Cook v. State of RI, 1st Cir. (1993)
Cook v. State of RI, 1st Cir. (1993)
Cook v. State of RI, 1st Cir. (1993)
on brief,
________________
________________
for appellee.
Mary L. Clark, with whom James R. Neeley, Jr., Deputy
_______________
______________________
General Counsel, Gwendolyn
Young Reams, Associate
General
________________________
Counsel, and Vincent J. Blackwood, Assistant General Counsel,
_____________________
were on brief for U.S. Equal Employment Opportunity Commission,
amicus curiae.
_________________________
November 22, 1993
_________________________
__________
*Of the District of New Hampshire, sitting by designation.
SELYA,
SELYA,
disability" case
for,
and
the
Circuit Judge.
Circuit Judge.
_____________
presents a
This pathbreaking
textbook illustration
operation of,
the
prohibition
"perceived
of the
need
against handicap
29 U.S.C.
Concluding, as
we do,
by the
post-trial motions
judgment
I.
I.
BACKGROUND
BACKGROUND
At
the
times
material
hereto,
defendant-appellant
of the Rhode
Center
as
a residential
facility
for
operated the
retarded persons.
again
from
voluntarily,
defendant
1981
to
leaving
concedes
1978 to 1980,
1986.
she
behind
that
Both
times
spotless
Cook's
past
work
departed
record.
performance
The
met
its
legitimate expectations.
In 1988,
position,
During the
concluded
she
when plaintiff
stood
5'2"
reapplied
tall and
plaintiff
was
weighed
for the
over
identical
320 pounds.
a nurse employed
morbidly
obese1
but
by MHRH
found
no
____________________
limitations
that
impinged
upon
her ability
to
do
the
job.
Notwithstanding that
MHRH
balked.
It claimed
her ability to
physical examination,
hierarchs
increase
the
speculated
likelihood
of
would
promote
workers'
absenteeism
compensation
and
claims).
a vacant IA-MR
position.
Cook did not go quietly into this dark night.
section
504, she
sued MHRH
in federal
moved to
dismiss the
averring
that morbid
obesity can
never
district court.2
R. Civ.
(D.R.I. 1992).
In due
At
handicap
F. Supp. 1569
matter of law.
MHRH
P. 12(b)(6),
constitute a
Invoking
a jury.
Civ. P.
____________________
(15th ed. 1987). While Cook had been corpulent during her prior
tours of duty, she had not then attained a state of morbid
obesity.
50(a),
and submitted
which appellant
the case
interposed no
general
special interrogatories
objections).
awarded
The district
as a
The
(to
jury answered
verdict,
compensatory damages.
entered
on
matter of
her
court
$100,000
denied
in
appellant's
a new
trial,
the plaintiff.
MHRH lost
little time
in filing
a notice
of
appeal.
II.
II.
STANDARD OF REVIEW
STANDARD OF REVIEW
This appeal contests
formulated
by
MHRH, the
sufficient evidence
Thus,
appellate
appeal
to permit
review
liability, not
is
turns
a verdict
plenary.
on
remediation.
whether
there
in plaintiff's
See
___
As
was
favor.
Rolon-Alvarado
______________
v.
the same
34 (1st
standard that
governed
adjudication
of
the
Rule
50
motion
below:
we
in
the
light
most
hospitable
to
the
nonmovant,"
Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir. 1987), refraining
_________
_____
entirely from "differential
at 76.
In the process,
of
____________________
3The
We can overturn a
only if
the evidence, so
but reach an
Rolon-Alvarado,
______________
F.3d
outcome at
at
reasonable minds
verdict.
Partnership v. Western Sur. Co., 936 F.2d 1364, 1383-84 (1st Cir.
___________
________________
1991).
In
trial
court's denial
somewhat different
of such
glass.
ruling
discussion
That ends
in
of, or
See
___
motion is
respect,
accompanied by some
We are
F.2d at
presents
no
firm adherents to
to on appeal in a
200-01.
reference to the
it
analysis addressed
examined through
Wagenmann, 829
_________
makes a passing
this
the matter.
been abandoned."
trial
reasoned
trial issue.
the principle
to have
F.2d 1, 17 (1st
ANALYSIS
ANALYSIS
In handicap discrimination
federal
law,
the
claimant bears
burden
1991).
the
proving each
of
684, 686
of the
Rehabilitation
Act,
which
provides in
relevant
part:
. . . shall, solely
"[n]o
by reason of
794(a).
at the time,
a failure-to-hire
applied
her disability.
she
Center.
We turn,
then, to the
remaining links
that
the first three of which deal directly with the existence vel non
___ ___
of a covered impairment (actual or perceived).
A
A
her as physically
action
under
section
disabled,
impaired.
the
but
also
Rehabilitation Act,
504 embraces
not only
those
those
persons
for
the
prophylaxis of
persons who
who
bear
a cause of
the
are in
brunt
fact
of
discrimination
disabled.
for
because
prospective
See 29 U.S.C.
___
employers
view
706(b) (defining a
them
as
disabled person,
Up to this
cases
have
litigated
and,
consequently,
of perceived disabilities
task
is
greatly simplified
because
regulations
promulgated by the
federal
three ways
of a perceived
disability.4
The trial
court charged
the jury that it could consider plaintiff's claim under the first
and third methods,
not cross-appealed
to one
side
cases
which, unlike
this
one, arguably
come
within the
____________________
45 C.F.R.
84.3(j)(2)(iv) (1992). The word "recipient" is a
shorthand reference to a recipient of federal funding, and, in a
failure-to-hire case, signifies a prospective employer whose
"program or activity receiv[es] Federal financial assistance."
29 U.S.C.
794(a).
7
purview of 45 C.F.R.
It
disability
is
model
actually has a
84.3(j)(2)(iv)(B).
noteworthy
can be
satisfied
section
whether
504's
or
84.3(j)(2)(iv).
It
define
"physical or
the
that
term
is also
noteworthy
mental
that
perceived
not
See 45
___
person
C.F.R.
the regulations
impairment"
broadly; it
includes, inter
_____
significantly
alia, any
____
physiological
affecting
musculoskeletal,
major
respiratory,
84.3(j)(2)(i)(A).
The
term
or
A, Subpart
A(3), at 377
bodily
condition
system,
e.g.,
____
cardiovascular.
See
___
encompasses
disorders
also
disorder or
id.
___
(1992).
And
and
Id.,
___
specific
diseases
and
difficulty of ensuring
conditions
. .
because
of
the
such list."
Id.
___
This
analysis.
Cook had
regulatory
framework
sets
the
stage
for
our
while she
had a
that
(2)
prescribed
she
did
physical
physical or
ability to
84.3(j)(2)(iv)(A), or,
not suffer
or mental
at
all
impairment,
from
id.
___
MHRH treated
____________________
her
impairment (whether
limiting
one or
more
84.3(j)(2)(iv)(A),
actual or
of
perceived)
her major
(C).
Although
life
the
as substantially
activities.
jury did
not
Id.
___
return a
was merely
district court,
regarded by MHRH
as having
in the
one, the
alternative;
one of these
theories. In
We explain briefly.
On
plaintiff
suffered
that
had a physical
dysfunction of
obesity
is a
both the
appetite-suppressing
within
MHRH
physiological
metabolic system
signal system,
the
cardiovascular systems.
found
she admittedly
morbid
effects
and the
neurological
causing adverse
respiratory,
and
involving a
capable of
musculoskeletal,
On the
disorder
treated by
case of an
of
workers'
heart
disease, thereby
compensation
increasing
claims
show
the
heightened
likelihood of
conclusively
that
MHRH
____________________
treated
plaintiff's obesity
as
if
it
actually
affected
her
Neither foray
succeeds.
1.
1.
conditions are
Mutability.
Mutability.
__________
not the
sort of impairments
that morbid
that can
find safe
obesity is a
that "mutable"
mutable condition
and that,
meaning of the federal law because she can simply lose weight and
rid herself of any concomitant disability.
insubstantial as a pitchman's promise.
This suggestion is as
We
think it is
important to recognize
variations
urging,
impairment unless
person
that a
it .
or disorder
constitutes an
is
legal theme.
"condition
. .
affected
applicable
appellant's
that the
on the
that appellant
powerless to
The
jury, at
is
not an
immutable condition
control."7
Thus,
____________________
appellant's mutability
facts.
in the
morbidly obese,
weight gain
weight loss.
Given
impairment itself
permanent.
1991)
Cf. Gilbert
___ _______
(finding
that
dysfunctional
v. Frank,
_____
kidney
949 F.2d
disease
Reynolds v.
________
Brock,
_____
815
metabolism
637, 641
controllable
is
(2d Cir.
by
weekly
F.2d 571,
573
(9th Cir.
1987)
(holding
handicap
under
504).
mutability question
Hence,
the jury's
rested on a sufficiently
resolution of
the
sturdy evidentiary
platform.
There
appellant's
is,
paean
moreover,
to
another
mutability.
normally
a prerequisite to finding a
district
court's
charge
Even
dissonant
if
chord
in
immutability were
suggested, the
logic
of
a perceived
____________________
So
would
nonetheless
the
responds to a
a continuing
So it
an "impairment of
doctrine's
defeat
is here:
nature,"
morbid obesity
Evans v.
_____
City of
_______
Dallas, 861 F.2d 846, 853 (5th Cir. 1988) (citation omitted), and
______
that he rejected her application on that basis.8
2.
2.
no
Voluntariness.
Voluntariness.
_____________
ground.
Appellant's
MHRH asseverates
that, because
morbid
obesity is
conduct, it cannot
asseveration rests on
Rehabilitation
protection is
Act
contains
linked to
whether an individual
no language
how an
suggesting
individual became
that
The
its
impaired, or
impairment.
On
alcoholism,
AIDS,
diabetes,
cancer
resulting
conduct, such as
from
cigarette
smoking,
____________________
8Indeed,
Dr.
Blackburn, appellant's
expert
witness,
testified that it is dangerous for a dieter to lose more than 20%
of her total body weight each year. Applying this formula to Dr.
O'Brien's acknowledgment that he would have rehired Cook only
when she reduced her weight to 190 pounds, the jury could have
concluded that appellant treated plaintiff as if her obesity
would have disqualified her from working for over two years.
12
and
the like.
See,
___
e.g., Severino
____ ________
F.2d
1179, 1182
v.
(11th
Cir. 1991)
(AIDS);
Teahan v. Metro-North Commuter R. Co., 951 F.2d 511, 517 (2d Cir.
______
___________________________
Catto, 778
_____
F.
Supp. 570,
A,
Subpart
577
(D.D.C. 1991)
(alcoholism),
at
377
(cancer;
C.F.R.
heart
84,
disease).
The
premise fares
instructions
(to which
no better
as
a matter
appellant
did not
of
object)
specifically restricted
the
person
affected
disabilities to
is
powerless
to
those conditions
control."9
Given
were
beyond
"that
the
roots
concluded that
plaintiff's
control
and
rendered
her
disabilities requires us
to explore whether
the jury
activities.
See
___
45 C.F.R.
84.3(j)(2)(iv).
We bifurcate this
reverse order.
1.
1.
Major Life
Activities.
Major Life
Activities.
________________________
implementing
section
504
define
The
"major
life
regulations
activities"
84.3(j)(2)(ii).
interfered
activities,
kneeling,
working
could
with
as an
have
an
IA-MR.
her
found
extent
On
that
See
___
including walking,
to such
to
to
undertake
lifting, bending,
that she
would
viewed
physical
stooping, and
be incapable
of
plaintiff's
suspected
See, e.g.,
___ ____
677 F.
Supp. 357,
abilities to walk,
360-61
1988) (table).
2.
2.
Appellant
to refrain from
and, absent a
contemporaneous objection, a
the key
trial court
elaboration.
See
___
14
902
fell
its
finding
substantially
believed
squarely
employment
options
positions
such
hospital aide,
as
and
that
impaired.
plaintiff's
to the
his
limitations
in
the
jury
appellant
By
own
health
health
and
that
regarded
admission,
Dr.
as
O'Brien
broad
range of
care
industry,
including
aide,
nursing
home aide,
care aide.
Detached
capabilities
of
the evidence
plaintiff
foreclosed a
community living
home
demonstrated that
jurors
assessment of
appellant
regarded
urges
that,
in
order
to
draw
such
In effect, appellant's
notion
that
meeting
the
statutory
test
one
reduces to
requires, as
____________________
preliminary
myriad
of
reasons.
matter,
jobs.
First,
that
We
cannot
such a
of section
perceived
an individual
504, a
accept
that notion
requirement is
regulations.
plaintiff
unsuccessfully
for
contrary to
seek a
several
the plain
can make
out a
cognizable
as if
she had
life
activity.
an impairment that
See
___
45
C.F.R.
substantially limits
84.3(j)(2)(iv)(C).
a major
The
Rehabilitation
Act
simply
does not
condition
such
claims on
suit can be
hire
all turquoise-eyed
that
people
lifting
with
large
applicants
such coloring
them for
he believes
universally
incapable of
are
that
too,
conditioning
"substantially
limits" test
tantamount to
obviously
refused
futile acts
to espouse.
Indus., Inc.,
____________
851 F.2d
other warehousemen
who refuses to
solely because
crates, notwithstanding
By way of illustration,
a
See,
___
on
multiple
The
Rehabilitation
84.1.
fulfillment
of
rejections
And placing
we
consistently
16
Cir. 1988)
be
performance of
would
the
have
v. Compo
_____
(stating that
"[t]he law
should not
perform
futile acts
Gilbert
_______
v.
be construed idly
or to
engage in
City of Cambridge,
___________________
(discussing
"futility
to require
parties to
empty rituals);
932 F.2d
exception"
51,
to
60
see also
___ ____
(1st
permit
Cir.)
application
It also
follows that an
be determined
in
If the
the context of
that the
disqualifier
of a
substantial.
rationale proffered
a single refusal to
employer treats
a particular
her
by an
hire adequately
condition
as a
more concrete
not be necessary.
terms, denying
an applicant
Put
even a
perception
limitations
that
that
the
applicant
would keep
her
suffers
from
from qualifying
physical
for
a broad
condition
major life
by
appellant
working.
substantially limited
viz.,
____
contrary.
qualify
activity,
precedents cited
In each of them
for a
constitute a
job
possessing
unique
substantial limitation
are
not
the
that failure to
qualifications
of a
to
major life
did
not
activity.
(10th
17
212, 214-16
traits
of
poor
judgment
termination
bodybuilder's bulk).
These
F. Supp.
as
the applicant is
irresponsibility);
739, 746
airline
(C.D. Cal.
steward
due
to
and
on a job-specific perception
unable to excel
at a narrow
trade and a
determining whether
an impairment is
substantially limiting
is disqualified, (2)
to which
the
the individual's
jury
perception
of
rationally could
what
it
have concluded
thought
to
be
that
plaintiff's
of a substantial limitation.
range of jobs to
serve
stop on our
odyssey requires us
to consider
18
whether there
that plaintiff
to work
to conclude
as an
IA-MR.
is one who
is able to
a person's
qualifications
for a
job,
see Bento
v.
___ _____
act
unfounded
particular
solely on
the
assumption
job,
that
even
if
basis
of
subjective beliefs.
an applicant
arrived
is
at in
unqualified
good
faith,
(rejecting
good
faith
"[d]iscrimination on the
under
the guise
restrictive
of
belief
as
658 F.2d
defense
as
to
a helping
504
the
hand
of
not
because
. . occurs
or a
limitations
is
Cir. 1981)
extending
for a
See Pushkin
___ _______
1372 (10th
under
An
mistaken,
handicapped
the abilities of
a handicapped employee .
. . must be
based on
do the
job, no matter
how well-intentioned").
stereotypes
and
broad generalizations.
The
It cannot rest
After
all, "mere
an inability
to function in
a particular context."
Davis, 442
_____
plaintiff's
herself
and
the
morbid obesity
Ladd
Center's
otherwise
qualified,
reasonable
for appellant to
qualified.
This
or,
in
presented
residents
the
that
alternative,
protestation is
such a
undone
risk
to
she
was
not
that
it
was
by three
independent
considerations.
First,
serves,
because
at most,
plaintiff
was
to
appellant's
generate
otherwise
evidence
a fact
qualified,
question
the
on
this
as to
whether
responsibility
the jury.
for
See Arline v.
___ ______
point
The jury
believe that
we question whether
make
abilities
and
specific
instead
factual question.
inquiries
relied on
into
At trial, MHRH
plaintiff's
generalizations
physical
regarding an
inverse of the
"fact-specific and
287, that the
"evidence" comprises
U.S. at
Indeed, appellant's
graphic illustration
of
an
employment
20
decision based on
stereotyping
exactly the
sort of employment
its
concern over
workers' compensation
denying employment.
that
the applicant
Rehabilitation
other
costs
high
is
absenteeism
is
no
longer
rises to
"otherwise
employers to
burdens
and increased
itself a prohibited
Unless absenteeism
Act requires
miscellaneous
involved
bear
in
basis for
a level
qualified,"
such
the
absenteeism and
making
reasonable
on this
following
issue.
the
Plaintiff received
physical
examination
a satisfactory
conducted
by
applied
lifting ability,
____________________
years
of employment;12 and
and responsibilities
evidence,
we believe
From
jury lawfully
any impairment,
those duties
this, and
could
other,
have found
"otherwise qualified"
to
E
E
Our
last port
of
call
whether the
evidence justified a
plaintiff's
request
obesity.
for
requires
that
we
employment due
solely
determine
turned down
to
her morbid
reason for
offered a hint of
rejecting plaintiff's
consistently
any non-weight-related
application.
Rather, it
has
conceded that it
cold shoulder
medical clearance.
The record is
pellucid that Dr. O'Brien's refusal had three foci, each of which
related
there was
directly
to
plaintiff's obesity.13
considerable room
for a jury
to find
On
this record,
that appellant
CONCLUSION
CONCLUSION
____________________
We need go no further.
confuses
present
or "good," morbid
barriers transgress
preserve them
federal
law, those
who erect
consequences.
obesity can
and seek
In this
to
case, the
to her morbid
Affirmed.
Affirmed.
________
And
23