Schultz v. Young Men's Christian Ass'n of U.S.

• Decision Date: 04 November 1997
• Docket Number: No. 97-1524,97-1524
• Citation: 139 F.3d 286
• Parties: 14 IER Cases 1254, 8 A.D. Cases 1254, 12 NDLR P 124 David SCHULTZ, Plaintiff, Appellant, v. YOUNG MEN'S CHRISTIAN ASSOCIATION OF THE UNITED STATES of America, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 286

139 F.3d 286

14 IER Cases 1254, 8 A.D. Cases 1254,

12 NDLR P 124

David SCHULTZ, Plaintiff, Appellant, v. YOUNG MEN'S CHRISTIAN ASSOCIATION OF THE UNITED STATES of America, Defendant, Appellee.

No. 97-1524.

United States Court of Appeals, First Circuit.

Heard Nov. 4, 1997

Decided March 27, 1998.

Alan J. Rich with whom Farber & Rich LLP, New York City, Sarah S. Geer, Marc P. Charmatz, National Association of the Deaf Law Center, Silver Spring, MD, Paul F. Kelly and Segal, Roitman & Coleman, Boston, MA, were on brief, for appellant.

Thomas C. Federico with whom Lee Stephen MacPhee, Edward W. Murphy and Morrison, Mahoney & Miller, Boston, MA, were on brief, for appellee.

Before BOUDIN, Circuit Judge, COFFIN, Senior Circuit Judge, and DOWD, ^* Senior District Judge.

BOUDIN, Circuit Judge.

David Schultz brought suit in the district court against the Young Men's Christian Association of the United States of America ("the national YMCA") charging that it had discriminated against him because of his hearing disability. The district court granted summary judgment in favor of the national YMCA and Schultz now appeals. We affirm.

The background events are largely undisputed. Schultz is deaf unless he makes use of a hearing aid. He is also an accomplished swimmer and swimming instructor with many years' experience as a lifeguard; he obtained lifeguard certification from the American Red Cross in 1979. In 1993, Schultz was hired as the aquatics director for the Hockomock YMCA in North Attleboro, Massachusetts, an organization that is independent of the national YMCA.

In 1994, Schultz decided to seek lifeguard certification from the national YMCA. Such certification was neither required nor suggested by the Hockomock YMCA. Schultz took the necessary course from one of his own subordinates, Carol Wilson, who happened to have lifeguard certification from the national YMCA. When Schultz completed the course, Wilson concluded that he met all of the national YMCA criteria for certification except for a hearing requirement.

Among other criteria, the national YMCA requires for its certification that a lifeguard be able to hear noises and distress signals. Wilson asked Schultz for an audiologist's report, and Schultz furnished one saying that he would have no difficulty hearing sounds of normal intensity with his hearing aid in place. Assuming that Schultz would wear his hearing aid while lifeguarding, Wilson recommended that the national YMCA certify him, and it did so in early 1995.

Soon thereafter, Wilson noticed that Schultz did not always wear his hearing aid while lifeguarding and observed that Schultz was unable to hear noises without the hearing aid. Wilson was further concerned, she said, because she saw Schultz doing pool maintenance tasks while lifeguarding and turning his back on swimmers in the pool, including children. In mid-1995, Wilson asked the national YMCA to remove her name from Schultz's certification record because of the hearing requirement; the organization did so in July 1995, thereby revoking Schultz's certification.

Several weeks before this revocation, Schultz resigned as aquatics director and accepted a lower-paid position at the Hockomock YMCA. This change was due to evaluations of Schultz's job performance and was unrelated to his loss of national YMCA certification. Schultz later resigned from his new job but, so far as appears, Schultz continued to hold Red Cross lifeguard certification.

In December 1995, Schultz sued both the national YMCA and the Hockomock YMCA, setting forth a number of federal and state claims and seeking $20 million in damages as well as injunctive relief. However, Schultz confines his appeal solely to his claim for damages for emotional distress against the national YMCA under section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Its central provision reads, in pertinent part, as follows:

No otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....

After extensive discovery, the national YMCA moved for summary judgment, primarily arguing that the ability to hear distress signals was a reasonable requirement for lifeguard certification. Schultz countered with evidence purporting to show that a deaf lifeguard was capable of performing lifeguard duties. At a pretrial conference, the court granted summary judgment in favor of the national YMCA, but not upon the main ground urged in the defendant's summary judgment motion.

Instead, the district court assumed--correctly, so far as we know--that the national YMCA did not cause Schultz to lose his job or otherwise cause him economic damages. Then, focusing upon the claim of emotional distress, the court said that it knew of no "precedent that supports the kind of emotional damages that is being asserted in relation to the cause of action in this setting." Alternatively, the court expressed doubt as to whether Schultz's own testimony as to emotional distress was an adequate basis for his damage claim.

Schultz has now appealed to this court, focusing upon the Rehabilitation Act and his claim for damages for emotional distress. By contrast, the national YMCA, while defending the district court's grounds of decision, also urges--as it is entitled to do, Doe v. Anrig, 728 F.2d 30, 32 (1st Cir.1984)--that the judgment is supported by Schultz's lack of qualification. Our review on the grant of the summary judgment is de novo. Preferred Mut. Ins. Co. v. Travelers Cos., 127 F.3d 136, 137 (1st Cir.1997).

Section 504 of the Rehabilitation Act broadly prohibits discrimination on grounds of disability under "any program or activity receiving Federal financial assistance." The national YMCA concedes that its lifeguard certification program falls within this quoted language. Deafness makes Schultz an "individual with a disability" under the statute. 45 C.F.R. § 84.3(j). And the defendant has chosen not to contest the proposition that Schultz's certification was revoked "solely by reason of ... his disability."

Nevertheless, the "otherwise qualified" language of section 504 has been read, ungrammatically but persuasively, to mean that Schultz could not show a violation of the section if hearing was an essential function of lifeguarding and thus an appropriate requirement for lifeguard certification. School Bd. of Nassau County v. Arline, 480 U.S. 273, 282 n. 7, 107 S.Ct. 1123, 1128 n. 7, 94 L.Ed.2d 307 (1987). Doubtless it is widely supposed that the ability to hear a distress call is a qualification for lifeguarding: one has in mind the dramatic picture of the child in a lake waving her arms and calling "help." Whether the supposition is correct is a different question.

The disability statutes were meant to counter mistaken assumptions, no matter how dramatic or widespread. Arline, 480 U.S. at 279, 107 S.Ct. at 1126-27. And Schultz offered in opposition to summary judgment the detailed reports of two arguably expert witnesses to support his position that the ability to hear contributes little, if anything, to the performance of lifeguarding functions. It was probably this evidence, more potent than one might expect, that steered the district court to a different ground of decision.

One expert report was from Anita Marchitelli, who managed the aquatics program and the training of lifeguards at Gallaudet University. She had certified well over 400 deaf lifeguards for the Red Cross, which has no hearing requirement, and gave several pages of detailed explanations as to why deafness was not a handicap for a lifeguard. "In all of my 22 years in working with deaf individuals," she added, "I have never even heard [from extensive sources] of any incident or accident causing injury involving a deaf lifeguard."

The second opinion, provided by Frank Pia, a consultant on drowning accident causation, asserted that drowning victims are almost never in a position to call for help. Pia concluded: "I know of no scientific research, any documentation, anecdotal information or expert documentation that tends to show lifeguards who are deaf or who have a hearing loss are any higher risk than hearing people as pool lifeguards." Although somewhat more guarded than Marchitelli--Pia gave some attention to possible "reasonable accommodations" for the deaf lifeguard--Pia's report generally supported Schultz's position.

This evidence is only one side's version of the matter, and its experts have not been cross-examined. But in the face of these reports we are not certain that the safety issue could be resolved on summary judgment, at least on this record. Schultz also claimed that the national YMCA had made no serious effort to test or verify whether its "common sense" assumption was true. Were this a conventional employment discrimination case, in which Schultz had been denied a lifeguard job because of deafness, he might have enough to reach a jury.

Of course, in granting certifications the national YMCA is not hiring employees, nor does it appear that its certification is either a legal or a practical condition for obtaining work as a lifeguard. The national YMCA has simply announced criteria that it thinks appropriate for a lifeguard and offered certification to those who meet its qualifications. One might even think that there are free-speech interests at stake or that, at the very least, there should be...