over the district court's grant of summary judgment pursuant to 28 U.S.C. S 1291. Beca use our standard of review is plenary, see Kelly v. Drexel Universit y, 94 F.3d 102, 104 (3d Cir. 1996), we apply the same test the district cou rt should have applied

6II.

The core anti-discrimination section of the ADA pro vides

that:

No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of emp loyees, employee compensation, job training, and oth er terms, conditions, and privileges of employment.

42 U.S.C. S 12112. In order to make out a prima fac ie case under the ADA, a plaintiff must be able to establis h that he or she (1) has a "disability" (2) is a "qualified i ndividual" and (3) has suffered an adverse employment action b ecause of that disability. See Gaul v. Lucent Techs. Inc., 134 F.3d 576, 580 (3d Cir. 1998).

A.

Turning to the first prong of the prima facie case , we must determine whether Deane is disabled under the terms of the Act. The ADA defines a "disability" as:

(A) a physical or mental impairment that sub stantially limits one or more of the major life activit ies of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairm ent.

42 U.S.C. S 12102(2); 29 C.F.R. S 1630.2(g).4 Becau se

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in the first instance. See Olson v. General Electri c Astrospace, 101 F.3d 947, 951 (3d Cir. 1996); Helen L. v. DiDario, 46 F. 3d 325, 329 (3d Cir. 1995). We must determine, therefore, whether the re cord, when viewed in the light most favorable to Deane, shows that th ere is no genuine

issue of material fact and that PMC was entitled to summary judgment as a matter of law. See, e.g., Celotex Corp. v. Cat rett, 477 U.S. 317,

322- 23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S . 242, 249-50 (1986); Olson, 101 F.3d at 951.

4. Because the ADA does not define many of the pert inent terms, we are guided by the Regulations issued by the Equal Emplo yment Opportunity

7Deane concedes that she is not actually disabled, b ut that

she was only "regarded as" being disabled, we direc t our focus to the third tier of the statutory definition . Read in conjunction with the first tier, which defines an a ctual disability, the third tier requires us to determine whether PMC regarded Deane as having an impairment and whet her the impairment, as perceived by PMC, would have substantially limited one or more of Deane's major life activities.5 Deane's actual impairment, therefore, is of no consequence to our analysis.

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Commission ("EEOC") to implement Title I of the Act . See 42 U.S.C. S 12116 (requiring the EEOC to implement said Regul ations); 29 C.F.R. S 1630.2. Regulations such as these are entitled to substantial deference. See Chevron, U.S.A., Inc. v. Natural Resources Defe nse Council, Inc., 467 U.S. 837, 844 (1984); Blum v. Bacon, 457 U.S. 132, 141 (1982); Helen L. v. DiDario, 46 F.3d 325, 331-32 (3d Cir. 1995). 5. With the "regarded as" prong, Congress chose to extend the protections of the ADA to individuals who have no a ctual disability. The primary motivation for the inclusion of mispercepti ons of disabilities in the statutory definition was that "society's accumu lated myths and fears about disability and diseases are as handicapping a s are the physical limitations that flow from actual impairment." See 29 C.F.R. pt. 1630, app. S 1630.2(l) (EEOC's "Interpretive Guidance" to the ADA) (citing School Bd. of Nassau County v. Arline, 480 U.S. 273 , 284 (1987)).

The limited legislative history also confirms that Congress's primary concern in enacting the "regarded as" prong of the ADA was for individuals with no limitations but who, because of some non-limiting impairment, are prevented from obtaining employment as a result of societal prejudices. As the final House Report prov ides:

The rationale for this third test [the "reg arded as" prong] as

used in the Rehabilitation Act of 1973, was artic ulated by the Supreme Court in School Board of Nassau County v. Ar line . The Court noted that although an individual may have an impa irment that does not in fact substantially limit a major life act ivity, the reactions of

others may prove just as disabling. "Such an impair ment might not diminish a person's physical or mental capab ilities, but could nevertheless substantially limit that person 's ability to work as a result of the negative reactions of others t o the impairment."

The Court concluded that, by including this test, "Congress acknowledged that society's accumulated myth s and fears about disability and diseases are as handicapping as are the physical limitations that flow from actual impairment ."

H.R. Rep. No. 101-485(III) (1990) at 30, reprinted in, 1990 U.S.C.C.A.N. 445, 453 ("House Judiciary Report") (footnotes omit ted).8Turning to the EEOC Regulations, they provide that an

individual is "regarded as" being disabled if he or she:

(1) [h]as a physical or mental impairment th at does not substantially limit major life activitie s but is treated by a covered entity as constituting such limitation;

(2) [h]as a physical or mental impairment th at substantially limits major life activities o nly as a result of the attitude of others toward such impair ment; or

(3) [h]as none of the impairments defined in paragraph (h)(1) or (2) of this section but is treated by a covered entity as having a substantially l imiting impairment.6

29 C.F.R. S 1630.2(l). See also H.R. Rep. No. 101-4 85 (II), at 53 (1990) ("House Labor Report"), reprinted in 1990 U.S.C.C.A.N. 303, 335; House Judiciary Report at 29

, reprinted in 1990 U.S.C.C.A.N. at 452. Common to ea ch definition is the requirement that the individual n ot in fact have an impairment that, absent the misperceptions of others, would substantially limit a major life acti vity.

Deane contends that she satisfies the first definit ion because PMC erroneously perceived that the nature a nd extent of her physical impairment "substantially li mited" her ability to "work", which is included within the EEOC's definition of a "major life activity".7 See general ly Olson, 101

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6. 29 C.F.R. S 1630.2(h) defines "physical or menta l impairment" as:

(1) [a]ny physiological disorder, or conditi on, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, muscul oskeletal, special

sense organs, respiratory (including speech organs ), cardiovascular, reproductive, digestive, genito-urinary, hem ic and lymphatic, skin, and endocrine; or

(2) [a]ny mental or psychological disorder, such as mental retardation, organic brain syndrome, emotion al or mental illness, and specific learning disabilities.

7. Major life activities include, but are not limit ed to, "functions such

as caring for oneself, performing manual tasks, walkin g, seeing, hearing, speaking, breathing, learning, and working," see 29 C.F.R. S 1630.2(i), as

9F.3d at 953-55; MacDonald v. Delta Airlines, Inc., 94 F.3d

1437, 1445 (10th Cir. 1996); Bridges v. City of Bos sier, 94 F.3d 329, 333-34 (5th Cir. 1996). The district cour t rejected Deane's perceived disability claim on three grounds . First, the court found, as a matter of undisputed fact, th at PMC regarded Deane's impairment as limiting only her ab ility to work as a nurse on the surgical/medical floor, not her ability to work as a nurse in general. Next, the co urt determined that Deane could not have been generally precluded from working in her field because, follow ing her termination from PMC, she held two positions as a registered nurse. Finally, the court concluded, as a matter of law, that PMC's perception of Deane's impairment was not motivated by "myth, fear or stereotype" and, th erefore, was not actionable under the ADA. We disagree with all

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well as "sitting, standing, lifting, [and] reaching ." 29 C.F.R. pt. 1630, app. S 1630.2(i); House Labor Report at 52, reprint ed in 1990 U.S.C.C.A.N. at 334; House Judiciary Report at 28-2 9, reprinted in 1990

U.S.C.C.A.N. at 451.

Where, as here, the major life activity at issue is working, the term "substantially limited" is defined as "significantl y restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having co mparable training, skills and abilities." Olson, 101 F.3d at 952 (citi ng 29 C.F.R. S 1630.2(j)(3)(i)). Thus, the mere "inability to pe rform a single, particular job does not constitute a substantial limitation in the major life activity of working." Id. In making these determinations, co urts may consider:

(A) [t]he geographical area to which the ind ividual has reasonable

access;

(B) [t]he job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skill s or abilities, within

that geographical area, from which the individual is also disqualified because of the impairment (class of jobs); a nd/or

(C) [t]he job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, s kills or abilities,

within that geographical area, from which the indiv idual is also disqualified because of the impairment (broad range of jo bs in various classes).29 C.F.R. S 1630.2(j)(3)(ii).

10three of the court's rationales, discussing them in reverse

order.

Although the legislative history indicates that Con gress was concerned about eliminating society's myths, fe ars, stereotypes, and prejudices with respect to the dis abled, the EEOC's Regulations and Interpretive Guidance make c lear that even an innocent misperception based on nothin g more than a simple mistake of fact as to the severi ty, or even the very existence, of an individual's impairm ent can be sufficient to satisfy the statutory definition o f a perceived disability. See 29 C.F.R. pt. 1630, app.S 1630.2(l) (describing, as one example of a "regarded as" disa bled employee, an individual with controlled high blood pressure that is not substantially limiting, who nonetheless is reassigned to less strenuous work because of the employer's unsubstantiated fear that the employee w ill suffer a heart attack). Thus, whether or not PMC wa s motivated by myth, fear or prejudice is not determi native of Deane's "regarded as" claim.

The second ground -- that Deane's subsequent employment in the field of nursing demonstrated tha t she was not substantially limited in the major life act ivity of working -- confuses her actual impairment with PMC' s misperception thereof. Deane's subsequent work hist ory could, at most, reflect her lack of an actual disab ility, and it therefore sheds no light whatever on whether, at the time of her termination, PMC regarded her impairment as substantially limiting her ability to work.

Finally, contrary to the district court's conclusio n, Deane has adduced sufficient evidence to create a genuine issue of material fact as to whether PMC regarded her as substantially limited in the major life activity of working. First, there is deposition testimony from PMC offic ials documenting confusion as to the extent of Deane's p hysical capacity, with regard to pushing, pulling, and lift ing. There is also evidence that PMC fundamentally misundersto od and exaggerated the limitations that the wrist inju ry imposed on Deane. Moreover, PMC's apparent misunderstanding is in line with other testimony th at PMC did not evaluate Deane, contact her physicians, or

11independently review her medical records, but rathe r relied

solely on one telephone conversation it had with De ane.

Deane also produced the affidavit and report of Dan iel Rappucci, her vocational expert, who explained the import of PMC's perception of Deane's injury. Rappucci con cluded that, had Deane been impaired to the extent alleged ly perceived by PMC, she would have been precluded fro m consideration for employment, both within her chose n profession and within a wide range of jobs within h er geographic region. Rappucci further opined that Dea ne would have been precluded from performing not only many of the available jobs in service-producing industri es, (including transportation, wholesale/retail, financ e, real estate, hospitality industries, medical services, a nd professional services), which made up 83% of the 41 ,000 non-agricultural jobs in Deane's county of residenc e, but also most of the jobs in the goods-producing indust ries (contract construction, mining, and manufacturing), which comprised the remaining 17% of available positions. PMC counters with the argument that it attempted to accommodate Deane by placing her in other light-dut y positions when and if they became available, and th at this suggests that PMC did not believe Deane to be disab led. PMC submits that its actions indicate only that PMC considered Deane to be incapable of performing cert ain functions that precluded her from returning to nurs ing.

As the preceding discussion makes clear, however, t here are factual disputes over how impaired PMC regarded Deane as being compared with her actual level of impairment, and whether PMC's perception of Deane constituted a "significant[ ] restrict[ion] in [Dea ne's] ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person h aving comparable training, skills and abilities." 29 C.F. R. S 1630.2(j)(3)(i). Deane has thus adduced sufficien t evidence that PMC regarded her as substantially more physica lly impaired than she actually was, and that PMC's misperception, if correct, would satisfy the S 1630 .2(j)(3)(i)

12threshold. Therefore, summary judgment on this issu e was

inappropriate.8

B.

The second element of Deane's prima facie case unde r the ADA requires her to demonstrate that she is a "qual ified

individual". The ADA defines this term as an indivi dual "who, with or without reasonable accommodation, can perform the essential functions of the employment p osition

that such individual holds or desires." 42 U.S.C. S 12111(8). The Interpretive Guidance to the EEOC Regulations divides this inquiry into two prongs. F irst, a

court must determine whether the individual satisfi es the requisite skill, experience, education and other jo b-related requirements of the employment position that such individual holds or desires. See 29 C.F.R. pt. 1630 , app. S 1630.2(m). Second, it must determine whether the individual, with or without reasonable accommodatio n, can perform the essential functions of the position hel d or sought. See id.; see also Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563 (7th Cir. 1996); Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8t h Cir. 1995). Because PMC does not dispute Deane's general qualifications as a registered nurse, we need not d well on the first step of the "qualified individual" analys is.

Determining whether an individual can, with or with out reasonable accommodation, perform the essential fun ctions of the position held or sought, also a two step pro cess, is relatively straightforward. First, a court must con sider whether the individual can perform the essential fu nctions of the job without accommodation. If so, the indivi dual is qualified (and, a fortiori, is not entitled to acco mmodation). If not, then a court must look to whether the indiv idual can perform the essential functions of the job with a r easonable

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8. In a related vein, PMC seems to suggest that the re is no causal relationship between the alleged misperception and Deane's discharge in that PMC took Deane's original statement that she c ould do no lifting and needed major accommodation at face value. Thus, according to PMC, Deane was not discharged because of its misper ception. But there is also a genuine issue of fact here as well, see i nfra Parts II.B.2 and

III.

13accommodation.9 If so, the individual is qualified. If not, the

individual has failed to set out a necessary elemen t of the prima facie case.

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9. "In general, an accommodation is any change in t he work environment or in the way things are customarily done that enab les an individual with a disability to enjoy equal employment opportu nities." 29 C.F.R. pt. 1630, app. S 1630.2(o). The text of the ADA provide s that "reasonable accommodation" may include--

(A) making existing facilities used by emplo yees readily accessible to and usable by individuals with disabiliti es; and

(B) job restructuring, part-time or modified work schedules, reassignment to vacant position, acquisition or modifications of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies , the provision of qualified readers or interpreters, and other similar accommodations

for individuals with disabilities.

42 U.S.C. S 12111(9) (emphasis added).

The EEOC Regulations further define "reasonable acc ommodation" to

include

(i) [m]odifications or adjustments to a job application process

that enable a qualified applicant with a disabili ty to be considered for

the position such applicant desires; or

(ii) [m]odifications or adjustments to the w ork environment, or to

the manner or circumstances under which the position held or desired is customarily performed, that enabl e a qualified

individual with a disability to perform the essential f unctions of that position;

or

(iii) [m]odifications or adjustments that en able a covered entity's employee with a disability to enjoy equal be nefits and privileges

of employment as are enjoyed by its other simil arly situated employees

without disabilities.

29 C.F.R. S 1630.2(o)(1).

An individual's right to reasonable accommodation m ay be subject, however, to certain limitations. For example, an em ployer is not required to provide accommodation if it would impose an "und ue hardship" on the employer as defined in 29 C.F.R. S 1630.2(p). An em ployer also is notrequired to provide accommodation if the individual poses a "direct

threat" to the health or safety of himself/herself or others unless such

accommodation would either eliminate such risk or r educe it to an acceptable level. 29 C.F.R. S 1630.2(r).

14The majority panel opinion, in deciding for PMC,

reasoned that to satisfy the first step, a "regarde d as" plaintiff must make a showing that he or she could perform all the functions of the job (with or without accommodation), not just its essential functions. P MC disassociated itself from the panel's position befo re the en banc court. As this issue is one of statutory const ruction, the "first step in interpreting a statute is to det ermine whether the language at issue has a plain and unambiguous meaning with regard to the particular d ispute in the case." Robinson v. Shell Oil Co., ___ U.S. _ __, 117 S. Ct. 843, 846 (1997).

1.

The ADA prohibits a "covered entity" from discrimin ating against a "qualified individual with a disability." 42 U.S.C. S 12112(a). Section 12111(8), which defines the lat ter term,

reads:

The term "qualified individual with a disabi lity" means an individual with a disability who, with or without reasonable accommodation, can perform the es sential functions of the employment position that su ch individual holds or desires. For the purpose s of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewi ng applicants for the job, this description sha ll be

considered evidence of the essential functio ns of the job.

Section 12111(8) is plain and unambiguous. The firs t sentence of that section, makes it clear that the p hrase

"with or without reasonable accommodation" refers d irectly to "essential functions". Indeed, there is nothing in the sentence, other than "essential functions", to whic h "with

or without reasonable accommodation" could refer. Moreover, nowhere else in the Act does it state tha t, to be a "qualified individual", an individual must prove his or her ability to perform all of the functions of the job, and nowhere in the Act does it distinguish between actu al or

15perceived disabilities in terms of the threshold sh owing of

qualifications. Therefore, if an individual can per form the essential functions of the job without accommodatio n as to those functions, regardless of whether the individu al can perform the other functions of the job (with or wit hout accommodation), that individual is qualified under the ADA.

The history of the ADA confirms this view. In the committee reports that accompanied the ADA, Congres s spoke directly to the qualifications standard adopt ed in the statute. Repeatedly, Congress stated that the quali fications standard turned on the individual's ability to perf orm the "essential functions" of the job. See e.g. , House Labor Report at 55, reprinted in 1990 U.S.C.C.A.N. at 337 ; House Judiciary Report at 32-33, reprinted in 1990 U.S.C. C.A.N. at 455. Congress explained that the Act focused on an individual's ability to perform "essential function s" to ensure that persons with disabilities "not be disqu alified because of the inability to perform non-essential o r marginal functions of the job." House Judiciary Rep ort at 31-32, reprinted in 1990 U.S.C.C.A.N. at 454. As st ated in one committee report, the purpose of the ADA's qualifications standard is to "ensure that employer s can continue to require that all applicants and employe es, including those with disabilities, are able to perf orm the essential functions, i.e., the non-marginal functio ns of the job in question." House Labor Report at 55, reprint ed in 1990 U.S.C.C.A.N. at 337 (emphasis added).

2.

Having rejected the panel's position that Deane nee ded to make a showing that she can perform all of the func tions of her former job, we must now determine whether De ane has, in fact, adduced sufficient evidence to surviv e summary judgment on the question whether she can perform the essential functions of the job without

accommodation as to those functions. Deane claims t hat the heavy lifting she is restricted from doing is n ot an essential job function of a nurse. Deane describes nursing as a profession that focusses primarily on skill, i ntellect, and knowledge. While conceding that lifting constit utes part of a nurse's duties, she submits that it is only a small part.

16In support of her contentions, Deane again offers

Rappucci's affidavit and report. Rappucci opines th at patient care, not heavy lifting of patients, is the essential function of registered nursing. As evidence, he ref erences the Department of Labor's Dictionary of Occupationa l Titles Job Descriptions ("DOL Dictionary"), which details four critical tasks of a general duty nurse, none of whi ch involves heavy lifting: (1) administering medicatio ns and treatments, (2) preparing equipment and aiding phys icians during the treatment of patients, (3) observing pat ients and recording significant conditions and reactions to d rugs, treatments, and significant incidents, and (4) taki ng temperature, pulse, blood pressure, and other vital signs to

detect deviations from normal and assess the condit ion of the patient. Rappucci also notes that nursing is a professional occupation, and he compares it with or derly work to exemplify the differences between the two p ositions. For example, whereas nursing is classified by the Department of Labor as skilled, medium duty labor, orderly work is classified as semi-skilled, heavy-duty labo r. Also, whereas none of a general nurse's critical tasks un der the DOL Dictionary description include lifting, the des cription of orderly work enumerates "lift[ing] patients onto and from bed" as critical task number five. This is because, according to Deane, the orderly position exists to assist the nurse professional in the performance of his or her job d uties. Finally, Deane points out that, recognizing the dif ficulty of unassisted heavy lifting, PMC uses a team approach to the lifting of patients, both in routine matters and in responding to emergency situations.10

PMC responds that lifting is an essential function of a nurse. In support, PMC cites its job description, w hich details under the heading "MAJOR TASKS, DUTIES

AND RESPONSIBILITIES" that one of the "WORKING CONDITIONS" for a staff registered nurse is the"[f] requent

___________________________________________________ ______________

10. Rappucci also contends that PMC misdefines the essential functions of the nurse position (e.g., by including lifting o f laundry bags as a "major task duty and responsibility"). Rappucci arg ues that this confuses method with function in that lifting is a method of accomplishing a task, rather than a specific job function in relation to nursing.

17lifting of patients."11 PMC also notes that Deane c onceded

that the PMC job description was "an accurate refle ction of the tasks, duties and responsibilities as well as t he qualifications, physical requirements and working conditions of a registered nurse at [PMC]," and tha t among her "critical job demands" at PMC were: (1) the pla cement of patients in water closets, tub chairs or gurneys , (2) the changing of position of patients, and (3) the lifti ng of laundry bags. These pieces of evidence, contends PM C, constitute multiple admissions by Deane that liftin g is an essential function of a staff registered nurse at P MC. Finally, PMC asserts that the consequences of a nur se's inability to lift patients could create a dangerous situation in the hospital for Deane and her patients.

We decline to apply conclusive effect to either the job description or PMC's judgment as to whether heavy l ifting is essential to Deane's job. The EEOC's Interpretiv e Guidance indicates that "the employer's judgment as to which functions are essential" and "written job des criptions prepared before advertising or interviewing applica nts" are two possible types of evidence for determining the essential functions of a position, but that such evidence is not to be given greater weight simply because it is included in the non-exclusive list set out in 29 C.F.R. S 1630.2(n) (3). See 29 C.F.R. pt. 1630, app. S 1630.2(n). Thus, the job de scription is not, as PMC contends, incontestable evidence tha t unassisted patient lifting is an essential function of Deane's

___________________________________________________ ______________

11. Rappucci criticizes the job description for uti lizing incorrect language to describe the lifting requirements. For example, according to the Department of Labor, "frequent lifting of patients" means that the task is performed 33% to 66% of the day, or approximatel y 3-5 hours over an eight hour work shift. Deane contends that this des cription is implausible (and inaccurate) and conflicts with oth er testimony. For example, Joan Campagna, a registered staff nurse at PMC since 1987, swore in her affidavit that a PMC nurse typically s pends only minutes per day repositioning patients in their beds, trans ferring patients from bed to gurney or vice versa, and moving patients in to and out of wheelchairs. Moreover, Campagna notes that these ta sks are nearly always accomplished by two people and that PMC empl oys orderlies, licensed practical nurses, and nurses aides whose d uties are to assist registered nurses in all patient care activities, i ncluding the lifting

and transferring of patients.

18job. Moreover, the EEOC Regulations also provide th at

while "inquiry into the essential functions is not intended to second guess an employer's business judgment with r egard to production standards," whether a particular func tion is

essential "is a factual determination that must be made on a case by case basis [based upon] all relevant evid ence." Id. (emphasis added). Finally, the import of the rest o f PMC's evidence (e.g., her alleged admissions, etc.) is di sputed by Deane. For all these reasons, we find that there is a genuine issue of material fact on the issue of whet her Deane was a qualified individual under the ADA. 12

___________________________________________________ ______________

12. In view of this conclusion, we need not reach t he more difficult question addressed by the panel whether "regarded a s" disabled plaintiffs must be accommodated by their employers if they cannot perform the essential functions of their jobs. Dean e contends that, as a matter of statutory interpretation, "regarded as" p laintiffs are entitled

to the same reasonable accommodations from their emplo yers as are actually disabled plaintiffs. She reasons that, jus t as we found that a plain reading of the ADA only requires plaintiffs t o show that they can perform the essential functions of the job, a plain reading of the definition of "qualified individual" demonstrates t hat a "regarded as" plaintiff is qualified so long as she can perform t he essential functions

with reasonable accommodation. See 42 U.S.C.S 12111 (8) (defining a "qualified individual" as one "who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires"); s ee also 29 C.F.R. S 1630.2(m). Moreover, Deane submits that this plai n reading of the statute is buttressed by the Supreme Court's decisi on in Arline, 480 U.S. at 288-89 (holding that, under the Rehabilitation A ct, employers have an affirmative obligation to make reasonable accommoda tions for employees who are perceived to be handicapped). More importan tly, according to Deane, failure to mandate reasonable accommodations for "regarded as" plaintiffs would undermine the role the ADA plays i n ferreting out disability discrimination in employment. This is be cause, following Deane's logic, the "regarded as" prong of the disab ility definition is premised upon the reality that the perception of di sability, socially constructed and reinforced, is difficult to destroy , and in most cases, merely informing the employer of its misperception will not be enough.

In countering Deane's position, PMC notes prelimina rily that a "regarded as" plaintiff 's only disability is the e mployer's irrational response to her illusory condition. Under these cir cumstances, reasons PMC, it simply makes no sense to talk of accommodat ions for any physical impairments because, by definition, the im pairments are not the statutory cause of the plaintiff 's disability. Adopting Deane's

19C.

Finally, we find that Deane can easily establish th e third prong of her prima facie case. The August 10, 1992, call from Hann terminating Deane because of her "handica p" is

uncontroverted direct evidence that Deane suffered an adverse employment action because of her employer's perception of her disability. See Martinson v. Kinn ey Shoe Corp., 104 F.3d 683, 686 (4th Cir. 1997) ("When an employer concededly discharges an employee because of a disability, the employee need prove nothing more to meet the third prong of the prima facie test."). interpretation of the ADA would, in PMC's view: (1) permit healthy employees to, through litigation (or the threat of litigation) demand changes in their work environments under the guise of "reasonable accommodations" for disabilities based upon misperc eptions; and (2) create a windfall for legitimate "regarded as" disa bled employees who, after disabusing their employers of their mispercep tions, would

nonetheless be entitled to accommodations that thei r similarly situated co-workers are not, for admittedly non-disabling co nditions.

While we acknowledge the considerable force of PMC' s argument, especially the latter point, we express no position on the accommodation issue, and note that the Equal Employment Opportuni ty Commission has not taken an official position yet either. See Brief for the Equal Opportunity Commission as Amicus Curiae at 6. We no te, however, that if it turns out that a "regarded as" plaintiff who cannot perform the essential functions of her job is not entitled to a ccommodation (and therefore does not have to be reinstated), he or sh e need not necessarily be without remedy. The plaintiff still might be ent itled to injunctive

relief against future discrimination, see EEOC v. Goodyear Aerospace, 813 F.2d 1539, 1544 (9th Cir. 1987) (listing benefits o f injunctive relief, including: (1) instructing employers to comply with federal law, (2) subjecting employers to the contempt power of the f ederal courts for future violations, and (3) reducing the chilling ef fect of employers' alleged discrimination); King v. Trans World Airlines, Inc. , 738 F.2d 255, 259 (8th Cir. 1984), to compensatory or punitive damage s under 42 U.S.C. S 1981a, see Johnson v. Railway Express Agency, Inc ., 421 U.S. 454, 459-60 (1975) (punitive damages); Mahone v. Waddle, 564 F.2d 1018 (3d Cir. 1977) (compensatory damages), and/or to counse l fees under 42 U.S.C. S 1988(b).

20III.

For the foregoing reasons, the judgment of the dist rict

court will be reversed and the case remanded to the district court for further proceedings consistent with this opinion. Although not a ground of our decision, we take this opportunity to observe that this protracted (and ve ry much ongoing) litigation would likely have been unnecess ary had the parties taken seriously the precepts announced in our opinion in Mengine v. Runyon, 114 F.3d 415 (3d Cir. 1997). In that decision, we highlighted the importance of communication and cooperation between employers and employees in seeking reasonable accommodations. See id. at 416. Specifically, we noted that, in the context of the Rehabilitation Act, "both parties have a duty to as sist in the search for appropriate reasonable accommodation and to act in good faith."13 Id . at 420. In this case, th e single telephone interaction between Deane and McCool at P MC hardly satisfies our standard that the employer mak e "reasonable efforts to assist [the employee], to co mmunicate with him in good faith, and to not impede his inves tigation [for employment]." Id. (citations omitted). While i t may turn out that reasonable accommodation for Deane is impo ssible (or is not required because she is a "regarded as" plaintiff), nevertheless, an employer who fails to engage in th e interactive process runs a serious risk that it wil l erroneously overlook an opportunity to accommodate a statutorily disabled employee, and thereby violate the ADA.

Id. at 420-21.

___________________________________________________ ______________ 13. As we noted in Mengine, interpretations of the Rehabilitation Act's "reasonable accommodation" provisions are relevant to our analysis of the ADA and vice versa because in 1992, Congress am ended the section of the Rehabilitation Act defining "reasonable acco mmodation" to incorporate the standards of the ADA. See 114 F.3d at 420 & n.4 (citing 29 U.S.C. S 794(d)).

21GREENBERG, Circuit Judge, dissenting.

I respectfully dissent. I recognize, of course, tha t a "qualified individual with a disability" need not a ctually have an impairment that substantially limits one or more of her major life activities as it is sufficient if th e employer regards her as having such an impairment. 42 U.S.C. S 12102(2)(C). Thus, if a covered employer discrimi nated against such an individual in a manner barred by th e Americans with Disabilities Act, it would violate t he Act. 42 U.S.C. S 12112(a).

But, as I see this case, the issue here is differen t. As the majority has pointed out, the district court found that Deane was not actually disabled and she has not app ealed that determination. The issue then is whether a per son who is not actually disabled can demand a reasonable accommodation from an employer. After all it was De ane who claimed to need the lifting restriction and who claimed that she had to avoid repetitive manual tasks. To m e the answer has to be no. I cannot understand how an emp loyee who is not actually disabled can indicate that she must have an accommodation for her work, and then, when the employer takes her at her word but declines to gran t the accommodation, assert a valid cause of action again st the employer under the ADA. Congress did not pass t he ADA to permit persons without a disability to deman d

accommodations.

It is helpful to consider the following hypothetica l. Let us assume that employees in the heavy construction ind ustry in the ordinary course of their employment regularl y lift very heavy loads. An applicant for employment who i s not actually disabled indicates to the employer that sh e cannot lift heavy loads but requests an accommodation to a void the lifting. The prospective employer refuses to ma ke the accommodation. In my view, the employer does not vi olate the ADA, and when Deane's case is analyzed it is no t different. She, too, was not disabled but asked for an accommodation.

The majority believes that there is a genuine issue of material fact as to "whether PMC misperceived Deane as being disabled." Maj. Op. at 3. But that dispute do es not

22matter, for the critical issue is not how PMC viewe d Deane

because there is simply no escape from the fact tha t an
essential element of Deane's case is that "PMC fail ed to accommodate her lifting restriction." Maj. Op. at 5 . After all, as the majority explains, "Deane maintains that she requires and is entitled to accommodation for her l ifting restriction." Maj. Op. at 6. But no matter what misconceptions PMC may have had about Deane, it was Deane who requested the accommodation. Thus, even i f PMC regarded her as more substantially impaired tha n she actually was, this misperception does not matter fo r she was not entitled to any accommodation. It is critic al to remember that this is not a case in which the emplo yer perceived the employee to be disabled and then refu sed to

make the accommodation which it believed she needed

.

The majority indicates that there is a genuine disp ute of material fact regarding whether heavy lifting is an essential function of her former job. I agree that there is a genuine dispute of fact as to whether heavy lifting is an e ssential function of the job. But, just as the dispute of fa ct regarding PMC's perception of Deane does not matter

, neither does the heavy lifting dispute because it i s not material. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). Inasmuch as Deane is not actually disabled, she has no right to an

accommodation whether or not the accommodation woul d impact on her ability to perform the essential func tions of the job. Furthermore, an employer can determine wha t it believes are the essential elements for a particula r job without concern that its determination might be cha llenged under the ADA by a person who is not actually disab led.

In my view, this case is quite straightforward but somehow has become complicated. I respectfully diss ent as I would affirm the summary judgment.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

23