1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-15-1998

Deane v. Pocono Med Ctr

Precedential or Non-Precedential:

Docket 96-7174

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Recommended Citation

"Deane v. Pocono Med Ctr" (1998). 1998 Decisions. Paper 81.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/81
Filed 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 District 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 of the 

district court granting summary judgment to her former 

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 ADA, 

Congress intended that the scope of the Act would extend 

not only to those who are actually disabled, but also 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 PMC's 

failure to accommodate her in a manner that would enable 

her to retain her position following a work-related injury 

that affected her ability to do heavy lifting.1 The case came 

_________________________________________________________________ 

***Honorable Edward R. Becker, United States Circuit Judge for the 

Third Circuit, assumed Chief Judge status on February 1, 1998. 

1. Deane also alleges that PMC improperly terminated 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 Pa. Cons. Stat. Ann. 

SS 951 et seq. Those claims are not before us. 

 2 
before the en banc court to settle the question that divided 

the original panel -- whether "regarded as" plaintiffs, in 

order to be considered qualified under the ADA, must 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 we now 

reject it, concluding that the plain language of the ADA 

requires proof only of a plaintiff 's ability to perform a 

position's essential functions. 

This conclusion forces us to determine whether Deane 

has adduced sufficient evidence to create a genuine issue of 

material fact with respect to two elements of her prima facie 

case: (1) whether PMC misperceived Deane as being 

disabled; and (2) whether Deane is a "qualified individual", 

a decision that turns on whether lifting is an essential 

function of nursing at PMC. Because we conclude that 

Deane has adduced sufficient evidence regarding both of 

these matters, we hold that summary judgment was 

inappropriate. Accordingly, the judgment of the district 

court will be vacated and the case remanded for further 

proceedings. 

The panel addressed a second question of much greater 

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 panel 

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 treatment, 

and hence the employee is not statutorily entitled to 

accommodation from the employer. However, as resolution 

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 nurse to 

work primarily on the medical/surgical floor. On June 22, 

1991, while lifting a resistant patient, she sustained a 

cartilage tear in her right wrist causing her to miss 

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

Barbara Manges, a nurse assigned to Deane's workers' 

compensation case, telephoned PMC and advised Charlene 

McCool, PMC's Benefits Coordinator, that Deane intended 

to return to work with certain restrictions. According to 

Deane, she informed McCool that she was unable to lift 

more than 15-20 pounds or perform repetitive manual

tasks such as typing, but that her physician, Dr. Osterman, 

had released her to return to "light duty" work.2 Deane 

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 in 

nursing. Unfortunately, this telephone call was PMC's only 

meaningful interaction with Deane during which it could 

have assessed the severity of or possible accommodation for 

her injuries. PMC never requested additional information 

from Deane or her physicians, and, according to Deane, 

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 advised 

Barbara Hann, PMC's Vice President of Human Resources, 

of Deane's request to return to work, of her attendant work 

restrictions, and of her stated need for accommodation. 

Shortly after considering the information conveyed by 

McCool and after comparing it to the job description 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 Nursing, 

and Susan Stine, PMC's Director of Nursing Resources/ 

_________________________________________________________________ 

2. In a letter dated June 8, 1992, the contents of which were 

communicated by Deane and Manges to McCool during their telephone 

conversation, Dr. Osterman opined as follows: 

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

would 

 place a lifting limit of 20 pounds and a limit on unrestricted 

 repetitive motion of her wrist. She does believe that she can 

return 

 to some nursing and I would agree with this. She has suggested 

 pediatric nursing, neonatal nursing and possibly even the cancer 

 unit at the hospital which apparently does not involve lifting the 

 patients. All would be acceptable. 

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

to PMC and to explore possible accommodations for her. 

Both Clarke and Stine concluded that Deane could not be 

accommodated in her previous job as a nurse on the 

medical/surgical floor or in any other available position 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 PMC. 

According to Werkheiser, there were no such openings at 

that time. 

As a result of the collective determination that Deane 

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 could 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 facility, where 

she remained until May 1993. Deane has been employed by 

a different non-acute care facility since July 1993. Neither 

of these positions require heavy lifting, bathing patients, or 

the like. 

Deane argued to the district court that she was both 

actually disabled as a result of her injury and that she was 

perceived to be so by PMC. On summary judgment, the

court rejected both theories and held that Deane was 

neither disabled nor regarded by her employer as being 

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 court's 

determination that she was not actually disabled. Indeed, 

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 erroneous 

perception of her actual impairment, she would have no 

claim under the ADA. 

What is left, then, are Deane's contentions that she was 

disabled under the terms of the ADA by virtue of the fact 

that PMC regarded her limitations as being far worse than 

they actually were, that PMC failed to accommodate her 

lifting restriction, and that she was eventually terminated 

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

support of her perception claim, Deane relies on a"laundry 

list" of PMC's allegedly erroneous perceptions. According to 

Deane, PMC believed that she was unable to lift more than 

ten pounds, push or pull anything, assist patients in 

emergency situations, move or assist patients in the 

activities of daily living, perform any patient care job at 

PMC or any other hospital, perform CPR, use the rest of her 

body to assist patients, work with psychiatric patients, or 

use medical equipment. Deane refutes each of these 

perceptions -- or, in her view, misperceptions-- and 

contends that her injury was, in fact, relatively minor in 

nature. Deane further contends that PMC should be held 

responsible for these misperceptions because they were 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 entitled 

to accommodation for her lifting restriction. In this regard, 

Deane contends that she could be accommodated either in 

her previous position as a nurse on the medical/surgical 

floor or through reassignment to another position that 

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 another 

unit within the medical center such as the pediatrics, 

oncology, or nursery units, which would not have required 

heavy lifting. In the alternative, Deane submits that she can 

perform the essential functions of her previous job in the 

medical/surgical floor without accommodation because 

lifting is not an essential function of nursing. We set forth 

our jurisdiction and standard of review in the margin.3 

_________________________________________________________________ 

3. We have appellate jurisdiction over the district court's grant of 

summary judgment pursuant to 28 U.S.C. S 1291. Because our standard 

of review is plenary, see Kelly v. Drexel University, 94 F.3d 102, 104 (3d 

Cir. 1996), we apply the same test the district court should have applied 

 6 
II. 

The core anti-discrimination section of the ADA provides 

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 employees, 

 employee compensation, job training, and other terms, 

 conditions, and privileges of employment. 

42 U.S.C. S 12112. In order to make out a prima facie case 

under the ADA, a plaintiff must be able to establish that he 

or she (1) has a "disability" (2) is a "qualified individual" 

and (3) has suffered an adverse employment action because 

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 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. S 12102(2); 29 C.F.R. S 1630.2(g).4 Because 

_________________________________________________________________ 

in the first instance. See Olson v. General Electric 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 record, when viewed 

in the light most favorable to Deane, shows that there 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. Catrett, 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 pertinent terms, we are 

guided by the Regulations issued by the Equal Employment Opportunity 

 7 
Deane concedes that she is not actually disabled, but that 

she was only "regarded as" being disabled, we direct our 

focus to the third tier of the statutory definition. Read in 

conjunction with the first tier, which defines an actual 

disability, the third tier requires us to determine whether 

PMC regarded Deane as having an impairment and whether 

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. 

_________________________________________________________________ 

Commission ("EEOC") to implement Title I of the Act. See 42 U.S.C. 

S 12116 (requiring the EEOC to implement said Regulations); 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 Defense 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 actual disability. The 

primary motivation for the inclusion of misperceptions of disabilities in 

the statutory definition was that "society's accumulated myths and fears 

about disability and diseases are as handicapping as 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 provides: 

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

used 

 in the Rehabilitation Act of 1973, was articulated by the Supreme 

 Court in School Board of Nassau County v. Arline . The Court noted 

 that although an individual may have an impairment that does not 

 in fact substantially limit a major life activity, the reactions of 

others 

 may prove just as disabling. "Such an impairment might not 

 diminish a person's physical or mental capabilities, but could 

 nevertheless substantially limit that person's ability to work as a 

 result of the negative reactions of others to the impairment." 

 The Court concluded that, by including this test, "Congress 

 acknowledged that society's accumulated myths 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 omitted). 
 8 
Turning 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 that does 

 not substantially limit major life activities but is 

 treated by a covered entity as constituting such 

 limitation; 

 (2) [h]as a physical or mental impairment that 

 substantially limits major life activities only as a result 

 of the attitude of others toward such impairment; 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 limiting 

 impairment.6 

29 C.F.R. S 1630.2(l). See also H.R. Rep. No. 101-485 (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 each 

definition is the requirement that the individual not in fact 

have an impairment that, absent the misperceptions of 

others, would substantially limit a major life activity. 

Deane contends that she satisfies the first definition 

because PMC erroneously perceived that the nature and 

extent of her physical impairment "substantially limited" 

her ability to "work", which is included within the EEOC's 

definition of a "major life activity".7 See generally Olson, 101 

_________________________________________________________________ 

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

 (1) [a]ny physiological disorder, or condition, cosmetic 

 disfigurement, or anatomical loss affecting one or more of the 

 following body systems: neurological, musculoskeletal, special 

sense 

 organs, respiratory (including speech organs), cardiovascular, 

 reproductive, digestive, genito-urinary, hemic and lymphatic, skin, 

 and endocrine; or 

 (2) [a]ny mental or psychological disorder, such as mental 

 retardation, organic brain syndrome, emotional or mental illness, 

 and specific learning disabilities. 

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

as 

caring for oneself, performing manual tasks, walking, seeing, hearing, 

speaking, breathing, learning, and working," see 29 C.F.R. S 1630.2(i), as 

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

1437, 1445 (10th Cir. 1996); Bridges v. City of Bossier, 94 

F.3d 329, 333-34 (5th Cir. 1996). The district court rejected 

Deane's perceived disability claim on three grounds. First, 

the court found, as a matter of undisputed fact, that PMC 

regarded Deane's impairment as limiting only her ability to 

work as a nurse on the surgical/medical floor, not her 

ability to work as a nurse in general. Next, the court 

determined that Deane could not have been generally

precluded from working in her field because, following 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, therefore, 

was not actionable under the ADA. We disagree with all 

_________________________________________________________________ 

well as "sitting, standing, lifting, [and] reaching." 29 C.F.R. pt. 1630, 

app. S 1630.2(i); House Labor Report at 52, reprinted in 1990 

U.S.C.C.A.N. at 334; House Judiciary Report at 28-29, 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 "significantly 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 comparable training, 

skills and abilities." Olson, 101 F.3d at 952 (citing 29 C.F.R. 

S 1630.2(j)(3)(i)). Thus, the mere "inability to perform a single, 

particular 

job does not constitute a substantial limitation in the major life 

activity 

of working." Id. In making these determinations, courts may consider: 

 (A) [t]he geographical area to which the individual 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, skills or abilities, within 

that 

 geographical area, from which the individual is also disqualified 

 because of the impairment (class of jobs); and/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, skills or abilities, 

within 

 that geographical area, from which the individual is also 

disqualified 

 because of the impairment (broad range of jobs in various classes). 
29 C.F.R. S 1630.2(j)(3)(ii). 

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

order. 

Although the legislative history indicates that Congress 

was concerned about eliminating society's myths, fears, 

stereotypes, and prejudices with respect to the disabled, the 

EEOC's Regulations and Interpretive Guidance make clear 

that even an innocent misperception based on nothing 

more than a simple mistake of fact as to the severity, or 

even the very existence, of an individual's impairment can 

be sufficient to satisfy the statutory definition of a perceived 

disability. See 29 C.F.R. pt. 1630, app.S 1630.2(l)

(describing, as one example of a "regarded as" disabled 

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 will 

suffer a heart attack). Thus, whether or not PMC was 

motivated by myth, fear or prejudice is not determinative of 

Deane's "regarded as" claim. 

The second ground -- that Deane's subsequent 

employment in the field of nursing demonstrated that she 

was not substantially limited in the major life activity of 

working -- confuses her actual impairment with PMC's 

misperception thereof. Deane's subsequent work history 

could, at most, reflect her lack of an actual disability, 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 conclusion, 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 officials 

documenting confusion as to the extent of Deane's physical 

capacity, with regard to pushing, pulling, and lifting. There 

is also evidence that PMC fundamentally misunderstood 

and exaggerated the limitations that the wrist injury 

imposed on Deane. Moreover, PMC's apparent 

misunderstanding is in line with other testimony that PMC 

did not evaluate Deane, contact her physicians, or 

 11 
independently review her medical records, but rather relied 

solely on one telephone conversation it had with Deane. 

Deane also produced the affidavit and report of Daniel 

Rappucci, her vocational expert, who explained the import 

of PMC's perception of Deane's injury. Rappucci concluded 

that, had Deane been impaired to the extent allegedly 

perceived by PMC, she would have been precluded from 

consideration for employment, both within her chosen 

profession and within a wide range of jobs within her 

geographic region. Rappucci further opined that Deane 

would have been precluded from performing not only many 

of the available jobs in service-producing industries, 

(including transportation, wholesale/retail, finance, real 

estate, hospitality industries, medical services, and 

professional services), which made up 83% of the 41,000 

non-agricultural jobs in Deane's county of residence, but 

also most of the jobs in the goods-producing industries 

(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-duty 

positions when and if they became available, and that this 

suggests that PMC did not believe Deane to be disabled. 

PMC submits that its actions indicate only that PMC

considered Deane to be incapable of performing certain 

functions that precluded her from returning to nursing. 

As the preceding discussion makes clear, however, there 

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 [Deane's] ability 

to perform either a class of jobs or a broad range of jobs in 

various classes as compared to the average person having 

comparable training, skills and abilities." 29 C.F.R. 

S 1630.2(j)(3)(i). Deane has thus adduced sufficient evidence 

that PMC regarded her as substantially more physically 

impaired than she actually was, and that PMC's 

misperception, if correct, would satisfy the S 1630.2(j)(3)(i) 

 12 
threshold. Therefore, summary judgment on this issue was 

inappropriate.8 

B. 

The second element of Deane's prima facie case under the 

ADA requires her to demonstrate that she is a "qualified 

individual". The ADA defines this term as an individual 

"who, with or without reasonable accommodation, can

perform the essential functions of the employment position 

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. First, a 

court must determine whether the individual satisfies the 

requisite skill, experience, education and other job-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 accommodation, can 

perform the essential functions of the position held 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 (8th Cir. 

1995). Because PMC does not dispute Deane's general

qualifications as a registered nurse, we need not dwell on 

the first step of the "qualified individual" analysis. 

Determining whether an individual can, with or without 

reasonable accommodation, perform the essential functions 

of the position held or sought, also a two step process, is 

relatively straightforward. First, a court must consider 

whether the individual can perform the essential functions 

of the job without accommodation. If so, the individual is 

qualified (and, a fortiori, is not entitled to accommodation). 

If not, then a court must look to whether the individual can 

perform the essential functions of the job with a reasonable 

_________________________________________________________________ 

8. In a related vein, PMC seems to suggest that there is no causal 

relationship between the alleged misperception and Deane's discharge in 

that PMC took Deane's original statement that she could do no lifting 

and needed major accommodation at face value. Thus, according to 

PMC, Deane was not discharged because of its misperception. But there 

is also a genuine issue of fact here as well, see infra Parts II.B.2 and 

III. 

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

individual has failed to set out a necessary element of the 

prima facie case. 

_________________________________________________________________ 

9. "In general, an accommodation is any change in the work environment 

or in the way things are customarily done that enables an individual 

with a disability to enjoy equal employment opportunities." 29 C.F.R. pt. 

1630, app. S 1630.2(o). The text of the ADA provides that "reasonable 

accommodation" may include-- 

 (A) making existing facilities used by employees readily accessible 

 to and usable by individuals with disabilities; 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 accommodation" to 

include 

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

that 

 enable a qualified applicant with a disability to be considered for 

the 

 position such applicant desires; or 

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

 the manner or circumstances under which the position held or 

 desired is customarily performed, that enable a qualified 

individual 

 with a disability to perform the essential functions of that 

position; 

 or 

 (iii) [m]odifications or adjustments that enable a covered entity's 

 employee with a disability to enjoy equal benefits and privileges 

of 

 employment as are enjoyed by its other similarly situated employees 

 without disabilities. 

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

An individual's right to reasonable accommodation may be subject, 

however, to certain limitations. For example, an employer is not required 

to provide accommodation if it would impose an "undue hardship" on the 

employer as defined in 29 C.F.R. S 1630.2(p). An employer also is not 
required 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 reduce it to an 

acceptable level. 29 C.F.R. S 1630.2(r). 

 14 
The majority panel opinion, in deciding for PMC, 

reasoned that to satisfy the first step, a "regarded 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. PMC 

disassociated itself from the panel's position before the en 

banc court. As this issue is one of statutory construction, 

the "first step in interpreting a statute is to determine 

whether the language at issue has a plain and 

unambiguous meaning with regard to the particular dispute 

in the case." Robinson v. Shell Oil Co., ___ U.S. ___, 117 S. 

Ct. 843, 846 (1997). 

1. 

The ADA prohibits a "covered entity" from discriminating 

against a "qualified individual with a disability." 42 U.S.C. 

S 12112(a). Section 12111(8), which defines the latter term, 

reads: 

 The term "qualified individual with a disability" means 

 an individual with a disability who, with or without 

 reasonable accommodation, can perform the essential 

 functions of the employment position that such 

 individual holds or desires. For the purposes 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 interviewing 

 applicants for the job, this description shall be 

 considered evidence of the essential functions of the 

 job. 

Section 12111(8) is plain and unambiguous. The first 

sentence of that section, makes it clear that the phrase 

"with or without reasonable accommodation" refers directly 

to "essential functions". Indeed, there is nothing in the 

sentence, other than "essential functions", to which "with 

or without reasonable accommodation" could refer. 

Moreover, nowhere else in the Act does it state that, 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 actual or 

 15 
perceived disabilities in terms of the threshold showing of 

qualifications. Therefore, if an individual can perform the 

essential functions of the job without accommodation as to 

those functions, regardless of whether the individual can 

perform the other functions of the job (with or without 

accommodation), that individual is qualified under the ADA. 

The history of the ADA confirms this view. In the 

committee reports that accompanied the ADA, Congress 

spoke directly to the qualifications standard adopted in the 

statute. Repeatedly, Congress stated that the qualifications 

standard turned on the individual's ability to perform 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 functions" to 

ensure that persons with disabilities "not be disqualified 

because of the inability to perform non-essential or 

marginal functions of the job." House Judiciary Report at 

31-32, reprinted in 1990 U.S.C.C.A.N. at 454. As stated in 

one committee report, the purpose of the ADA's 

qualifications standard is to "ensure that employers can 

continue to require that all applicants and employees, 

including those with disabilities, are able to perform the 

essential functions, i.e., the non-marginal functions of the 

job in question." House Labor Report at 55, reprinted in 

1990 U.S.C.C.A.N. at 337 (emphasis added). 

2. 

Having rejected the panel's position that Deane needed to 

make a showing that she can perform all of the functions 

of her former job, we must now determine whether Deane 

has, in fact, adduced sufficient evidence to survive 

summary judgment on the question whether she can 

perform the essential functions of the job without 

accommodation as to those functions. Deane claims that 

the heavy lifting she is restricted from doing is not an 

essential job function of a nurse. Deane describes nursing 

as a profession that focusses primarily on skill, intellect, 

and knowledge. While conceding that lifting constitutes part 

of a nurse's duties, she submits that it is only a small part. 

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In support of her contentions, Deane again offers 

Rappucci's affidavit and report. Rappucci opines that 

patient care, not heavy lifting of patients, is the essential 

function of registered nursing. As evidence, he references 

the Department of Labor's Dictionary of Occupational Titles 

Job Descriptions ("DOL Dictionary"), which details four 

critical tasks of a general duty nurse, none of which 

involves heavy lifting: (1) administering medications and 

treatments, (2) preparing equipment and aiding physicians 

during the treatment of patients, (3) observing patients and 

recording significant conditions and reactions to drugs, 

treatments, and significant incidents, and (4) taking 

temperature, pulse, blood pressure, and other vital signs to 

detect deviations from normal and assess the condition of 

the patient. Rappucci also notes that nursing is a 

professional occupation, and he compares it with orderly 

work to exemplify the differences between the two positions. 

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 labor. Also, 

whereas none of a general nurse's critical tasks under the 

DOL Dictionary description include lifting, the description 

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 duties. 

Finally, Deane points out that, recognizing the difficulty 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, which 

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 of laundry bags as a 

"major task duty and responsibility"). Rappucci argues 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. 

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

that the PMC job description was "an accurate reflection of 

the tasks, duties and responsibilities as well as the 

qualifications, physical requirements and working 

conditions of a registered nurse at [PMC]," and that among 

her "critical job demands" at PMC were: (1) the placement 

of patients in water closets, tub chairs or gurneys, (2) the 

changing of position of patients, and (3) the lifting of 

laundry bags. These pieces of evidence, contends PMC, 

constitute multiple admissions by Deane that lifting is an 

essential function of a staff registered nurse at PMC. 

Finally, PMC asserts that the consequences of a nurse'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 lifting 

is essential to Deane's job. The EEOC's Interpretive 

Guidance indicates that "the employer's judgment as to 

which functions are essential" and "written job descriptions 

prepared before advertising or interviewing applicants" 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 description 

is not, as PMC contends, incontestable evidence that 

unassisted patient lifting is an essential function of Deane's 

_________________________________________________________________ 

11. Rappucci criticizes the job description for utilizing 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 approximately 3-5 hours over an 

eight hour work shift. Deane contends that this description is 

implausible (and inaccurate) and conflicts with other testimony. For 

example, Joan Campagna, a registered staff nurse at PMC since 1987, 

swore in her affidavit that a PMC nurse typically spends only minutes 

per day repositioning patients in their beds, transferring patients from 

bed to gurney or vice versa, and moving patients into and out of 

wheelchairs. Moreover, Campagna notes that these tasks are nearly 

always accomplished by two people and that PMC employs orderlies, 

licensed practical nurses, and nurses aides whose duties are to assist 

registered nurses in all patient care activities, including the lifting 

and 

transferring of patients. 

 18 
job. Moreover, the EEOC Regulations also provide that 

while "inquiry into the essential functions is not intended to 

second guess an employer's business judgment with regard 

to production standards," whether a particular function is 

essential "is a factual determination that must be made on 

a case by case basis [based upon] all relevant evidence." Id. 

(emphasis added). Finally, the import of the rest of PMC's 

evidence (e.g., her alleged admissions, etc.) is disputed by 

Deane. For all these reasons, we find that there is a 

genuine issue of material fact on the issue of whether 

Deane was a qualified individual under the ADA. 12 

_________________________________________________________________ 

12. In view of this conclusion, we need not reach the more difficult 

question addressed by the panel whether "regarded as" disabled 

plaintiffs must be accommodated by their employers if they cannot 

perform the essential functions of their jobs. Deane contends that, as a 

matter of statutory interpretation, "regarded as" plaintiffs are entitled 

to 

the same reasonable accommodations from their employers as are 

actually disabled plaintiffs. She reasons that, just as we found that a 

plain reading of the ADA only requires plaintiffs to show that they can 

perform the essential functions of the job, a plain reading of the 

definition of "qualified individual" demonstrates that a "regarded as" 

plaintiff is qualified so long as she can perform the 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"); see also 29 C.F.R. 

S 1630.2(m). Moreover, Deane submits that this plain reading of the 

statute is buttressed by the Supreme Court's decision in Arline, 480 U.S. 

at 288-89 (holding that, under the Rehabilitation Act, employers have an 

affirmative obligation to make reasonable accommodations for employees 

who are perceived to be handicapped). More importantly, according to 

Deane, failure to mandate reasonable accommodations for "regarded as" 

plaintiffs would undermine the role the ADA plays in ferreting out 

disability discrimination in employment. This is because, following 

Deane's logic, the "regarded as" prong of the disability definition is 

premised upon the reality that the perception of disability, 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 preliminarily that a 

"regarded as" plaintiff 's only disability is the employer's irrational 

response to her illusory condition. Under these circumstances, reasons 

PMC, it simply makes no sense to talk of accommodations for any 

physical impairments because, by definition, the impairments are not 

the statutory cause of the plaintiff 's disability. Adopting Deane's 

 19 
C. 

Finally, we find that Deane can easily establish the third 

prong of her prima facie case. The August 10, 1992, call 

from Hann terminating Deane because of her "handicap" is 

uncontroverted direct evidence that Deane suffered an 

adverse employment action because of her employer's

perception of her disability. See Martinson v. Kinney 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 misperceptions; and (2) 

create a windfall for legitimate "regarded as" disabled employees who, 

after disabusing their employers of their misperceptions, would 

nonetheless be entitled to accommodations that their similarly situated 

co-workers are not, for admittedly non-disabling conditions. 

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 Opportunity Commission 

has not taken an official position yet either. See Brief for the Equal 

Opportunity Commission as Amicus Curiae at 6. We note, however, that 

if it turns out that a "regarded as" plaintiff who cannot perform the 

essential functions of her job is not entitled to accommodation (and 

therefore does not have to be reinstated), he or she need not necessarily 

be without remedy. The plaintiff still might be entitled to injunctive 

relief 

against future discrimination, see EEOC v. Goodyear Aerospace, 813 

F.2d 1539, 1544 (9th Cir. 1987) (listing benefits of injunctive relief, 

including: (1) instructing employers to comply with federal law, (2) 

subjecting employers to the contempt power of the federal courts for 

future violations, and (3) reducing the chilling effect of employers' 

alleged 

discrimination); King v. Trans World Airlines, Inc., 738 F.2d 255, 259 

(8th Cir. 1984), to compensatory or punitive damages 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 counsel fees under 42 

U.S.C. S 1988(b). 

 20 
III. 

For the foregoing reasons, the judgment of the district 

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 very much 

ongoing) litigation would likely have been unnecessary 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 assist in the 

search for appropriate reasonable accommodation and to 

act in good faith."13 Id . at 420. In this case, the single 

telephone interaction between Deane and McCool at PMC 

hardly satisfies our standard that the employer make 

"reasonable efforts to assist [the employee], to communicate 

with him in good faith, and to not impede his investigation 

[for employment]." Id. (citations omitted). While it may turn 

out that reasonable accommodation for Deane is impossible 

(or is not required because she is a "regarded as" plaintiff), 

nevertheless, an employer who fails to engage in the 

interactive process runs a serious risk that it will 

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 amended the section 

of the Rehabilitation Act defining "reasonable accommodation" to 

incorporate the standards of the ADA. See 114 F.3d at 420 & n.4 (citing 

29 U.S.C. S 794(d)). 

 21 
GREENBERG, Circuit Judge, dissenting. 

I respectfully dissent. I recognize, of course, that a 

"qualified individual with a disability" need not actually 

have an impairment that substantially limits one or more of 

her major life activities as it is sufficient if the employer 

regards her as having such an impairment. 42 U.S.C.

S 12102(2)(C). Thus, if a covered employer discriminated 

against such an individual in a manner barred by the 

Americans with Disabilities Act, it would violate the Act. 42 

U.S.C. S 12112(a). 

But, as I see this case, the issue here is different. As the 

majority has pointed out, the district court found that 

Deane was not actually disabled and she has not appealed 

that determination. The issue then is whether a person who 

is not actually disabled can demand a reasonable 

accommodation from an employer. After all it was Deane 

who claimed to need the lifting restriction and who claimed 

that she had to avoid repetitive manual tasks. To me the 

answer has to be no. I cannot understand how an employee 

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 grant the 

accommodation, assert a valid cause of action against 

the employer under the ADA. Congress did not pass the 

ADA to permit persons without a disability to demand 

accommodations. 

It is helpful to consider the following hypothetical. Let us 

assume that employees in the heavy construction industry 

in the ordinary course of their employment regularly lift 

very heavy loads. An applicant for employment who is not 

actually disabled indicates to the employer that she cannot 

lift heavy loads but requests an accommodation to avoid 

the lifting. The prospective employer refuses to make the 

accommodation. In my view, the employer does not violate 

the ADA, and when Deane's case is analyzed it is not 

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 does not 

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

because there is simply no escape from the fact that an 

essential element of Deane's case is that "PMC failed 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 lifting 

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 if 

PMC regarded her as more substantially impaired than she 

actually was, this misperception does not matter for she 

was not entitled to any accommodation. It is critical to 

remember that this is not a case in which the employer 

perceived the employee to be disabled and then refused to 

make the accommodation which it believed she needed. 

The majority indicates that there is a genuine dispute 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 essential 

function of the job. But, just as the dispute of fact 

regarding PMC's perception of Deane does not matter, 

neither does the heavy lifting dispute because it is 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 would 

impact on her ability to perform the essential functions of 

the job. Furthermore, an employer can determine what it 

believes are the essential elements for a particular job 

without concern that its determination might be challenged 

under the ADA by a person who is not actually disabled. 

In my view, this case is quite straightforward but 

somehow has become complicated. I respectfully dissent as 

I would affirm the summary judgment. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 23