110 F.3d 135 (1st Cir. 1997), 96-1837, E.E.O.C. v. Amego, Inc.

Docket Nº:96-1837.
Citation:110 F.3d 135
Party Name:EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, Appellant, v. AMEGO, INC., Defendant, Appellee.
Case Date:April 07, 1997
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 135

110 F.3d 135 (1st Cir. 1997)

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, Appellant,

v.

AMEGO, INC., Defendant, Appellee.

No. 96-1837.

United States Court of Appeals, First Circuit

April 7, 1997

Heard Dec. 5, 1996.

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[Copyrighted Material Omitted]

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Karen M. Moran, Attorney, Equal Employment Opportunity Commission, with whom C. Gregory Stewart, General Counsel, Gwendolyn Young Reams, Associate General Counsel, and Vincent J. Blackwood, Assistant General Counsel, were on brief, for appellant.

Mary Jo Hollender, Boston, MA, with whom Hollender & Carey, L.L.P., was on brief, for appellee.

Before CYR and LYNCH, Circuit Judges, and STEVEN J. McAULIFFE, [*] District Judge.

LYNCH, Circuit Judge.

Amego, Inc., is a small not-for-profit organization which cares for severely disabled people suffering from autism, retardation, and behavioral disorders. It serves twenty-five to thirty clients, including six in a residential program in Mansfield, Massachusetts, where Ann Marie Guglielmi was employed as a Team Leader. The Team Leader position required her to be responsible for the care of these disabled clients, including the responsibility of administering vital medications to them. After an unresolved investigation of improprieties in the administering of medication to patients at a related facility, Amego learned that other staff 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 weeks by overdosing on medications. This, Amego decided, meant that Guglielmi could not safely dispense medications, an essential job function, and that there was no other job reasonably available to her. Her employment was thus terminated.

The Equal Employment Opportunity Commission ("EEOC") sued Amego on behalf of Guglielmi under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. The district court entered summary judgment against the EEOC, holding that the EEOC had not made out a prima facie case that Guglielmi was an otherwise "qualified" individual, that an accommodation could be reasonably made, and that there was discrimination "because of" her disability.

The EEOC appeals and argues that the question of whether an employee poses a significant risk to other individuals in the workplace is an affirmative defense on which the employer bears the burden of proof and is thus not part of the plaintiff's burden that the employee is qualified. Those issues of qualification and risk, the EEOC says, are matters for the jury to resolve at trial and may not be resolved on summary judgment. The EEOC also invites this court to hold that "adverse employment action taken because of conduct related to a disability 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 funding and is licensed by two state agencies. A condition of licensing is that Amego provide

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conditions that ensure the safety and well-being of its clients. Amego maintains a very low client-to-staff ratio, usually one staff member to two clients. One particularly aggressive client required supervision by three staff members, eighteen hours a day.

Amego has a policy of not rejecting those who seek its help. Most of its clients engage in aggressive and self-injuring behavior, including self-mutilation. Many have been rejected by, or discharged from, other 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 with its philosophy of attempted integration, Amego provides its clients with access to community activities on a regular basis. Residential clients are transported daily to the Day Treatment Program, where they frequently are taken by direct care staff to stores, bowling alleys, banks, and the like.

In September 1990, Amego hired Guglielmi as a Behavior Therapist. She was then about 21 years old and did not represent herself to have any disability. In January 1991, she was diagnosed 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, but it only partially alleviated the depression. She stopped taking the drug in April. In the fall of 1991, she started living with her boyfriend, David Andrade, who worked at a different Amego residence. That relationship was fraught with problems. Andrade used cocaine; Guglielmi, however, says she did not confirm her suspicions of that until late June 1992. In early 1992, she started seeing a social worker, Margaret Posever, for bimonthly therapy sessions.

Earlier, in July 1991, Guglielmi was promoted to the position of Team Leader at the Mansfield residence. The essential functions of that position included: supervising the day-to-day implementation of 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 services, and professional practice; assessing staff performance, providing additional training, support, and counseling as appropriate; ensuring that Amego's policies and procedures on clients' rights were implemented and documented; responding appropriately in crisis situations; and administering and documenting the use of prescribed medications.

On March 4, 1992, Guglielmi received a performance evaluation which said she was an "exceptional" Team Leader. The evaluation was based on her performance through January 1992. In the spring of 1992, Guglielmi applied for promotion to the position of Program Coordinator for the Mansfield residence. The promotion instead went to Kristen Stone. Stone assumed her new responsibilities on May 4, 1992.

That same day, Guglielmi deliberately took an overdose of nonprescription sleeping pills which she 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 transferred to a psychiatric hospital and released later that evening. She told health care workers that she attempted suicide because she was upset by problems in her relationship with her boyfriend, her failure to receive the promotion, and other work-related stress. She was readmitted to the psychiatric hospital on May 6, 1992, and stayed there until May 12 because of concerns about her safety. On the day of her readmission to the hospital--two days after her suicide attempt--Guglielmi was not able to "contract for safety" with her therapist Posever. Guglielmi told Posever that even if she were to so contract, her mood was in such flux that she could not be sure she would not hurt herself anyway. 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 only that she had been hospitalized for bulimia and depression. She did not say that she had attempted suicide. She asked her supervisor to modify her work schedule so that she could attend therapy twice or thrice weekly. Her supervisor agreed to this accommodation. However,

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Guglielmi stopped going to the therapy sessions after a few weeks.

On May 21, 1992, Guglielmi began seeing Dr. Kenneth Levin for psychopharmacological treatment. He diagnosed her as suffering from bulimia and major depression, prescribed Prozac and trazodone, and saw her to monitor her use of medication. Prozac was one of the medications regularly administered to Amego's clients. On June 4, 1992, she told Dr. Levin that she had experienced periodic feelings of increased depression, including a period when she contemplated overdosing. 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 her prescription medications, Prozac and trazadone, as well as aspirin. After taking the overdose, she called the Plainville police, who took her to the hospital. She was released on June 15, 1992. She told her health care providers that she was not really depressed when she overdosed but wanted to provoke a reaction from her boyfriend. When Guglielmi returned to work on June 17, she again did not tell her employer that she had attempted suicide.

On the day Guglielmi returned to work, the Executive Director of Amego, Caryn Driscoll, and the Director of Administrative Services, Karen Seal, met with David Andrade about his job performance problems. During this meeting, Andrade mentioned rumors that clients were being drugged at the Fales Road residence. He worked at that location 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 at an accelerated rate at the Fales Road residence. Some cocaine users take Klonopin as an antidote, to calm them down from the effects of cocaine.

Amego investigated and found that four of the clients at the Fales Road residence (two of whom should not have had Klonopin at all) had blood levels of Klonopin which were too high. Amego asked any employees who had pertinent information to step forward. Guglielmi did so and was interviewed on June 26 by Driscoll, Amego's Human Rights Officer, and a private investigator. During the interview, Guglielmi focused on her relationship with Andrade, who she feared might be targeted in the investigation. She said that she was suffering from bulimia...

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