USCA1 Opinion

United

States Court of Appeals

For the First Circuit

____________________

No. 96-1837

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff, Appellant,

v.

AMEGO, INC.,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

___________________

____________________

Before

Cyr and Lynch, Circuit Judges,

______________
and McAuliffe,* District Judge.
______________

____________________

Karen
M.
Moran,
__________________
Commission, with

Attorney,

Equal

whom C. Gregory Stewart,

__________________

Young Reams, Associate

____________

General

Employment

Opportun

General Counsel, Gwendo

______

Counsel, and

Vincent J. Blackwo
___________________

Assistant General Counsel, were on brief, for appellant.

Mary Jo Hollender, with
__________________

whom Hollender

& Carey,

L.L.P., was

brief, for appellee.

____________________
April 7, 1997
____________________

*Of the District of New Hampshire, sitting by designation.

LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

Amego, Inc., is a small not-

_____________

for-profit organization

people

suffering from

disorders.

including

It

six

Massachusetts,

Team Leader.

which

autism,

serves

in

cares for

retardation, and

twenty-five

residential

where

severely

to

behavioral

thirty

program

Ann Marie Guglielmi

The Team

disabled

in

clients,

Mansfield,

was employed as a

Leader position required

her to

be

responsible for the care of these disabled clients, including

the

them.

the

responsibility

After an

administering vital

medications

to

unresolved investigation of improprieties in

administering of

facility, Amego

of

medication

to patients

learned that other staff

at a

related

felt Guglielmi was

not performing her job adequately and was putting patients at

risk.

Amego also

learned

that

Ms. Guglielmi

had

twice

attempted to commit suicide within the previous six

overdosing on

medications.

This, Amego

weeks by

decided, meant that

Guglielmi could not safely dispense medications, an essential

job function,

and that

available to her.

("EEOC")

there was

no

other job

Her employment was thus terminated.

The

Equal

sued

Amego

Employment

on

behalf

Opportunity

of

Commission

Guglielmi

Americans with Disabilities Act ("ADA"), 42 U.S.C.

seq.
____

under

the

12101 et
__

The district court entered summary judgment against the

EEOC, holding

case

reasonably

that the EEOC had

not made out

a prima facie

that Guglielmi was an otherwise "qualified" individual,

-22

that

an accommodation

could

be reasonably

made, and

that

there was discrimination "because of" her disability.

The EEOC

whether

an

individuals

employee

in the

appeals and argues that

poses

significant

workplace is

of

the

plaintiff's

burden

risk

an affirmative

which the employer bears the burden of

part

the question of

to

other

defense on

proof and is thus not

that

the

employee

is

qualified.

says,

Those issues of qualification and

are matters for

not be resolved on

this

court to

summary judgment.

hold

because of conduct

the jury to resolve

that "adverse

risk, the EEOC

at trial and may

The EEOC

also invites

employment action

related to a disability

taken

is tantamount to

action taken because of a disability itself" for purposes

of

the ADA.

We affirm the judgment of the district court.

I.

The following facts are undisputed.

Founded in 1972 by parents of autistic individuals,

Amego receives public

agencies.

A condition

funding and is

licensed by two

of licensing is

that Amego

state

provide

conditions

clients.

usually one

aggressive

that

ensure the

safety

Amego maintains a very

staff member to

client

and

supervision

members, eighteen hours a day.

-33

its

low client-to-staff ratio,

two clients.

required

well-being of

One particularly

by

three

staff

Amego has a policy of not

its help.

rejecting those who seek

Most of its clients engage in aggressive and self-

injuring behavior, including self-mutilation.

rejected

by,

or

discharged

from, other

Many have been

agencies.

Most

clients are on prescription medications, and in June of 1992,

all

clients

at

the

Mansfield residence,

save

one,

were

receiving prescription medications.

Consistent

integration,

Amego

with

its

provides

philosophy

its

clients

community activities on a regular basis.

are

transported daily

they frequently

to the

are taken

bowling alleys, banks, and the like.

with

attempted

access

to

Residential clients

Day Treatment

by direct

of

Program, where

care staff

to stores,

In

September

Behavior Therapist.

not represent

1990,

Amego hired

Guglielmi

She was then about 21 years old

herself to

1991, she was diagnosed

have any

disability.

In

as

and did

January

as bulimic and clinically depressed;

however, she did not tell her employer about these conditions

until

after her first suicide attempt, over a year after the

diagnosis.

She was prescribed

Prozac in 1991,

partially alleviated the depression.

drug in April.

but it only

She stopped taking the

In the fall of 1991, she

started living with

her boyfriend, David Andrade, who worked at a different Amego

residence.

Andrade used

That

relationship

cocaine; Guglielmi,

-44

was fraught

with

however, says she

problems.

did not

confirm

early

her suspicions

1992, she

of that

started

until late

seeing a

June 1992.

social worker,

In

Margaret

Posever, for bimonthly therapy sessions.

Earlier,

the

1991, Guglielmi was

promoted to

position of Team Leader at the Mansfield residence.

essential

the

in July

functions of

day-to-day

that position

implementation

of

The

included: supervising

individual

clinical,

educational, and vocational programs and

data collection for

all programs; serving as a role model for

staff in all areas

of

client programming,

client

practice; assessing staff

training,

support, and

and

and

performance, providing

counseling as

that Amego's policies and

implemented

services,

professional

additional

appropriate; ensuring

procedures on clients' rights were

documented;

responding

crisis situations; and administering and

appropriately

in

documenting the use

of prescribed medications.

On March 4, 1992, Guglielmi received a

evaluation which

The evaluation

1992.

said she was an

was based on her

performance

"exceptional" Team Leader.

performance through January

In the spring of 1992, Guglielmi applied for promotion

to

the position

residence.

The

of

Program Coordinator

promotion

instead went

for the

Mansfield

to Kristen

Stone.

Stone assumed her new responsibilities on May 4, 1992.

That

overdose

of

same

day,

Guglielmi

nonprescription sleeping

-55

deliberately

pills

took

which she

an

had

purchased for that purpose.

After taking the pills, she told

Andrade what she had done; he took her to the emergency room.

She was

later

transferred to

that evening.

a psychiatric hospital

She

told health care

workers that she

attempted suicide

because she was

relationship with

her boyfriend, her failure

upset by problems

promotion, and other work-related stress.

to

in her

to receive the

She was readmitted

the psychiatric hospital on May 6, 1992, and stayed there

until

day

and released

May 12 because

of concerns about her

safety.

On the

of her readmission to the hospital -- two days after her

suicide

attempt -- Guglielmi

safety" with

that even

was not able

her therapist Posever.

if she were to

to "contract for

Guglielmi told Posever

so contract, her mood

was in such

flux that

anyway.

she could not be

sure she would not

hurt herself

A week after returning to work, and again

two weeks

later, she told Posever that she felt suicidal.

When Guglielmi returned to work on May 13, she told

her

supervisor

bulimia

attempted

work

and

only

depression.

suicide.

schedule so

thrice weekly.

that

Her

However, Guglielmi

She

that

she had

She

been

did

not

hospitalized

say

asked her supervisor

she could

attend

that she

for

had

to modify her

therapy twice

or

supervisor agreed to this accommodation.

stopped

going to

after a few weeks.

-66

the

therapy

sessions

On May 21, 1992, Guglielmi began seeing Dr. Kenneth

Levin for psychopharmacological treatment.

as suffering

Prozac

and

medication.

from bulimia and

trazodone, and

Prozac

was

Dr.

Levin

that she

had

diagnosed her

major depression,

saw her

one of

administered to Amego's clients.

He

to

prescribed

monitor her

use of

the medications

regularly

On June 4, 1992,

she told

experienced

periodic feelings

of

increased

depression,

including

contemplated overdosing.

period

when

she

She assured Dr. Levin that if such

thoughts recurred, she would not act on them but would inform

her boyfriend

or a health care

provider.

She did

not keep

her word.

On June 13, Guglielmi deliberately overdosed again,

this

time using

trazadone, as

she

called

hospital.

health care

she

prescription

well as aspirin.

the Plainville

medications, Prozac

After taking

police,

who

took

She was released on June 15, 1992.

and

the overdose,

her

to

the

She told her

providers that she was not really depressed when

overdosed

boyfriend.

her

but wanted

When Guglielmi

to

provoke a

reaction

returned to work on June

from her

17, she

again

did

not tell

her

employer

that she

had

returned

to

attempted

suicide.

On

the

day

Guglielmi

work,

the

Executive Director of Amego, Caryn Driscoll, and the Director

of

Administrative

Services,

Karen

-77

Seal,

met

with

David

Andrade

about his

meeting, Andrade

drugged

at

location

job

performance problems.

mentioned

the Fales

rumors that

During

clients were

Road residence.

He worked

this

being

at that

regularly, and Guglielmi worked there occasionally.

Around that time, Driscoll learned

that Klonopin, one of the

medications prescribed for clients, was either missing or was

being

used

residence.

at

an

accelerated

rate

at

the

Some cocaine users take Klonopin

Fales

Road

as an antidote,

to calm them down from the effects of cocaine.

Amego

investigated

clients at the Fales

have

and

found

that

four

Road residence (two of whom

of the

should not

had Klonopin at all) had blood levels of Klonopin which

were too high.

Amego asked any employees who

had pertinent

information

to

interviewed

on June

Officer, and

step forward.

26

Guglielmi

by Driscoll,

a private investigator.

Guglielmi focused

did so

Amego's Human

on her relationship with

for

suffering from

the first time

attempt

to explain

that he had helped

was

Rights

During the interview,

Andrade, who she

feared might be targeted in the investigation.

she was

and

bulimia and depression

She said that

and revealed

her two recent suicide

attempts.

In an

Andrade's performance

issues, she

said

her when she attempted suicide

-88

two times

by

overdosing

on

both

prescription

and

over-the-counter

drugs.1

Earlier,

Mansfield residence,

on

June 5,

shift

Chester Millet,

medication log was missing.

had

supervisor at

the

noticed that

the

He conducted a thorough search,

including behind the medication cabinet, and did not find it.

Guglielmi also

helped look for it.

On the same

day of her

interview with Driscoll, June 26, Guglielmi reported that she

had found the missing medication

been behind

the wall.

there

log.

She said the log

the medication cabinet, between

had

the cabinet and

Millet told Driscoll that he had previously looked

and

had

not seen

it.

Although

Driscoll did

not

initially consider Guglielmi under suspicion for the improper

drugging

of patients

members

Fales Road,

found the discovery of

peculiar.

supply

at

of

review of

drugs

excessive.

It

on

was not

she

the book by

the medication log

hand at

and other

the

staff

Guglielmi to be

showed that

Mansfield

possible to determine

the

residence was

from the

log

whether medications were missing.

On

June 26,

Driscoll

spoke

with the

Plainville

police about her

concerns about the drugging

of patients at

____________________

1.

During the interview, Guglielmi was asked whether she had

observed or

suspected that Andrade

answered "no" to both

true.

questions.

was using cocaine.

The latter answer

She

was not

Discovery in this case revealed that she had spoken to

her therapist about her suspicions of her boyfriend's cocaine

use as early as May 27, 1992.

-99

Fales

Road.

The police told Driscoll that they found pills,

initially thought to be Klonopin, in Guglielmi's apartment on

the night they responded to her suicide call.

Around June

Carlos

Andrade,

brother.

Amego

mood

problems,

He reported that staff

swings,

and

call

David

from

Andrade's

asked him to do something

members were uncomfortable

that she was erratic in

seemed to

be

focussed

on her

behavior,

personal

that she was seen walking outside and crying, that

she was heard fighting

that she

received

employee

was suffering and had

with her job performance,

had

Driscoll

He told her that staff members felt Guglielmi's job

performance

about it.

an

28,

on the phone with David

was self-absorbed and unable to

Andrade, and

concentrate on her

job.

Carlos

shift

the

Andrade

also passed

on

that

Millet, the

supervisor and one of the most senior staff members at

Mansfield residence,

suddenly handed him the

it in the residence

Driscoll confirmed

had never

was

concerned that

Guglielmi had

drug log, saying that she

had found

when he had searched everywhere

Carlos Andrade's report with

before complained about another

for it.

Millet, who

employee.

Carlos

Andrade felt that Guglielmi was not performing her job safely

and was putting clients at risk.

way

to prevent

Guglielmi from

while she worked at Amego.

-10-

Driscoll knew

having access

there was no

to medication

10

Guglielmi in

her

position

few days

later,

writing that

as Team

perform clerical

on July

1, Driscoll

she was temporarily

Leader

and

would be

and other light duties.

informed

removed from

reassigned

The letter stated

that the fact that

Guglielmi's recent hospitalizations

the

deliberate

result

of

overdoses

to

of

were

prescription

medications raised

"concerns about [her] ability

[her]

functions including

present job

dispensing and shift supervision."

to perform

medication ordering,

The letter also indicated

that Amego's Safety Committee would meet to determine whether

Guglielmi could

with

or

perform her

job, or another

without accommodations.

Committee

should seek

Driscoll

medical information

available job,

said that

the

from Guglielmi's

treating physician.

In an

Guglielmi's

letter

perform

perform,

attempt to obtain a

ability to

to Posever on

eleven

duties

resume her

July 1 asking

that a

Team

set forth on a checklist.

professional opinion on

duties, Driscoll

sent a

whether Guglielmi could

Leader

would

need to

The letter came back to

Amego on July 8 with a check in the "yes" column for each job

duty.

Only Guglielmi had signed the bottom of the checklist.

Driscoll

accurately

complete

called

Posever to

reflected Posever's opinion

the duties

or

Guglielmi's own opinion.

whether the

ask if

the checklist

that Guglielmi could

list merely

reflected

Posever told Driscoll she was not a

-1111

medical

doctor,

that

medical competency

nor was

that,

the

checklist did

evaluation as to each

it a guarantee regarding

based

on

her

not

with

work and treatment history,

reason

Guglielmi could

Posever's

checking "yes"

Guglielmi's demeanor and

It

on her

on Guglielmi's

and

her

Posever had no

not perform

was based

was rather

Guglielmi

knowledge of her

to think

specific job duty,

each duty.

discussions

represent

those duties.

observations of

statement that

she

felt comfortable giving out psychotropic medications at work,

even in light

dissatisfied

of her

with

the

definitive opinion,

Driscoll

told

suicide attempts.

response

and

Driscoll

pressed

which Posever declined to

Guglielmi

that

Posever's

for

give.

appeared

more

Later,

response

was

inadequate.

On

July

22,

Driscoll

requesting his opinion as

sent Dr.

letter

Guglielmi

concluded:

was

dated July

27,

no longer

on

"My understanding

performed

her

and I see

no difficulty

regular job

position."

There

received.

Driscoll

letter

enclosing the checklist.

1992,

Dr.

prescription

is that

Levin wrote

she has

He

consistently

responsibilities conscientiously

to her

checklist with

the letter

viewed

that

medication.

with her returning

was no

largely being based on

to whether Guglielmi could perform

the eleven functions of her job and

In

Levin

Dr.

Levin's

Amego

conclusions

what Guglielmi said she could

-12-

regular

as

do and

12

her representation that she had no performance problems.

Driscoll

knew from

range of performance

staff

complaints that

problems.

Guglielmi had

And Driscoll

Dr.

fact performing well.

Levin's letter

did

Driscoll told

not adequately

deal

knew Dr. Levin

had not checked with anyone at Amego about whether

was in

But

Guglielmi

Guglielmi that

with the

job

functions issue.

Driscoll

was

also concerned

Amego's charges would feel

at

risk

by

being

in

prescription drugs.

that the

parents of

that their children would be

the

care

of

someone

who

put

abused

The parents, she felt, would contact one

of the state agencies which licensed Amego.

On

July

21,

the

Committee

was comprised

Director

of

Safety

of four

Administrative

Coordinator,

who

Coordinator;

and

was

the

Compensation Coordinator.

met.

The

administrators: Seal,

Services;

nurse;

the

Administrative

Amego's

Staff

the

Health

Development

Assistant/Workers'

The Committee found that Guglielmi

was not in fact performing her

performing them well.

Committee

job duties conscientiously or

The Committee concluded that Guglielmi

could not

there

safely perform the

was

no

Amego

Team Leader position

position

that

could

be

and that

modified to

accommodate her.

On July

informed of

27, 1992,

Amego's Board of

the recommendation of the

-1313

Directors was

Safety Committee and,

after

additional

alternative

discussion, concluded

position that could

that

there

was no

accommodate Guglielmi.

The

following day Driscoll informed Guglielmi that her employment

was

terminated.

Guglielmi

could

Amego

not

says

meet

its

core

concern

the essential

job

was that

function

of

handling prescription medication.

II.

The district

Amego,

court

finding that the EEOC

entered summary

had failed to

judgment

for

meet its burden

under the ADA of showing that Guglielmi was qualified for the

position

of Team

Leader and

reasonable accommodation.

the EEOC

that Amego

could have

made a

The district court also found that

had failed to meet its burden of showing that Amego

had

discriminated

against

Guglielmi

"because

of"

disability.

The scope

of appellate review of

entry of summary

judgment in ADA cases, as in all others, is de novo.

__ ____

v. Guilford, 105 F.3d 12, 14

________

the

burden

of

showing

(1st Cir. 1997).

that

Guglielmi

was

Soileau
_______

The EEOC bore

qualified

to

perform, either with or without reasonable accommodation, the

essential

functions of

her job.

See
___

Jacques v.
_______

Clean-Up
________

Group, Inc., 96 F.3d 506, 511 (1st Cir. 1996).2

___________

____________________

2.

To

prove

establish a

claim under

by a preponderance of

disabled within the

the ADA,

a plaintiff

the evidence: (1)

meaning of

the ADA; (2)

must

that she was

that, with

or

without reasonable accommodation, she was able to perform the

essential

functions of her job (in other words, that she was

-1414

For summary judgment

dispute

that

Guglielmi was

meaning of the ADA.

function

of the

It

purposes, the parties do

disabled

the

is also undisputed that an essential

Team Leader position

monitor the medication

person within

not

is to

of Amego's clients.

administer and

The written job

description provides that this

is an essential job function,

and the EEOC concedes that Team Leaders have access to locked

medicine cabinets containing

large quantities

of drugs

and

are expected to administer medications to clients.

This case initially turns

met

its burden of

person.

showing that Guglielmi

Amego's position is that

employment because

and

could not reasonably be

as to medications.

be

understood

to

it terminated Guglielmi's

-- by behavior

have concerns about whether

and by

using prescription

was a "qualified"

she showed by her conduct

leading co-workers to

risk to clients

on whether the EEOC has

her two attempts

she was a

to commit

non-prescription drugs

suicide

-- that

she

trusted to meet her responsibilities

Although the qualification analysis could

subsume

the

concept

of

reasonable

accommodation, we think it

analytically sounder to treat the

____________________

"qualified");
whole or
F.3d at

and (3)

that the

employer discharged

in part because of her disability.

511; Katz v.
____

court

used

the

See Jacques, 96
___ _______

City Metal Co., Inc., 87 F.3d

____________________

(1st Cir. 1996); see also 42 U.S.C.

___ ____
largely

similar

12112(a).
formula

her in

26, 30

The district

under

McDonnell
_________

Douglas Corp. v. Green, 411 U.S. 792 (1973), for establishing

_____________
_____
a

prima facie

case of

appropriate here.

discrimination.

See Katz, 87 F.3d at 30.

___ ____

-1515

Either

formula is

two topics separately.

Davis,
_____

442

U.S.

397,

Cf. Southeastern Community College v.

___ ______________________________

406

(1979)("An otherwise

person [under the Rehabilitation

meet

all

of

program's

Act] is one who is

requirements

in

spite

qualified

able to

of

his

handicap.").3

Qualification/Direct Threat Under Title I of the ADA

____________________________________________________

To understand the EEOC's

it is necessary to

burden of proof argument,

understand the ADA statutory scheme.

At

its core, Title I of the ADA is about protecting the disabled

from

discriminatory employment

and fear.

See H.R. Rep.

___

action based

on stereotypes

No. 101-485, pt. 3,

at 45 (1990),

reprinted in 1990 U.S.C.C.A.N. 445, 468; see also Jacques, 96

_________ __
___ ____ _______

F.3d at 511.

an

The prima facie case establishes

individual

suffered

with

adverse

disability,

employment

the employer

discrimination

no evidence

is

action

may have

the ADA is

plaintiff has failed to

is

disability

qualified,

because

engaged in

designed to

that because

prevent.

yet

of

the

presence of

that

type of

Here, the

establish a prima facie case:

suggesting the

has

there

any disability-

based discrimination.

The general

rule of

the ADA

is that

an employer

shall not "discriminate against a qualified individual with a

disability because

of the disability .

. . ."

42 U.S.C.

____________________

3.

As

explained

Rehabilitation
U.S.C.

below,

caselaw

interpreting

Act of 1973 is applicable to the ADA.

the
See 29
___

794(d).

-1616

12112(a).

the

It is generally accepted that, in a

plaintiff

bears

the

burden

of

showing

Title I case,

she

is

"qualified" individual.

A qualified

essential

functions

1630.2(m).

The

See Jacques, 96 F.3d at 511.

___ _______

individual is one who

of

the job

statute

'qualification standards'

individual

12113(b).

It

significant risk

defines

to

also

See
___

says

29 C.F.R.

that

"the

may include a requirement

shall not pose a

safety of other individuals

held.

can perform the

direct threat to

the health

threat"

or

42

as

safety of

The

rub

is

that

the

U.S.C.

meaning

others

cannot be eliminated by reasonable accommodation."

12111(3).

that an

the health or

in the workplace."

"direct

term

"a

that

42 U.S.C.

language

about

"qualification standards" under Title

I appears in a section

of the

42

statute entitled "Defenses."

U.S.C.

12113(a)

("It may be

[the

ADA]

a defense

that

an

to a charge

alleged

of discrimination

application

of

qualification

standards . . . has been shown to be job-related.")

argues

that the employer bears

under

the burden of

The EEOC

proof on this

affirmative defense.

The EEOC

threats to

the safety or health

Title I case, it

provision

argues further that whenever

of

of others is involved

must be analyzed under the

12113(b)

as

an

Specifically, the EEOC contends that the

-1717

an issue of

in a

"direct threat"

affirmative

defense.

12113(b) provision

that qualification standards

an

individual not be

context

supports

of the

a direct threat

defense set

its position

"Defenses."4

Thus,

may include a requirement

out in

is to be

12113(a).

by noting that

the EEOC says, the

12113

that

read in the

The

EEOC

is captioned

district court erred

in considering the matter of whether Guglielmi posed a threat

to

the

safety

of

Amego's

clients

"qualification," on which plaintiff

as

matter

bears the burden.

of

Amego

contends

that the risks posed to others may be considered as

part

the qualified

of

specific discussion

individual

of a

analysis,

and that

direct threat defense

in

the

12113

____________________

4.

The

confusion

legislative

on

this

history.

Representative

point

During

Dannemeyer

is

reflected

congressional

asked

in

the

hearings,

witness,

who

had

contributed to the drafting of the ADA, who had the burden of

proof on the direct threat issue
context.

Comm.

Representatives,

on
101

Disabilities Act
_________________
replied

Educ.

in the communicable disease

and

Cong., 1st

1896

(Comm.

Labor,

House

of

Sess., The Americans with

___________________
Print 1990).

The

witness

that the plaintiff, as part of his prima facie case,

would have to put on

evidence that his communicable

would not pose a direct threat to others.

There

U.S.

is also

caselaw establishing

disease

Id.
___
that

even under

"direct threat" analysis, the

"employee retains at all times

the

jury either that

burden of persuading the

direct

threat

or

that

reasonable

he was not a

accommodations

were

available."
447 (11th

Moses v. American Nonwovens, Inc., 97 F.3d 446,

_____
________________________
Cir. 1996)(per curiam)(citing Benson
______

Airlines, Inc.,
______________

62 F.3d 1108,

1112 (8th Cir.

denied, 117 S. Ct. 964 (1997).

______
for the employer
product
Moses
_____

in an

inspector
court

that

nonmoving party must

that

ADA action brought

Id.
___

by an

epileptic

near

exposed

machinery, the

to defeat

summary

judgment,

raise "significant probative

is "sufficient" for the

that party."

1995)), cert.
_____

In affirming summary judgment

who worked

noted

v. Northwest
_________

jury "to return

at 447 (citing Anderson v.

________

Inc., 477 U.S. 242, 249 (1986)).

____

-1818

the

evidence"

a verdict for
Liberty Lobby,
______________

does not preclude the consideration of

safety risks in other

prongs of the ADA analysis.

Because

the

resolve this debate,

determine

whether

statutory

we look to

risks

scheme

does

not

the legislative history

posed

to

others

may

considered in the direct threat defense context.

States v. Charter Int'l Oil Co., 83 F.3d

______
______________________

1996).

clearly

Upon such review, we discern

only

to

be

See United
___ ______

510, 517 (1st Cir.

no congressional intent

to preclude the consideration of essential job functions that

implicate

the

safety

of

others

"qualifications" analysis, particularly

as

part

where the

of

the

essential

functions of a job involve the care of others

unable to care

for

that,

themselves.

definition of

codify

The

House

Report5

"direct threat,"

"[t]he Committee

the direct threat standard used

in School Board of Nassau County

_____________________________

Report goes

otherwise

qualified

disqualified on the

on to

for

the

intends to

H.R. Rep.

No.

U.S.C.C.A.N. at 457.

The

say that,

"[i]f the

the

he

job,

in

by the Supreme Court

v. Arline."
______

101-485, pt. 3, at 34 (1990), 1990

House

said

or

basis of a physical or

applicant is

she

cannot

be

mental condition

____________________

5.

The report

based

on fears

was concerned about exclusion

or stereotypes,

rather than

evidence about the individual involved.

of individuals
on "objective"

Thus, in the case of

a person with mental illness there must be objective evidence

from

the

person's behavior

that

the person

has

a recent

history

of committing

overt

acts or

making threats

cause harm or which directly threatened harm.

which

H.R. Rep. 101-

485, pt. 3, at 45-46, 1990 U.S.C.C.A.N. at 468-69.

-1919

unless

the

disability

. . .

poses no

employer can

demonstrate

that

the applicant's

poses a direct threat to others in the workplace.

The plaintiff is not required to prove that he or she

risk."

Id. at
___

46, 1990 U.S.C.C.A.N. at

469.

The

intent to codify Arline suggests that

______

the

burden

is

on

plaintiff to show that he or she is qualified in the sense of

not

posing a direct threat.

be part of

Arline considered that issue to

______

the "qualification"

which plaintiff bears the

analysis under

burden.6

504 as

See Arline, 480

___ ______

to

U.S. at

287-88.

The

ADA

also

contains

a directive

that

it

be

enforced in a manner that is consistent with the requirements

of the Rehabilitation

Courts

therefore

Rehabilitation

Act,

interpreting the ADA.

Act of

1973.

use

caselaw

29

U.S.C.

42

U.S.C.

under

See 29 U.S.C.
___

794,

12117(b).

504

for

of

guidance

the

in

794(d)("The standards

used

to

determine

whether

this

section

504

of

the

Rehabilitation Act] has been violated in a complaint alleging

employment

discrimination under

this section

shall

be the

standards applied under Title I of the [ADA]."); Katz v. City

____
____

Metal Co., Inc., 87 F.3d 26, 31 n.4 (1st Cir. 1996) (Section
________________

504 of the

Rehabilitation Act "is interpreted

substantially

____________________

6.
not

While the language of the "direct threat" provision is

limited

communicable

to

instances

diseases,

the

communicable disease context.

where

the

provision

threat

comes

originated

in

from
the

See H.R. Rep. No. 101-485, pt.

___

2, at 76, 1990 U.S.C.C.A.N. at 358-59.

-2020

identically to the ADA.").

Under

504, it is clear that the

question

of whether

the employment

risks to

the health

of others

whether

the person

1997 WL 85096,

goal

is analyzed

is "otherwise

U.S. at 287; see also Abbott

___ ____ ______

at *7 (1st

of the

plaintiff poses

as a

qualified."

matter of

Arline, 480
______

v. Bragdon, --- F.3d ---,

_______

Cir. March

5, 1997) ("A

---,

court's

in conducting a direct threat analysis under the ADA is

to achieve a reasonable balance, protecting service providers

. . .

from

safety

enforced

risks"

exposure

while

to

unacceptable health

protecting

the

disabled

and

from

discrimination.).

In Arline,
______

threat

to others

disease was

the Court

posed by an

held that

employee with

properly analyzed as

of

communicating

workplace

at 287

disease

significant risk

to

others in

the

will not be otherwise qualified for his or her job

if reasonable

Id.
___

whether the

Arline, 480 U.S. at 287.

______

a "person who poses a

an infectious

of the

a communicable

a question of

employee was "otherwise qualified."

The Court noted that

the issue

accommodation will

n.16.

whether the plaintiff

Arguably,

in

not eliminate that

Arline, the
______

could perform the core

risk."

question

of

functions of a

school

whether

teacher's

she

job

was

nonetheless

communicable disease.

Here,

separate from

posed

risk

the

question

because

of

of

her

the questions are not separate:

-2121

the issue of risk posed to others arises in the

context of a

core function of the job.

The

Rehabilitation

EEOC correctly

Act,

the

points

ADA's

out that,

definition

unlike

of

"qualified

individual" does not address risk posed to others.

is

true

that

Rehabilitation

handicaps"

the

implementing

Act

define

"qualified

specifically to include

health and safety of

1614.203(6),

regulations

While it

under

individual

intended

the

with

"without endangering the

the individual or others," 29

Congress

the

the

ADA's

C.F.R.

definition

of

"qualified individual with a disability" to be "comparable to

the definition used in

and section 504

of the

regulations implementing section

Rehabilitation Act of

1973."

Rep. 101-485, pt. 2, at 55, 1990 U.S.C.C.A.N. at 337.

501

H.R.

The EEOC

broad.

position which

is far

too

This is not a case where a person who can perform all

essential job

The

stakes out a

functions nonetheless poses a

district court

considering

risk

did

posed

not, we

to

believe,

others under

"qualification," where the risk

risk to others.

commit error

the

category

in

of

is expressly associated with

performance of an essential job function.

The

judgment that

precise

issue here

Guglielmi could not

medication-related functions

failure to

perform an

concerns

be trusted to

of her job.

In

essential function --

-2222

the employer's

handle the

this case,

overseeing and

administering medication --

to

others.

correctly

ability

That

creates a

to

qualification.

perform

would necessarily create a

failure

risk to

that

to

perform

others does

function

job

risk

function

not preclude

from

being

the

job

The position argued by the EEOC would lead to

the anomalous result that there is a lesser burden of proving

qualifications on a plaintiff where the job involves the care

of others, and necessarily entails risk to

the

job does not.

We do

not believe

others, than when

Congress intended to

weaken the burden on plaintiffs to show they are qualified in

such circumstances.

In such

for ensuring the

cases, where

safety of

the employee is

others entrusted to

care, other courts, without discussion

raises,

his or

her

of the point the EEOC

have simply considered the risk

of the "qualified" analysis.

responsible

question to be part

See, e.g., Doe v. University of

___ ____ ___
_____________

Maryland Med. Sys. Corp., 50 F.3d 1261, 1265 (4th Cir. 1995);
________________________

Altman v. New York City Health and Hosp. Corp., 903 F.

______
____________________________________

503, 509-10 (S.D.N.Y. 1995); Mauro v.

_____

Supp.

Burgess Med. Ctr., 886

_________________

F. Supp. 1349, 1352-53 (W.D. Mich. 1995).

We

hold that,

plaintiff's burden to

in a

Title I ADA

show that

he or she

case, it

is the

can perform

the

essential functions of the job, and is therefore "qualified."

Where those essential job functions necessarily implicate the

safety

of others,

plaintiff must

-2323

demonstrate that

she can

perform

those

functions in

others.

There may

be other

issue of direct threat is not

way that

cases under

does

not endanger

Title I

where the

tied to the issue of essential

job functions but is purely a matter of defense, on which the

defendant would bear the burden.

This case does not raise or

resolve

"direct threat"

under

issues of

other

parts

accommodation title.

the

role of

of

the

ADA,

Cf. Abbott,
___ ______

reasons which follow, we

such

as

provisions

the

1997 WL 85096.

public

For

the

conclude plaintiff's burden was not

met.

Appropriateness of Summary Judgment

___________________________________

The EEOC argues that

a jury question is presented,

in any event, as to whether the evidence showed Guglielmi was

qualified.

This is not, we think, a close question.

We set

the context.

burden of demonstrating that

Guglielmi did

she is qualified.

this record no suggestion that

standards differentially.

qualified to

Instead, the

handle the

EEOC attempts

essential medication

to derive from

that

employer's

evidence

different

discrimination.

of animus

its

similarly situated employee to

over whether Guglielmi is

disability

is in

the employer has applied

with Amego

the

There

her

The EEOC presents no evidence that

the employer has ever found a

be

not meet

is present,

its disagreement

qualified an inference

assessment

However,

function.

is

where,

courts may

as

based

on

here, no

give reasonable

-2424

deference to

demands.

Cir.

the employer's assessment of

what the position

See Doe v. New York Univ., 666 F.2d

___ ___
_______________

1981)(finding

that,

in

case

involving

761, 776 (2d

mentally ill

applicant to medical school, "considerable judicial deference

must

be

paid to

the

evaluation

made by

the

institution

itself, absent

of them serve

handicapped

442

U.S.

proof that its standards

no purpose other than to

persons");

at 406

and its application

deny an education to

cf. Southeastern Community College,

___ _______________________________

(supporting

reasonable

deference to

the

decisions made by administrators of federally funded programs

so

long as no evidence is presented of discriminatory intent

with regard to the handicapped person).

The

requirement

of

showing "qualifications"

substance, notwithstanding the frequent leapfrogging

analysis

to

Douglas.7
_______

get

In

to

the

the context

pretext

of academic

court has been attentive to the need

plaintiff

to

be

issue

free from

under

tenure

has

of that

McDonnell
_________

cases, this

to balance the right of

discrimination

against

the

undesirable result of having the court sit as a "super-tenure

committee."

See Villanueva
___ __________

v. Wellesley College,
_________________

930 F.2d

____________________

7.

The

ADA is interpreted in a manner similar to Title VII,

Soileau, 105
_______

F.3d at 16, and courts

have frequently invoked

the familiar burden-shifting analysis of McDonnell Douglas in

_________________
ADA cases.

The

is frequently met
the

qualification prong of the prima

by a showing

that the employee

prerequisites for the position and

facie case
satisfied

that she can perform

the essential functions of the position held or desired.

42 U.S.C.

12111(8); 29 C.F.R.

-2525

1630.2(m).

See
___

124, 129 (1st

denied

least

Cir. 1991).

tenure must

comparable

show

Thus, plaintiffs

that their

to those

of

exercise of

Banerjee
________

1981).

that

tenure could

of

granting tenure

be justified as

discretion by the tenure-decision

v. Board of Trustees,
__________________

been

qualifications are

"middle group

candidates as to whom both a decision

decision denying

who have

648 F.2d

at

tenure

and a

a reasonable

making body."

61, 63

(1st Cir.

Aware of the fine balance of competing considerations

preserve academic

freedom, this

court has

noted that

"[i]n tenure cases, courts must take special care to preserve

the University's autonomy in making lawful tenure decisions."

Brown v. Trustees of Boston Univ., 891 F.2d

_____
__________________________

337, 346

(1st

Cir. 1989).

Similar care is required here.

has presented no

Where the plaintiff

evidence of discriminatory intent,

animus,

or even pretext, we think there should be special sensitivity

to

the

danger

committee.

cited

cases,

of

the court

Unlike the

Amego is

becoming

super-employment

academic institutions in

the above-

a small

history of

employment decisions is neither

employer.

Its

lengthy nor detailed, making

it difficult to assume, without help from plaintiff, that the

qualification

standards

it

different from those required

asserts

for

Guglielmi

of other employees.

are

Plaintiff

has failed to provide such help.

we

review the

facts.

We are

It is in this context that

also mindful

of the

Arline
______

-2626

factors for assessing whether an employee poses a significant

risk to others.

Cf. Arline, 480 U.S. at 288.8

___ ______

It

concerned

was

eminently

reasonable

whether

Guglielmi

about

for

Amego

could

to

meet

be

her

responsibilities, and also reasonable for it to conclude that

the risk was too great to run.

The employer's judgment here

about the risks of future behavior by an employee is based on

past behavior and reasonable indicia of future behavior.

First,

extremely

the nature of the risk was such that it was

difficult

to guard

against.

particularly vulnerable to abuse

to

insure that

they were

or neglect.

properly treated

their medications, other than

not obvious.

The clients

were

The mechanisms

with regard

to

having trustworthy staff, were

Amego had just learned that, despite its normal

procedures, four

patients at

overly medicated and

the Fales Road

residence were

that it could not determine whether any

medications

were missing.

Testing the

clients' blood

to

determine whether they had received the correct dosage level,

or

indeed

the

correct

drugs,

has

to

be

considered

an

extraordinary step, and not a safeguard which could routinely

____________________

8.

In

health

determining whether
and safety risk

to others in

context, the Arline Court

______
following factors:
the

risk; the

third

poses significant

the contagious disease

suggested the consideration of the

the nature of

severity of

parties), and

an individual

the risk; the

the risk

duration of

(potential of

harm to

the disease

will be

the probabilities

transmitted and will cause varying degrees of harm.

conduct

our analysis of

the safety risk

Amego clients against this backdrop.

-2727

Id.
___

We

Guglielmi poses to

be

taken.

potential

great.

Additionally, the severity of the risk, i.e., the

____

harm to third parties, Arline, 480 U.S. at 288, is

______

The

potential outcomes

of administering

the wrong

medication to a client are obvious and extreme.

Second,

enhanced

unless

other

there

the likelihood

steps were

taken.

staff members, that

were

that

performance

the clients

Amego received

issues

could be

which

harmed

complaints, from

Guglielmi was unable

to focus on

her job

and

was a

serious

enough

risk

that

management, asking

of Guglielmi

which had

pause.

staff

members

finding the missing

Amego had reason

from

apartment on the

The

sent

an

Amego.

to fear that

When

night of her

emissary

the

was

to

The peculiarity

medication log at

a place

reasonably give Amego

Guglielmi would take

police

came

to

second suicide attempt,

pills they believed to be Klonopin.

by cocaine

situation

that something be done.

been searched earlier would

medications

found

to patients.

her

they

Klonopin is taken

users, and management suspected the man with whom

Guglielmi lived of being a cocaine user and of drugging Amego

clients.9

____________________

9.

Amego

did

not

learn

terminate Guglielmi's
them about
Because
the issue

until after

it

had

decided

employment that Guglielmi had

whether she

suspected Andrade of

lied to

using cocaine.

it is unnecessary to the decision, we do not address

of whether this after-acquired

evidence could, in

the context of the ADA, be used for purposes other

rationale for
the

to

terminating her employment, e.g.,

____

employer's

affected her

judgment that

ability to

than as a
to buttress

Guglielmi's untrustworthiness

perform an essential

job function.

-2828

Third, other measures

had not eliminated the

risk

of

Guglielmi

mishandling

despite counselling

suicide

a second

have access

Amego

and medication, Guglielmi

time using medication

knew

that,

had attempted

and that

she would

to Prozac at work, one of the drugs used in this

second attempt.

greater

medication.

The EEOC

says that Amego

confidence in Guglielmi because

prescription

for drugs after

should have

had

she no longer had a

the second attempt.

There is

cold comfort in that: this fact increased the likelihood that

Guglielmi

would use the drugs available to her at work for a

third attempt.

Amego also knew that despite its provision of

a work schedule accommodation,

to the therapy sessions

Guglielmi soon stopped

she said she wanted to

her first suicide attempt.

going

attend after

Amego knew that by concealing her

suicide attempts

Guglielmi had misled them

about the nature

of her previous absences from work.

Fourth,

Guglielmi's health

when

Amego

sought

reassurance

from

the

responses were

not

care providers,

confidence-building.

Posever, the

social

worker, neither

responded to the substance of the request for information nor

____________________

Cf.
___

Mantolete
_________

1985)(holding
discovered
condition
showing

v. Bolger,
______
that,

evidence
is

in

767

F.2d

1416, 1424

Rehabilitation

as

admissible to

of qualification).

to

Act

plaintiff's
rebut
But
___

(9th

case,
actual

plaintiff's
cf. McKennon
___ ________

Cir.
later-

medical

prima facie
v. Nashville
_________

Banner Publ'g Co., 115 S. Ct. 879, 885 (1995) (holding that,
__________________
in ADEA

cases, after-acquired evidence

justify discriminatory

discharge, though

limit plaintiff's recovery).

-29-

may not

be used

it may be

to

used to

29

signed

her

checklist,

name

to the

checklist.

Driscoll telephoned Posever.

declined to give

After receiving

Posever explicitly

a psychiatric medical opinion.

the psychopharmacologist, gave

a brief response

could

to

reasonably

understand

be

the

Dr. Levin,

which Amego

unresponsive

to

its

concerns and to be based on Guglielmi's own assessment of her

ability to do the work.

We also

credit

the deliberative

which Amego made its decision.10

including

that

considered

This

from

deliberative process

employer

based

its

that Amego, which

mentally

decision

which

had

as

to

There

had considerable

acted on the

advisors,

before reaching

handicapped persons and

community,

medical

undercuts any

stereotypes about disability.

schedule

so

that

she

on

can be no serious claim

experience dealing

basis of the

could

that the

qualifications

integrating them

accommodations.

and

its decision.

argument

It

receive

with

into the

stereotypes and fears

Congress wished to counteract in the ADA.

earlier made

through

It sought additional input,

Guglielmi's

other information

process

Also, Amego

modified Guglielmi's

treatment

and

was

supportive

of her efforts to

deal with her

condition.

See
___

Soileau, 105 F.3d at 17.

_______

____________________

10.

As the district court noted, the irony is that, if Amego

had acted with less deliberation, the employment action would

have

been taken before the

effective date of

the ADA.

The

ADA became effective a few days before Guglielmi's discharge.

-3030

Amego also operated in a context which added weight

to the risks it

thought Guglielmi posed.

Amego

is licensed

by two state agencies and is required to take steps to assure

the

safety of

its patients.

harmed from misuse

If a

single client

of medication, then Amego

had been

stood the risk

of losing its licenses and its ability to care for any of its

clients.11

Under these

differential

proffered,

weight.

circumstances,

treatment,

the

The

discrimination, or

employer's

EEOC's

where no

judgment

is

of

stereotyping is

entitled

"Interpretive Guidance"

regulations notes that the

evidence

to

inquiry into essential

to

some

its

ADA

functions

is

not

intended

to

second-guess

an

employer's

judgment regarding production standards,

or

quantitative.

business

whether qualitative

EEOC, Interpretive Guidance on Title I of

____________________________________

____________________

11.
be

In Arline, the Supreme Court noted that deference should

______
given to the judgments

the

analysis

Arline, 480
______

of

of public health

whether

U.S. at 288;

an

individual

cf. Abbott,
___ ______

officials as to
is

"qualified."

1997 WL 85096,

at *9

(reasoning that deference of "prima facie force is due public

health officials").
here.

But it

regulatory
condition of
to

operate

the

such direct evidence

is noteworthy that

requirements

of

two

was presented

Amego was subject

public

to the

agencies.

As

receipt of public funds, Amego must be licensed

by

Retardation and
of

No

the

Massachusetts

Department

the Massachusetts Office for

requirements

for licensure

included

of

Mental

Children.

One

ensuring

the

safety

and well-being

of the

clients entrusted

to Amego's

care.

-3131

the Americans with Disabilities Act, app.

____________________________________

to 29 C.F.R.

pt.

1630.12

In somewhat similar

factual settings, other courts

have affirmed summary judgment on the issue of qualification.

In Doe
___

F.3d

v. University of Maryland Medical System Corp., 50

______________________________________________

at 1261,

employment

summary

the defendant

of an

HIV-positive doctor.

judgment on the grounds

"otherwise

qualified"

significant

risk to

through

medical center

was

so

patients that

reasonable accommodation.

infinitesimal

significant.

Id. The
___

that

court affirmed

that the doctor

individual

rejected the doctor's argument

The

terminated the

because

he

could not

Id. at 1266.
___

The court

that the risk of transmission

it

could

not

be

considered

employer had relied on recommendations

job functions fit

procedures.

posed

be eliminated

from the Center for Disease Control in analyzing

doctor's

was not an

Id. at 1264.
___

whether the

the definition of exposure-prone

The court expressed its reluctance

to substitute

Id. at 1266.
___

its judgment for

that of the

medical center.

In Bradley v. University of Texas M.D. Anderson

_______
_________________________________

Cancer Center, 3 F.3d 922 (5th Cir. 1993), the Fifth Circuit
______________

____________________

12.

It is

true that

the Interpretive Guidance

that the determination

not

be based

whether someone is qualified

on speculation

unable in the future."

also states

that the

Id.
___

employee may

This not such a case.

"should
become
Rather,

Amego based its determination on Guglielmi's capabilities "at

the

time

of

the

employment

suggests is appropriate.

decision,"

Id.
___

-3232

as

the

Guidance

affirmed

entry

of summary

judgment for

the employer

on a

Rehabilitation Act claim with similar facts.

Similarly,

Kinney
______

Shoe Corp.,
__________

the

Fourth

104 F.3d 683

Circuit

in

(4th Cir.

Martinson
_________

v.

1997), affirmed

summary judgment on the ground that an epileptic employee was

not qualified

to perform an

salesperson's

job

maintaining

store

at

security.

essential job

retail

See
___

store,

also
____

function of

which

Kohl v.
____

his

entailed

Woodhaven
_________

Learning Ctr., 865 F.2d

_____________

Hepatitis

930 (8th Cir. 1988) (finding

carrier

behavior would pose an

patient

who

displayed

that a

aggressive

unreasonable risk of transmitting the

disease to other patients and staff); cf. Arline, 480 U.S. at

___ ______

288.

Reasonable Accommodation
________________________

The

EEOC argues

Guglielmi

from

the

Therapist

position as

Behavior Therapist

respect

to

Leader

was required

position

a reasonable

would

to

accommodation.

position required no

medication, there

EEOC's position.

567, 570 (D.

Team

that Amego

Behavior

If the

responsibility with

be more

force

See Hurley-Bardige v. Brown, 900

___ ______________
_____

Mass. 1995)(finding

to move

that there is

to the

F. Supp.

"no per

se

rule against transfers

as reasonable accommodations").

But

the position did entail that responsibility.

Although

specifically

medication-related

mentioned

in

the

-3333

duties

Behavior

are

Therapist

not

job

description, the ability to handle,

medication

was inherently part

function,

as

listed

in

administer, and document

of the

Amego's

Behavior Therapist's

job

"implementing individual clinical and

description,

of

educational programs."

13

All

Behavior Therapists

administration of medications.

clients

on frequent

must dispense

supervision.

Leaders

are present,

medications

accept

at

the

deliveries

facilities.

Keys

into the

to clients

When

training in

the

Behavior Therapists accompany

off-site trips

medications

without

receive

no

Shift

community and

at appropriate

Supervisors or

the Behavior Therapists

residences.

of

client

to

the

Behavior

Team

must dispense

Therapists also

medications

medicine

times

cabinet

in

are

Amego's

easily

accessible to Behavior Therapists.

There is

legal

no

implications

material factual

of

these

Medication-related duties of

are

dispute;

facts are

in

true

of

time

the

dispute.

the Behavior Therapist position

essential, and not marginal, to the position.

amount

only

Behavior

Therapist

spends

While the

dispensing

____________________

13.

Evidence of whether

includes, but

is not

limited to, written

the employer's judgment as

the

is essential

job descriptions;

to which functions are essential;

amount of time spent on the job performing the function;

the consequences
the

a particular function

of not

requiring the plaintiff

to perform

function; and the work experience of those who are doing

or have done similar jobs.

29 C.F.R.

-3434

1630.2(n).

medication is not great, the consequences of getting it wrong

are quite great indeed.

There was no accommodation that Amego could make to

the Behavior Therapist position that would not cause it undue

hardship.

retain

See
___

42 U.S.C.

Guglielmi

while

medication-related duties,

12112(b)(5)(A),

eliminating

it would

all

12111(9).14

of

have been

To

Guglielmi's

necessary to

hire another

Behavior

Therapist to

ensure that she would never

needed

medication.

access to

additional

like

might

also

have

to ensure that Guglielmi

client medications.

staff would

The expense of

be too great

Amego to be reasonably

with her

be left alone with a client

Amego

additional supervisor

be paired

for a

needed

to

who

an

did not have

hiring these

small nonprofit

expected to bear.15

See Vande
___ _____

____________________

14.

In determining whether an accommodation

undue hardship under

include:

the

nature

overall financial

the ADA, the

and

cost of

resources of

would impose an

factors to be
the

considered

accommodation;

the facility; the

the

number of

persons employed at the facility; the effect on expenses

and

resources, or the impact otherwise of such accommodation upon

the

operation

resources

of

of

the

the covered

facility;

the

entity; the

overall

financial

overall size

of the

business of a covered entity; the number, type,

of

and location

its facilities; and the type of operations of the covered

entity including the composition, structure, and functions of

the workforce
administrative,

of such entity;
or fiscal

the geographic

relationship of

question to the covered entity.

15.

The

cost

of

an

42 U.S.C.

additional

Behavior

example, would be approximately $20,000 (base

with benefits).
and

separateness,

the facility

in

12111(10)(B).

Therapist,

for

wages annually

Given that Amego ended the fiscal years 1992

1993 with a deficit, this would require additional funds

which Amego does not have.

-3535

Zande v. Wisconsin Dep't of Admin., 44 F.3d

_____
___________________________

Cir. 1995)(holding that employer

538, 542

(7th

may prove undue hardship by

establishing that the costs of the proposed accommodation are

excessive

in relation

either

to

its

benefits or

to

the

employer's financial health or survival).

Another

possible

option, rearranging

Guglielmi's

assignment to clients so that she was never with a client who

required medication, would

the time

Mansfield

obviously be difficult since,

of Guglielmi's employment,

residence

Guglielmi to

did

that one

not

for an

additional

medication.

client would disrupt

one-staff-member-to-two-clients

need

take

only one client

ratio,16

or

Behavior Therapist.

at

at the

Assigning

Amego's crucial

result in

Both

the

options

would alter the basic

scope of

operations of Amego and go

a reasonable accommodation.

beyond the

See Reigel
___ ______

v. Kaiser
______

Found. Health Plan, 859 F. Supp. 963, 973 (E.D. N.C. 1994).
__________________

Deploying another Behavior Therapist to Guglielmi's

location

and

programming

shift

to

or

changing

ensure that

Guglielmi's

they were

on site,

clients'

near other

staff members, whenever they

needed to take medication would

have

effect on

an equally

disruptive

Amego's clients

and

____________________

16.

Altering

specific
contracts

these

staff/client

provisions that
and

the

are

clients'

ratios

included

would

contravene

in Amego's

individualized

funding

educational or

service plans.

-3636

staff

as

well

requirements.17

1477

as

interfere

with

Amego's

funding

See Ricks v. Xerox Corp., 877 F. Supp. 1468,

___ _____
___________

(D. Kan. 1995)(holding that the ADA does not require an

employer to

hire a

full-time

helper to

employee as a reasonable accommodation).

assist a

disabled

In

sum,

Amego

cannot

make

reasonable

accommodation. To do what the EEOC asks would be to alter the

very

nature

of

the

redefinition exceeds

Behavior Therapist

position.

reasonable accommodation."

"Such

Bradley, 3
_______

F.3d at 925.

"Because Of" and the Conduct/Disability Distinction

___________________________________________________

The EEOC argues that it met its burden on causation

because, it says, the ADA prohibits adverse employment action

that is based on conduct related

extent that

the

to a disability to the same

it prohibits adverse employment

underlying

disability

itself.

It

action based on

says

that

Amego

terminated Guglielmi because of her suicide attempts and that

the

termination was, therefore, "because of" her disability.

Even if Amego terminated

rather

than

for

Guglielmi for misusing

attempting

suicide,

the

medication,

EEOC

says

the

termination decision was still "because of" her disability.

____________________

17.

Amego's

philosophy

opportunities is
into clients'
violated

maximizing

community

access

incorporated into its funding contracts and

individualized

those

artificially

of

agreements

restrict

programs.
if

community

it

were

access

Amego

would

to

diminish

opportunities

either Guglielmi's or another employee's clients.

-3737

have
or
for

To the extent that the EEOC is arguing that conduct

connected to

action

"because

formulation.

is in

a disability

of"

always must be

disability, that

considered to

is

too

broad

be

While one may hypothesize certain conduct which

fact more

closely compelled

by the

disability (e.g.
____

profanity from Tourette's Syndrome sufferers), this case does

not provide the occasion to explore what merit there might be

to

a more refined formulation

of the EEOC's

position.

The

syllogism which the EEOC presents -- Guglielmi was depressed,

therefore Guglielmi attempted suicide, therefore any response

to

the attempted suicide

is "because of"

her disability --

breaks down.

was

Apart from the evidence that staff believed she

a threat to clients based on her at-work behavior alone,

Amego has

been clear, for

purposes of the

summary judgment

motion, that it was the manner of the suicide attempts -- use

of

medications, including

prescription medications

-- that

motivated its decision.18

There

is

simply

no

evidence

depression

compelled her

to

opposed to

other methods

of attempting suicide.

EEOC's evidence

overdose

on

that

medications,

was that individuals suffering

and depression sometimes

____________________

have suicidal

Guglielmi's

At

as

best,

from bulimia

thoughts or

attempt

18.

Amego,

Guglielmi

through
could

responsibilities

its Safety

not

safely

of the

Committee,
perform

Team

any

determined that
of

Leader position

the

eleven

but did

not

raise this argument on summary judgment.

-3838

suicide.

court

In

held

Taub v. Frank, 957 F.2d 8 (1st Cir. 1992), this

____
_____

that

Rehabilitation Act

plaintiff

that he was

could

not

show

under

discharged by reason

the

of his

handicap,

"simply

drug addiction,

too

attenuated

addiction-related

Id.
___

at

11.

because his heroin

when

possession

Similarly,

Rehabilitation

extended

Act case,

of

to

encompass

heroin for

in

this

addiction was

Leary
_____

v.

distribution."

Dalton,
______

court found

for

driving

under

the

plaintiff's disability of alcoholism

for his termination.

The

disability

Accordingly,

facts

and

of

was no

this

resulting from

influence,

the

was not the sole reason

error

that the EEOC also

showing

job

action

case

connection

determination

the

the

58 F.3d 748, 752 (1st Cir. 1995).

conduct

there

another

that where

discharge from employment was for absenteeism

incarceration

an

was

in

do

not

the

present

EEOC

suggests.

the district

has not met

"because

of"

the

court's

its burden of

Guglielmi's

disability.

The entry

of summary judgment for

affirmed.
________

-3939

Amego, Inc., is