Gillen v. Fallon Ambulance Service, Inc.

• Decision Date: 19 March 2002
• Docket Number: No. 01-1642.,01-1642.
• Citation: 283 F.3d 11
• Parties: Kelly A. GILLEN, Plaintiff, Appellant, v. FALLON AMBULANCE SERVICE, INC., Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

283 F.3d 11

Kelly A. GILLEN, Plaintiff, Appellant, v. FALLON AMBULANCE SERVICE, INC., Defendant, Appellee.

No. 01-1642.

United States Court of Appeals, First Circuit.

Heard November 7, 2001.

Decided March 19, 2002.

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William J. McLeod, with whom McLeod & Associates was on brief, for appellant.

Wilfred J. Benoit, Jr., with whom Wilfred J. Benoit, Jr., P.C., Heidi Goldstein Shepherd, and Goodwin Procter LLP were on brief, for appellee.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and SARIS,^* District Judge.

SELYA, Circuit Judge.

Plaintiff-appellant Kelly A. Gillen, a genetic amputee with only one completely functioning arm, sued defendant-appellee Fallon Ambulance Service, Inc. (FAS) for refusing to hire her as an emergency medical technician (EMT). The court below granted summary judgment, reasoning that the appellant did not have a disability within the meaning of the relevant statutes, and that, in all events, she could not have performed the essential functions of the job. Gillen's appeal raises nuanced questions under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. After pondering these questions, we vacate the judgment and remand for further proceedings.

I. BACKGROUND

Consistent with the conventional summary judgment praxis, we recount the facts in the light most hospitable to the appellant's theory of the case, consistent with record support. C.K. Smith & Co. v. Motiva Enters., 269 F.3d 70, 72 (1st Cir. 2001).

The appellant was born with a deformed left arm — the limb ends a few inches below the elbow — but her courage and perseverance are not open to question. Although she eschews the use of a prosthesis, she performed impeccably in a myriad of jobs (e.g., sales clerk in a department store, laboratory assistant) during her high school and college years. Aspiring to become a physician, she decided, as an interim step after obtaining a bachelor's degree, to seek employment as an EMT.

This was easier said than done. The duties of an EMT involve substantial physical prowess. An EMT usually works as part of a two-person team. The team typically responds to a call for assistance, assesses the patient's condition on the scene, administers basic medical care, and then transports the patient to an appropriate health care facility. The transport is customarily effected by placing the patient on a stretcher or stair chair, which then must be lifted and carried to an ambulance, sometimes down several flights of stairs. The EMTs then load the patient into the ambulance, drive to the health care facility, and unload. Given the rigors of this work, it is unsurprising that the Massachusetts Department of Public Health (MDPH) requires that an EMT "[b]e free of any physical or mental impairment or disease which could reasonably be expected to impair [her abilities], or which could reasonably be expected to jeopardize the health and safety of the patient." Mass. Regs.Code tit. 105, § 170.910(A)(3).

Once she set her sights on obtaining employment as an EMT, the appellant enrolled in a preparatory course. After logging 110 hours of course work (including both academic and clinical components), she took and passed the state certification examination — an examination composed of both written and practical portions. Id. § 170.910(A)(5). She received her certificate in the fall of 1997.

In search of work, the appellant contacted FAS on December 7, 1997. She filled out an application form that included questions about her physical condition and required her to authorize the release of medical and workers' compensation records.¹ Tim Royer, an FAS hierarch, interviewed her a few weeks later. She filled out more forms.

Paul Fallon, FAS's vice-president of operations, conducted a second interview on January 2, 1998. He queried the appellant about the origins of her deformity, expressed skepticism about her ability to perform certain physical tasks (especially lifting), and voiced concern about possible liability should the appellant prove unable to hoist patients properly. Despite these reservations, Fallon offered her employment as an EMT, conditional upon passing a physical examination administered by the Milton Hospital.²

Milton Hospital has had a longstanding relationship with FAS, serving as the principal provider of employment-related health care to FAS's work force. As part of this relationship, the hospital, through its occupational health clinic, was in the process of helping FAS establish a compendium of the physical attributes required for doing EMT work. This list, intended for use as a baseline by physicians who examined candidates for vacant EMT positions, included the following "essential job functions:"

• Lifting with two hands individually up to 70 pounds for a total height of 6 inches from knuckle height occasionally. Lifting with one hand individually up to 20 pounds from a height of 0 inches to 48 inches frequently.

• With a partner lifting a stretcher with a client on it weighing from 75 pounds to 300 pounds from a height of 6 inches to 40 inches occasionally.

In another part of this same document, the catalogue of "minimal job requirements" included two-handed lifting of 70 pounds from 0-4 times a day,³ a one-handed lift of 20 pounds 0-40 times a day, and lifting (with a partner) 75-300 pounds 0-40 times a day.

On January 8, 1998, the appellant repaired to Milton Hospital for her medical examination. The examiner, Dr. Asif Qazi, did not have the list of essential job functions with him at the time, but he knew that the EMT position involved heavy lifting and lifting in difficult positions. He worried that the appellant might not be able to perform the lifting functions effectively. He therefore decided that a further review of her strength and ability to lift were in order before he could give her a clean bill of health. In Dr. Qazi's view, the results of this later testing would not only document the appellant's raw strength but also shed light upon her lifting mechanics (e.g., her ability to keep a patient properly balanced aboard a stretcher).⁴

Dr. Qazi informed the appellant of his conclusion, and she immediately called an FAS official, Christine Hamilton, to make arrangements for the strength test. Later that day, however, Dr. Qazi discussed the situation with his immediate superior, Dr. Thomas Winters. Dr. Winters, who had vast expertise in both emergency medicine and occupational health matters, served as the medical director of Milton Hospital's occupational health clinic. After Dr. Qazi described the appellant as a genetic amputee whose left arm was missing below the elbow, Dr. Winters replied that, in his opinion, she could not perform the essential functions of the EMT position (and, thus, could not pass the preemployment examination).

Dr. Winters premised his opinion in part on a fear that the appellant could not serve as an EMT without jeopardizing patients and coworkers. He explained that, based on his experience, one of the most important duties of an EMT was to stabilize a patient after an accident, and, given the appellant's impairment, she would be unable (even with a partner) effectively to perform the difficult balancing required when transporting patients from tight spaces or difficult-to-reach sites. Moreover, Dr. Winters did not believe that the appellant's grasping technique, as described to him by Dr. Qazi, could work in lifting a stretcher (with a partner) when the patient weighed over 150 pounds. Given these problems, Dr. Winters considered further testing of the appellant's strength or lifting mechanics unnecessary and, with Dr. Qazi's acquiescence, determined that the appellant had failed the preemployment examination.

Dr. Winters called Fallon and informed him of this determination. He also compiled a report. Like Dr. Qazi, see supra note 4, he placed a checkmark in the box next to "[n]o medical contraindication to performing this job, with the following recommended accommodations or job training," but underneath he wrote, "can perform all essential job functions of EMT except: — 2 handed lift independent or with partner."

On January 14, 1998, Fallon told the appellant that Dr. Winters had reviewed her file and refused to pass her because she could not perform two-handed lifting. The appellant expressed dismay that a doctor who had never seen her could determine that she was unable to do the lifting necessary for the EMT position, and soon filed a charge of disability discrimination with the Massachusetts Commission Against Discrimination (MCAD). FAS answered the MCAD complaint and identified the appellant's inability to perform two-handed lifts as "the sole reason" why she was not hired. FAS further alleged that it had relied on the advice of Milton Hospital in determining that the appellant was unable to perform an essential job function (and, thus, in rejecting the appellant's application).

On April 13, 1998, FAS's attorney wrote to the appellant's counsel stating that FAS still would be willing to hire the appellant if she could demonstrate how, with or without reasonable accommodation, she could perform the essential job function of two-handed lifting. In that letter, FAS made clear that it regarded the appellant as "otherwise qualified for the job." The appellant did not respond to this offer.

In the meantime, the appellant applied for an EMT position with American Medical Response (AMR). AMR agreed to hire her on the condition that she pass a strength test. One portion of this test required that the appellant lift ninety pounds to knuckle height with her one functioning arm. At first, the appellant could not satisfy this requirement. She began a weightlifting regimen and, a few weeks later, passed the strength test. AMR hired her as a part-time EMT in April 1998. Three months later, the appellant accepted...