USCA1 Opinion

December 13, 1995 UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

_______________________

No. 95-1313

ANDRE GRENIER,

Plaintiff - Appellant,

v.

CYANAMID PLASTICS, INC.,

Defendant - Appellee.

_______________________

ERRATA SHEET
ERRATA SHEET

The opinion of this Court issued on November 27, 1995, is

amended as follows:

1.

On page 12, change footnote 3 to read:

change

Both parties refer us to this Guidance although it was

published after the decision by Cyro to reject Grenier's
application.

We note that a revised version of the Guidance

was issued October 10, 1995, after oral argument in this

case.

See Equal Employment Opportunity Comm'n, Enforcement

___
___________

Guidance: Pre-Employment Disability-Related Questions and

_________________________________________________________
Medical Examinations (Oct. 10, 1995) (reprinted in EEOC
____________________
____
Compl. Man. (CCH)
___________

2.

6093, at 5371).

On page 13, lines 2-3, delete this parenthetical:

delete

(reprinted in EEOC Compl. Man. (CCH)

________________

6903, at 5371, and in

Americans with Disabilities Act Manual (BNA) No. 29)

______________________________________

3.

On page 22, end of 6th line from bottom, add "1st Cir." to

add
parenthetical, so that it reads:

(1st Cir. 1995)

4.

On page 24, 5th line from bottom, end of parenthetical,

change "at 355" to "at 347-48".

change

5.

On page 25, end of line 4, insert a footnote:

insert

On October 10, 1995, subsequent to oral argument, the EEOC

issued a new Guidance.

Although neither party has argued

that we ought to consider this newest guidance, we note that

the EEOC has revised its interpretation of the ADA and now
reaches the same conclusion.

Under a section headed "The

Pre-Offer Stage," the EEOC now explains:

However, when an employer could reasonably believe that

an applicant will need reasonable accommodation to
perform the functions of the job, the employer may ask
that applicant certain limited questions.
Specifically, the employer may ask whether s/he needs
__________________
reasonable accommodation and what type of reasonable
________________________
_______________________
accommodation would be needed to perform the functions
_____________
of the job.

Enforcement Guidance: Pre-Employment Disability-Related

_______________________________________________________

Questions and Medical Examinations (Oct. 10, 1995) (emphasis

__________________________________
in original).

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-1313

ANDRE GRENIER,

Plaintiff - Appellant,

v.

CYANAMID PLASTICS, INC.,

Defendant - Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

___________________

____________________

Before

Selya and Boudin, Circuit Judges,

______________

and Saris,* District Judge.

______________

_____________________

Roderick H. Potter, with whom Potter, Prescott, Jamieson &

__________________
____________________________

Nelson was on brief for appellant.

______
Jerrol A. Crouter, with whom Christopher G. Jernigan and
_________________
_______________________
Drummond Woodsum & MacMahon were on brief for appellee.
___________________________

____________________

November 27, 1995

____________________

____________________

Of the District of Massachusetts, sitting by designation.

SARIS,
SARIS,

District Judge.
District Judge.
_______________

Appellant

Andre

Grenier

("Grenier") was employed as an electrician for Cyanamid Plastics,

Inc., d/b/a Cyro Industries ("Cyro"), for several years before he

was

After

placed on

his

operation

disability leave

employment

of

had

the company

due to

officially

disability

receiving disability benefits, Grenier

an

individual

with

accommodation to return to

his

previous

position.

requested Grenier

to

disability

psychological problems.

terminated

policy,

but while

still

notified Cyro that he was

who

needed

work and applied to be

Before making

by automatic

him

provide certification

reasonable

re-hired into

a job

from his

offer, Cyro

physician

stating

that

restrictions

he

was

or

prepared

identifying

necessary for him to return

to

return

the

to

reasonable

to work.

work

without

accommodations

When Grenier failed

to do

so, his application was rejected.

The difficult issue on

the

Americans

12112(d),

with

which

examinations and

Cyro did not

appeal is whether Cyro violated

Disabilities

prohibits

Act

certain

("ADA"),

preemployment

inquiries of a job applicant.

violate this provision

42

of the ADA,

A.
A.

Facts
Facts

STATEMENT OF THE CASE

STATEMENT OF THE CASE
_____________________

medical

Concluding that

we affirm

district court's entry of summary judgment for Cyro.

I.
I.

U.S.C.

the

Reviewing

the

factual

record

in

the

light

most

favorable to the nonmoving party, as we must at summary judgment,

see Mesnick
___ _______

v. General Elec. Co., 950 F.2d

__________________

816, 822 (1st

Cir.

-2-

1991),

cert. denied, 504 U.S. 985 (1992), we treat the following

____________

facts as undisputed.

1.
1.

The Disability Leave

The Disability Leave

Andre Grenier worked as a shift electrician for Cyro at

its

plant in

Sanford,

Maine, from

1980

technical skill as an electrician was good.

several other employees were

machinery

that

responded

to

irrational

shift.

had

the

Grenier's

In 1989, Grenier and

questioned about vandalism of plant

occurred

during

questioning

"in

manner" and

to 1989.

their

failed to report

shift.

Grenier

highly

emotional

and

to his

next scheduled

He informed his supervisor, William Kennedy, that he was

afraid to be on a shift without an alibi, and that he was "losing

it."

Stating

that Grenier's behavior

potentially dangerous," Kennedy placed

in November 1989.

when you

was "very disruptive

Grenier on medical

This leave was explicitly "until

can be cleared by

our medical department to

and

leave

such a time

return to

work."

Kennedy

informed Grenier

in writing

that in

order to

return he would have to go through the standard reentry screening

process,

including

permitting

his

doctors

to

discuss

the

specifics of his case with the company doctor.

In August 1990, Grenier mailed the first of a series of

letters to

Cyro, including a one-page

letter received September

27, 1990, and a six-page "statement" of April 11, 1991.

letters,

Grenier criticized

the plant

manager Skip

In these

Brogli and

complained that company actions in investigating vandalism at the

plant and placing him

on medical leave had caused

-3-

him to suffer

increased

anxiety.

that he claimed were

He also

He attacked several

policies of

the plant

a "constant source of aggravation" to him.

discussed in detail

various collateral issues,

such as

the criminal charges faced by the son of a Cyro manager, a sexual

harassment

investigation

of

fellow

employee,

and

various

transfers of Cyro managers.

Grenier informed

Cyro in his letters

Dr. Stewart "describes me as

"I prefer the

word 'proud.'"

describes me as having

that his analyst

being Narcissistic," but noted that

He stated that "Dr.

Stewart also

'somewhat paranoid beliefs concerning the

malevolent intent of the (relatively

new) management.'"

He also

noted that "[a]fter a year and a half of being unable to work, my

analyst feels

job and

that it would be

find another . .

Skip guy

in my best interests

. that I've become

[manager Skip Brogli]."

to quit my

obsessed with this

He stated repeatedly, however,

that he refused to quit his job.

"As a final

note," wrote Grenier in one

letter, dated

April 11, 1991, "I want to point that [sic], although Dr. Stewart

is indicating

still

that he feels

that I

feel convinced that I am."

had "some

strong elements of

paranoia is not

And:

disabled, I

Grenier realized his statement

paranoia," but

just my own .

throughout the workforce."

am not totally

. . it has

claimed that

"the

become fairly rampant

The

continuing

recently,

incidents

should

be

Corporate headquarters
in

Sanford, Me.

of

vandalism,

clear

signal

to

that Cyro Industries,

is still

more than

just a

little bit sick.

-4-

There is

still some

the right

steps are

hope, however,
taken.

And

if only

unless the

right steps are taken, somebody else is going

to be hurt, maybe even killed.
sure.

Of that, I am

Grenier would not voluntarily terminate his employment.

He

remained on indefinite

when his

of

the

disability leave until

May 12, 1991,

employment at Cyro terminated automatically as a result

expiration

of his

continuous

service

credits.

Cyro

informed Grenier of his termination by letter May 15, 1991.

Grenier received

two-year period ending

plan, benefits were

under

the regular

December 31, 1992.

payable for up to

care of

perform the duties of

continued beyond

disability benefits

a licensed

from Cyro

Under the

his specific job, but benefits

this period

company's

two years if Grenier

physician and

only if the

for a

was

unable to

would have

Disability Department

determined that his medical condition prevented him "from working

at any job for

which [he was] reasonably qualified

to perform."

On December 4, 1992, the Cyro disability department wrote Grenier

that based

on information

received from an

examination of July 30, 1992, he

independent medical

was not disabled to this extent

and, therefore, no benefits were payable after January 1, 1993.

2.
2.

In

Application for Re-Employment

Application for Re-Employment

a letter dated December

Robert Lysaght,

18, 1992, and addressed to

the Personnel Operations Manager

at the Sanford

plant, Grenier asked to be considered an applicant for the job of

shift

electrician,

receiving

his

former

disability benefits

position.

at this

-5-

time.

Grenier

In

was

still

this letter,

which

was

under

the

heading

"request

for

employment

accommodation," Grenier stated:

I qualify as an individual
as defined

with a disability

by Federal and State Civil Rights

laws.

understand

conducting

that

interviews

CYRO

Industries

is

for

the position

of

shift mechanic in the

electrical department.

The

letter

purpose

of this

accommodation to return to
capacity

as

had

is

to request

work in the

been

working

same
since

September of 1980.

. . .

believe

that

should be

afforded

the

opportunity to
my

job,

at

be accommodated to
the

very least,

return to

for

trial

period, to prove that I am able to perform my

job.

believe

that,

under

reasonable

circumstances, I should be able to perform in

a safe and reliable manner.

In response, Lysaght told Grenier in a January 5, 1993,

letter that

that

"CYRO is

not currently accepting

the Maine unemployment

was soliciting applications.

on

January

4,

1993

--

office would be

applications" but

notified when Cyro

In reality, a job notice was posted

subsequent

to

Grenier's

request for

consideration as an applicant, but prior to the date of Lysaght's

response.

Lysaght requested in his letter:

Since
a

your termination of employment came as

result

of

the expiration

of

Continuous

Service Credits while you were on an extended

medical leave, CYRO would

reasonably request

that you provide us with certification from a

physician that

you are prepared to return to

work without restrictions or

accommodations that

identifying any

are required for

return to

work at the Sanford

course,

any

requests

you to

location.

Of

for

employment

accommodation will be considered

with regard

-6-

to

the reasonableness

at

the time

of

the

employment interview process.

Therefore, in order
CYRO

Industries you

to return
need 1)

to work
keep

with

in touch

with the Maine Unemployment office in Sanford

to

learn when

applications;

CYRO is
2)

accepting employment

complete

application for a position

qualified;

and 3)

an

for which you are

provide CYRO

from your physician that you

return

to

identifying

work

without

employment

with notice

are prepared to
restrictions

those reasonable

or

accommodations

that may be necessary.

By letter

of January

therapist's certification

15, 1993, Grenier

that he was disabled

forwarded his

and requested to

discuss accommodation with Cyro Vice President William Loman.

also

maintained that

argued that the

his employment

May 15,

had never

1991, letter that

He

terminated, and

informed him of

the

termination "simply implies that my employment is terminated."

Cyro's New Jersey-based Personnel Director Thomas Ayres

responded

by letter of January 25th by informing Grenier that he

must follow the steps outlined in Lysaght's January 5th letter in

order to be considered for employment.

Additional

correspondence

ensued.

Grenier

asserted

that he was "capable of performing the essential functions of the

job

with or without accommodation" but failed to describe how he

would perform and refused to provide medical documentation.

Cyro

continued to request the documentation.

On February 22, 1993, Cyro mailed Grenier an employment

application,

March 15,

which

1993,

Grenier promptly

Cyro

rejected

-7-

returned.

Grenier's

By letter

application

of

for

employment, stating that, "[a]fter careful review of all relevant

information,

your

request

for

employment

consideration

is

denied."

B.
B.

Proceedings Below
Proceedings Below

Grenier filed a two-count

Maine

the

on June 23, 1994, claiming

Maine Human

Rights Act, 5

that Cyro violated the ADA and

M.R.S.A.

filed a motion

for summary

inquiries, and

Grenier opposed the

The District Court

complaint in the District of

judgment on the

4551 et seq.1
________

issue of

motion on the

entered summary judgment

Cyro

pre-offer

same grounds.

for Cyro.

Grenier

argues on appeal

that Cyro's pre-offer inquiry

and that there are

to

his

claim

violated the ADA

genuine issues of material fact

that

Cyro's

failure

to

hire

with respect

him

constituted

intentional discrimination.

II.
II.

A.
A.

Standard of Review
Standard of Review

This

summary

ANALYSIS
ANALYSIS
________

court

reviews

judgment de novo.
________

the

The

district

standard

court's

of review

clearly articulated by this court as follows:

Since

appellate review of a grant of summary

judgment
like

is plenary,

the

district

the court
court,

"must

of appeals,
view

the

entire record in the light most hospitable to

the

party

opposing

indulging all reasonable

summary

judgment,

inferences in

that

grant

has

of

been

party's favor."

An

appellate panel

restricted to the district

but

can

affirm a

summary

is not

court's reasoning
judgment

independently sufficient ground.

on any

In the end,

____________________

As the parties acknowledge that federal law controls

construction of the state claim, we do not discuss it separately.

-8-

the entry

of summary judgment can

be upheld

only if "the pleadings,

depositions, answers

to interrogatories, and

admissions on

together

with the

affidavits, if

file,

any, show

that

there is

material fact

no

genuine issue

and that

as to

any

the moving party

is

entitled to a judgment as a matter of law.

Mesnick v. General Elec. Co., 950 F.2d 816, 822

_______
__________________

(1st Cir. 1991)

(citations omitted), cert. denied, 504 U.S. 985 (1992).

____________

B.
B.

Statutory Framework
Statutory Framework

close

framework is

under the

analysis

essential to

ADA when

of

the

statutory

determine the

dealing with the

and

regulatory

employer's obligations

known disability of

a job

applicant.

1.
1.

The Statute
The Statute

The ADA, 42

provide

clear

and

U.S.C.

12101 et seq.,
_______

comprehensive national

was enacted

mandate

for

"to

the

elimination

of

disabilities."

discrimination

42

U.S.C.

against

individuals

12101(b).

In

the

context

with

of

employment, the ADA provides:

(a)

General rule.
General rule.

discriminate

against a

with a disability
of

such

No covered

entity shall

qualified individual

because of the

individual

in

regard

application

procedures,

the

advancement,

or

of

employee
other

discharge

compensation,

terms,

disability

job

conditions, and

to

job

hiring,
employees,

training,

and

privileges of

employment.

42 U.S.C.

12112(a).

With regard to medical examinations

ADA

sets

up

12112(d)(2);

separate

rules for

post-offer

pre-offer

pre-employment

-9-

and inquiries, the

job

applications,

examinations,

12112(d)(3); and inquiries of current employees,

12112(d)(4).

Section 12112(d) provides as follows:

(d)
(1)

Medical examinations and inquiries.

In

general.

The

discrimination
shall

as

include

prohibition

referred to
medical

against

in [

12112(a)]

examinations

and

inquiries.

(2)

Preemployment.

(A)

Prohibited examination or inquiry.

as

provided in

entity

shall

paragraph
not

(3), a

conduct

Except

covered

medical

examination

or make

applicant as
an

inquiries

to whether such

individual with

of

job

applicant is

a disability or

as to

the nature or severity of such disability.

(B)

Acceptable
make

inquiry.

preemployment

ability

of an

covered entity may

inquiries

applicant

into

to perform

the

job-

related functions.

Pursuant to

paragraph (3),

examination after

an employer

may "require

an offer of employment has

a medical

been made to a job

applicant and prior to the commencement of employment duties, and

may

condition

an offer

examination" only

of employment

on

the results

in certain circumstances.2

of such

Once an applicant

____________________

This section provides in relevant part:

(3)

Employment

entrance

examination.

entity may

require a medical

covered

examination after

an

offer of employment

applicant
employment

and

prior

duties of

condition an offer of

has been made

to

the

such

to a job

commencement

applicant, and

of

may

employment on the results

of such examination,
if --

(A)

all

entering

such

an

employees
examination

are subjected

to

regardless

of

disability;

-10-

becomes an

employee, an employer is prohibited

from requiring a

medical

examination or

whether he

nature

is

an "individual

or severity of the

inquiry is shown to be

necessity."

the

making inquiries

with a

of an

employee as

disability or

as to

to

the

disability unless such examination or

job-related and consistent with

12112(d)(4).

business

An employer may make "inquiries into

ability of an employee to perform job-related functions."

12112(d)(4)(B).

2.
2.

The Regulations
The Regulations

The

Employment

employer may

regulations adopted

Opportunity

the ADA

("EEOC")

by the

provide

make "pre-employment inquiries into

an applicant to

applicant to

Commission

under

Equal

that

an

the ability of

perform job-related functions, and/or may ask an

describe

or to

demonstrate how,

with or

without

reasonable accommodation,

job-related

crafted

the applicant will be

functions."

1630.14(a)

29 C.F.R.

in response

to

able to perform

1630.14(a).

comments on

The

EEOC

the proposed

regulation from employers asking "whether an employer may ask how

an individual

will perform a job function

when the individual's

known disability appears to interfere with or prevent performance

of job-related functions."

56 Fed. Reg. 35725, 35732 (1991).

The EEOC published

section-by-section

as an appendix to the regulations a

"Interpretive

Guidance

on Title

of

the

____________________

(B)

information obtained [is kept confidential,

with limited exceptions]; and

(C)

the

results of

such examination

are used

only in accordance with this subchapter.

-11-

Americans with Disabilities

Act."

29 C.F.R. Pt.

have looked to this source in interpreting the ADA.

1630, App.

We

See Carparts
___ ________

Distrib. Ctr., Inc. v. Automobile Wholesaler's Ass'n, 37 F.3d 12,

___________________
_____________________________

16

(1st Cir. 1994).

Act by

the

courts

by reason

Such administrative interpretations of the

enforcing agency,

experience and

of their

"while not

authority, do

informed judgment

controlling upon

constitute a

to which courts

the

body of

and litigants

may properly resort

for guidance."

Meritor Sav. Bank, FSB

_______________________

v.

Vinson, 477 U.S. 57, 65 (1986).

______

The

EEOC

explains

the

regulation

1630.14(a)

follows:

An

employer may

describe

or

without

to

also

ask an

demonstrate

reasonable

applicant
how,

with

accommodation,

to
or
the

applicant will be able to perform job-related

functions.

Such a request may be made of all

applicants

in

the

same

regardless of disability.
also

be made

disability

such a

of

or not the

an applicant

to

known

function,

employer routinely makes

For example,

in the job

an employer may ask

leg who applies for a

as a home washing machine repairman

demonstrate or

without

whose

job-related

an individual with one

position

Such a request may

request of all applicants

category.

category

may interfere with or prevent the

performance
whether

of

job

to explain

accommodation, he

how, with

would be

or

able to

as

transport

himself and

basement stairs.
not inquire
the

tools

However, the

as to the nature

disability.

employer cannot
the

his

down

employer may
or severity of

Therefore, for example, the

ask how the

leg or whether

the loss

individual lost
of the

indicative of an underlying impairment.

3.
3.

the

The Guidance
The Guidance

-12-

leg is

An

EEOC Enforcement

Guidance,

dated

May 19,

1994,3

further aids our interpretation of the rules concerning pre-offer

inquiries

of

Employment

applicants with

Opportunity

known

disabilities.

Comm'n,

See
___

Equal

Enforcement
Guidance:
________________________

Preemployment
Disability-Related
Inquiries
and
Medical
_________________________________________________________________

Examinations Under the Americans with Disabilities Act of 1990

_________________________________________________________________

(EEOC Notice 915.002) (May 19, 1994) [hereinafter Guidance].

________

Guidance

was designed

pending coordination

Summ.

"for interim

with other

It is not binding

relevant

statute.

ADA

provisions,

use by

EEOC investigators,

federal agencies."

Id., Exec.
___

law, but as a detailed analysis of

it

aids our

The

interpretation

of

the

the

In

Reasonably

section

Believe

entitled

that

"When

the

Known Disability

Employer

Will

Could

Interfere With

Performance of Job Related Functions," the Guidance provides:

When

an

employer

that

an

applicant's

interfere

with

could reasonably

the

known disability
performance

related function, the

particular
demonstrate
function,

s/he

with

or

accommodation.

of

will
a job-

employer may ask

applicant
how

believe

that

to

describe

or

would

perform

the

without

reasonable

Such inquiries

or requests

are not prohibited pre-offer inquiries.

____________________

Both

parties

published

after

application.
issued
Equal

refer us
the

to

decision

this
by

Guidance although
Cyro

to

reject

it

was

Grenier's

We note that a revised version of the Guidance was

October 10, 1995, after oral argument

Employment Opportunity Comm'n,

in this case.

See
___

Enforcement Guidance: Pre__________________________

Employment Disability-Related Questions and Medical Examinations

_________________________________________________________________
(Oct. 10,

1995) (reprinted in EEOC Compl. Man. (CCH)

_________________

5371).

-13-

Example 5:
_________
leg

R may ask an

who applies

linesperson
she

would

to

a job

describe or

perform the

because R may
one leg

for

applicant with one

as a

telephone

demonstrate how

duties

of the

job,

reasonably believe that having

interferes with the ability to climb

telephone poles.

6093, at

In some

cases, an applicant may

obvious

disability,

disclose

that s/he

that

would

such

reasonably

cases,

applicant
performance,

hidden disability
interfere

a job-related

function.

employer

describe
with

accommodation.

voluntarily

appear to

the

to

may

has a

with performance of
In

but

not have an

or

may ask

the

or

demonstrate

without

reasonable

Such inquiries

or requests

are not prohibited pre-offer inquiries.

Example 6:
__________

An

applicant

for

the job

of

repairing underground sewer lines voluntarily

discloses that she has severe claustrophobia.
R

may

reasonably

claustrophobia
employee's

would

ability

confined space of
may

determine

that

interfere
to

work

an underground

therefore ask the

severe
with

an

within

the

sewer.

applicant to describe

or demonstrate how she would perform the job,

with or without reasonable accommodation.

Guidance
________

IV.B.5.b.

The EEOC explains

that allowing an employer to

ask an

applicant with a known disability

he

would perform a job-related

function "is in

both applicants and employers."

the interest of

Id. at n.23.
___

Employers

are entitled

applicant

with

an

to describe or demonstrate how

to

know whether

apparently

an

interfering

disability can perform job-related functions,

with or without reasonable accommodation.
is in the interest
a

disability

performance in

to

of an applicant with such

describe

or

order to dispel

s/he is unable to

It

demonstrate
notions that

perform the job because of

the disability.

Id.
___

-14-

In a

section entitled

Accommodation and

for Accommodation,"

Requests for

"Inquiries Concerning

Documentation if

the Guidance permits an

Need for

Applicant Asks

employer during the

hiring process to require an applicant "to inform the employer of

any reasonable

accommodation needed"

perform a "job demonstration."

Id.
___

accommodations for the job, as opposed

to take an

IV.B.6.a.

"interview" or

With respect to

to accommodations for the

hiring process, the Guidance explains:

An employer may ask an applicant whether s/he

can

perform specified

job-related functions

with

or

because
about

without
these

reasonable

accommodation,

inquiries elicit

an applicant's ability
_______

functions,

not

to perform job

information

applicant's disability.

the

pre-offer

perform
without

how

s/he

functions,

reasonable

accommodation,

these inquiries elicit

an

or demonstrate,

stage,

job-related

about

An employer also may

ask an applicant to describe

at

information

would

with

or

because

information about

an

applicant's ability, not information about an

_______
applicant's disability. . . .

However, at the
may

not

pre-offer stage, an employer

generally

applicant needs
the job.
make

For

example, an employer
such

this

inquiries

as,

"Would

accommodation in

"Would you need

perform

the

may not
you

this job?"

reasonable accommodation
specific

are

whether

reasonable accommodation for

inquiries

reasonable

inquire

likely to

about the existence

generally,

only

disability

would

function?"

need
or
to
Such

elicit information

of a disability because,
an

individual

require an

Therefore, these inquiries are

with

accommodation.
prohibited at

the pre-offer stage.

If
that

an

applicant
s/he

accommodation

has voluntarily

would

need

to

perform

the

disclosed
reasonable
job,

the

employer still may not

make inquiries at the

pre-offer

the type
____

reasonable

stage about

accommodation

of required

(except where

the

-15-

applicant

has

requested

reasonable

accommodation as part of a required pre-offer

job demonstration, as described above).

Id.
___

IV.B.6.a (emphasis in original).

When an applicant requests reasonable accommodation, an

employer

may

request

professional (e.g.,

stating

that s/he

employer

may also

functional

"documentation

a doctor, rehabilitation

has

require

limitations "for

disability."

which

that

such

requests

an

appropriate

counsellor, etc.),

Id.
___

documentation as

requested (and which flow from the

reasoned

from

IV.B.6.b.

to an

applicant's

reasonable accommodation

disability.)"

are

not

Id.
___

prohibited

inquiries because:

Requesting
with

the

example,
that

when

such documentation
ADA's
Congress

is consistent

legislative history.
specifically

an applicant

An

For

anticipated

requests reasonable

accommodation for the application process (or

The

is

EEOC

pre-offer

when

an

accommodation

employee

requests

for

job),

the

reasonable
the employer
_____________

should engage in an interactive process with

_____________________________________________
the individual to determine an effective
_____________________________________________
reasonable accommodation.
________________________

Id. (emphasis added).

___

employer

may at

the

As

an example, the

pre-offer stage

obtain documentation from a

EEOC stated that

require

an applicant

to

professional stating she cannot lift

a certain amount and needs reasonable accommodation.

C.
C.

an

Id.
___

The Pre-Offer Inquiry

The Pre-Offer Inquiry

With this statutory

we turn to Grenier's

claim that Cyro's requirement of

certification violates ADA

1.
1.

and regulatory framework

Getting Along
Getting Along

12112(d).

in mind,

a medical

-16-

First, Grenier

argues that

medical

certification

because

the request was not

perform

the job-related functions.

possessed

the requisite

electronic

tasks called

constituted

an

inquiry

how he would

Rather than ask "whether he

to perform

in the

requiring a

impermissible

for information about

skills

for

Cyro's letter

the electrical

job description,"

and

Grenier

complains, "Cyro assumed that his ability

functions was

illness."

called

into question

by

to perform job related

his history

of

mental

Grenier argues that Cyro already had knowledge that he

was able to do the essential job-related functions because he had

worked there for nine years and was "technically qualified."

Grenier

functions of the

ability

functions

position

C.F.R.

incorrectly

assumes

that

the

essential

job of shift electrician require only technical

and experience as

means the

an electrician.

fundamental

job duties

"The term essential

of the

employment

the individual with a disability holds or desires."

1630.2(n)(1).

the only essential

Technical skills and

requirements of

a job.

29

experience are not

See Pesterfield
___ ___________

v.

Tennessee Valley Auth., 941 F.2d 437, 441-42 (6th Cir. 1991) ("at
______________________

least the ability

to get along with

supervisors and co-workers"

was essential function of job as tool room attendant); Mancini v.

_______

General Electric Co.,

______________________

("ability to

follow

820 F.

the orders

function of any position");

*9

(S.D.

emotional

Ohio,

Supp.

Dec. 15,

stability" was

of

141,

147

superiors is

(D. Vt.

an

Pickard v. Widnall, 1994 WL

_______
_______

1994) (No.

essential

-17-

C-3-94-40)

job function

1993)

essential

851282,

("mental

for

and

military

position); Johnston v. Morrison, 849 F. Supp. 777, 778 (N.D. Ala.

________
________

1994)

(waitress who was unable to handle pressures of working on

crowded nights or memorizing frequent menu changes was

unable to

perform essential functions of job); cf. Bento v. I.T.O. Corp. of

__ _____
_______________

Rhode Island, 599 F.

____________

Supp. 731,

742-43 (D.R.I.

1984) (although

there is "no question that plaintiff . . . is qualified to do the

job, at

least in the sense of knowing how

not necessarily

to perform it," he is

"otherwise qualified" within the

meaning of the

Rehabilitation Act).

More specifically, an

employer may reasonably

believe

that an employee known to have a paranoia about the plant manager

is not

able to

California,
__________

Aug.

perform his

job.

Cf.
___

Voytek v.
______

University of
_____________

1994 WL 478805, *15, 6 A.D.D. 1137, 1161 (N.D. Cal.,

25, 1994) (No.

C-9203465 EFL)

legally denied re-employment after

(holding that

employee was

period of disability where he

"could not continue to perform all of the tasks assigned to him,"

due in part to "the ongoing conflict with his supervisor").

The ADA does

to

a known

"interactive

applicant.

an

disability at

process"

the pre-offer

beneficial

to

to wear blinders

stage, but

both

the

permits an

employer

and

The EEOC regulations recognize this by providing that

employer

describe

not require an employer

or

can ask

an applicant

demonstrate

accommodation" the

how

applicant will

with

"with

a known

or

be able

disability to

without

to do

reasonable

the job.

29

C.F.R.

1630.14(a).

recently been

Here, Cyro knew that the applicant had just

unable to perform

his specific job

at Cyro as

-18-

result

of a mental disability

for which he

was still receiving

benefits from Cyro and undergoing psychiatric treatment.

Grenier

himself

performing

had

any work,

was

Indeed,

claimed

he

totally

disabled

from

not just

his specific job

at Cyro.

Cf.
___

August v. Offices Unlimited, Inc., 981 F.2d 576, 581-82 (1st Cir.
______
_______________________

1982)

(man who

had

"totally disabled"

not

be

found

Massachusetts

asserted on

insurance

and had presented no

to

be

"qualified

anti-discrimination

forms that

he

was

contrary evidence could

handicapped

statute,

person"

Mass. Gen.

under

L.

ch.

151B); Reigel v. Kaiser Found. Health Plan, 859 F. Supp. 963, 969
______
_________________________

(E.D.N.C. 1994)

(woman who

that

she could not perform

that

during the

same

certified to her

her job was

time period

perform for purposes of the ADA).

not

violate the

prohibition

in

she

disability insurer

estopped from asserting

had been

qualified

to

We hold that this employer did

12112(d)

by inquiring

into

Grenier's ability to function effectively in the workplace and to

get

along with his

co-workers and supervisor,

rather than just

his technical qualifications as an electrician.4

2.
2.

The Medical Certification

The Medical Certification

____________________

We note that the inquiry made by Cyro would not necessarily be

permissible under
employer

was

different

circumstances, such

less familiar

with the

nature

applicant's disability, or

with the effect of

job performance.

EEOC

Guidance,

"there

permissible
IV.B.6.b.

As the

and a

are sometimes
prohibited

See generally
___ _________

Paul

where

or extent

Janet

L. Hamilton,

of the

preparing

distinctions between

pre-offer inquiry."

the

Guidance
________

F. Mickey, Jr. & Maryelena Pardo,

Dealing with Mental Disabilities Under the ADA, 9 Lab.

_______________________________________________
(1993);

the

the disability on

recognized when
subtle

as

Law. 531

New Protections for Persons with

___________________________________

Mental Illness in the

Workplace under the Americans with
_________________________________________________________________
Disabilities Act of 1990, 40 Clev. St. L. Rev. 63, 92 (1992).
________________________

-19-

Next Grenier argues

that Cyro's pre-offer

of a medical certification is

an illegal pre-offer inquiry under

the ADA because the regulations

request

to

someone other

requirement

than

"do not by their terms permit

the applicant

at

the preoffer

stage."

As a

preliminary matter, we address

whether a request

for medical

certification constitutes a "medical examination" or

whether

is

it

instead an

"inquiry."

The

ADA prohibits

an

employer from conducting any pre-offer "medical examination" of a

job

applicant.

12112(d)(2).

psychological examinations.

This

prohibition

See Guidance at n.
___ ________

applies to

47 (citing H.R.

Rep. No. 485 (Pt. 3), 101st Cong., 2d Sess. 46 (1990),

in
__

1990 U.S.C.C.A.N. vol. 4, Legis. Hist.,

reprinted
_________

445, 469).

The EEOC

defined "medical examination" as follows:

Medical examinations are procedures

that

seek

nature,

information about

or

physical or
information

severity

of

the existence,

an

individual's

mental impairment, or
regarding

or tests

an

that seek

individual's

physical or psychological health.

Guidance
________

V.A.

We conclude that a certification from a treating

psychiatrist that does not necessitate new tests or procedures is

best

analyzed

examination."

as

an

"inquiry"

rather

than

as

"medical

Also,

contrary

to

Grenier's

assertion,

the

EEOC

interprets the ADA to allow certain inquiries of third parties at

the pre-offer stage.

regarding

provides

an

With respect to "inquiries to third parties

applicant's

medical

condition,"

the

Guidance

that "[a]t the pre-offer stage", an employer can "ask a

-20-

third

party (e.g., a reference)

____

anything that it

could ask the

applicant

directly."

Guidance
________

finds that requests for

confirm the existence of

as

here,

connection

for

with the

IV.B.6.b.

applicant provide

EEOC

a disability are permissible where,

reasonable accommodation

hiring

We conclude

Further, the

documentation from health care providers

to

requests

IV.B.15.

process or

that an

job.

employer

are

See
___

made

Guidance
________

may request

medical certification from doctors

in

that an

of ability

to perform so long as the inquiry does not otherwise run afoul of

12112(d)(2)(A).

The

primary thrust

of Grenier's

appeal is

that this

inquiry -- the requirement of medical certification of ability to

perform from

work

a former

disabled employee

with the same employer -- violates

applying to return

to

12112(d)(2)(A) in that

it

constitutes an inquiry of a "job applicant as to whether such

applicant is an individual with a

disability or as to the nature

or severity of such disability."

The Eighth Circuit recently addressed a similar factual

situation in Brumley v. Pena, 62 F.3d 277 (8th Cir. 1995), a case

_______
____

decided

under

regulations.5

the

Rehabilitation

Brumley was

Act,

and

a mentally disabled

applicable

former employee

____________________

The

ADA

substantive
U.S.C.

extended

to

provisions of

791-794.

the
the

See Chai
___

private

sector

Rehabilitation Act

the

essential

of 1973,

29

R. Feldblum, Medical Examinations

_____________________

and Inquiries under the Americans with Disabilities Act: A View

_________________________________________________________________
from the Inside, 64 Temple L.
_______________
intended that

Rehabilitation Act precedent be

courts in interpreting
also Ennis
____ _____

Rev. 521, 521-22 (1991).

the ADA.

See 42 U.S.C.
___

Congress

considered by the

12201(a); see
___

v. National Ass'n of Business & Educational Radio,

__________________________________________________

Inc., 53 F.3d 55, 57 (4th Cir. 1995) ("To the extent possible, we
____

-21-

of

the

Federal

Aviation

priority

consideration

pursuant

to 5

priority for

disability.

U.S.C.

Administration

for

8151,

re-employment on

He

restoration

challenged

which

("FAA")

to

agency's

sought

federal employment

predicated the

the extent

the

who

level

of recovery from

demand for

of

the

pre-

employment examination by a

was fully or

depression.

psychiatrist to determine whether he

only partially recovered

Id.
___

regulations, the

at 279.

from his severe

In questioning the

court noted

that "[t]he

reactive

application of the

dilemma here

is that

Brumley is not an outside job applicant seeking employment at the

FAA for the first

disability

time."

payments

employment rights with

Id.
___

Id.
___

who

"Rather, he is a recipient of . .

is

seeking

to

the FAA pursuant

to [5 U.S.C.

The court concluded that the employer

require

that

[the

former

employee's]

exercise

his

re-

8151]."

"retains the right to

medical

condition

verified in order to determine his re-employment rights."

be

Id. at
___

279.

As

in

Brumley,
_______

this

Court

faces

the

quandary

of

determining the appropriate parameters

of a pre-offer inquiry of

a former employee who is the recipient of disability benefits and

now seeks re-employment.

be forced to

where

it

Cyro argues that an employer should not

have "amnesia"

is

well aware

with respect to

of

the nature

and

a former

severity

employee

of that

____________________

adjudicate

ADA

claims in

manner

interpreting the Rehabilitation Act.").

statutory provisions
drawn from

decisions

Specifically,

the ADA's

on medical examinations and

Rehabilitation

1614.203(e) (formerly

consistent with

Act regulations.

1614.706); 45 C.F.R.

-22-

inquiries were

See 29
___
84.14.

C.F.R.

employee's disability because it

information

that

eligibility for

should

be

formed

the

basis for

disability benefits.

treated

disability leave, in

as

an

existing

which case

demand medical certification of

42 U.S.C.

had previously received medical

12112(d)(4)

of

existing employees);

61

F.3d 1034,

1036 (1st

reinstatement after

its

Rather,

employee

determination

of

it urges, Grenier

returning

the employer would

be able

ability to return to work.

from

to

See
___

(ADA provisions for medical examinations

Hogan v. Bangor and Aroostook R.R. Co.,

_____
_____________________________

Cir. 1995)

(employee was

suffering collapsed lung as

entitled to

soon as medical

evidence indicated he

at 438

(employee who was hospitalized

was required to

return

was fit to return);

Pesterfield, 941 F.2d

___________

for psychiatric treatment

provide medical certification

to work);

Derbis v.
______

as to ability

United States Shoe Corp.,

_________________________

to

1994 WL

631155, *5, 6 A.D.D. 1071, 1075,

3 A.D. Cas. 1029, 1030, 65 Fair

Empl. Prac. Cas. (BNA) 1328 (D.

Md., Sept. 7, 1994) (No. MJG-93-

130)

(where plaintiff

on disability

leave presented

a medical

report which indicated the employee could return to work but only

with

some

information

accommodation,

to

accommodation),

allow it

employer

to

could

consider

case is

sufficient

any possible

reasonable

aff'd in
part and
remanded
for further
_______________________________________________

proceedings, 67 F.3d 294 (4th Cir. 1995)

___________

this

require

similar

to that

of

(table).

an employee

We agree that

returning

from

disability

leave.

took

account

into

It appears that neither Congress nor the EEOC

the

case

of

returning

employee

formulating the restrictions on pre-offer inquiries.

when

Here, as in

-23-

the case of the returning employee, the employer must be able

assess the extent

perform.

of the applicant's recovery

to

from inability to

Further, if accommodations are necessary to

enable job

performance,

the

employer, who

disability, must learn of those

is

already

familiar with

accommodations in order to

the

have

any realistic chance of assessing ability to perform.

Grenier

Guidance

contends that

prohibits an

identify the

type of
_______

employee

return to

applicant

to

has

that a

work.

The Guidance

disclosed

to perform the job,

not make inquiries at the pre-offer

required reasonable accommodation."

states:

that s/he

in the

physician

reasonable accommodations required

voluntarily

We conclude

as interpreted

employer's requirement

reasonable accommodation

may

the ADA

would

for an

"If

an

need

the employer still

stage about the type of

____

Guidance
________

IV.B.6.a.

that the ADA does not preclude an employer

from

asking an

applicant with

a known
_____

reasonable accommodation to specify

seeks.

disability who

seeks a

the type of accommodation he

As the District Court pointed out, the Guidance prohibits

pre-offer inquiry into

"likely

the type of

accommodation because it

is

to elicit information about the nature and severity of a

disability."

Guidance
________

IV.B.6.a.

The central

purpose of the

prohibition on pre-offer inquiries generally is to ensure that an

applicant's

hidden disability

No. 485 (Pt. 2), 101st

U.S.C.C.A.N.

prohibits

any

vol. 4,

remains

hidden.

See H.R.
___

Rep.

Cong., 2d Sess., at 73, reprinted in 1990

____________

Legis. Hist.,

identification

of

-24-

303, 355

a disability

("The legislation

by

inquiry

or

examination

at the

prohibition

is to

pre-offer stage.");

ensure

disability

(including

considered

by

that an

prior

IV.A ("This

applicant's possible

prior history

the employer

Guidance
________

of

to

the

hidden

disability) is

not

assessment

of

the

however,

the

applicant's non-medical qualifications.").

With

emphasis

is

respect

on

to

encouraging

known

the

disabilities,

employer

to

"engage

in

an

interactive process with the individual to determine an effective

reasonable accommodation."

No. 485 (Pt.

Guidance
________

IV.B.6.b (citing H.R. Rep.

2), supra, at 65-66, U.S.C.C.A.N. at 347-48).

_____

That

is why the EEOC allows an employer to ask an applicant with known

claustrophobia to

describe pre-offer

how she would

job, with or without reasonable accommodation.

meaningful

interaction if

this

court would

interpretation Grenier presses on

perform the

There could be no

accept the

strict

us that an employer who

knows

the precise nature of a disability that interferes with essential

job

functions

accommodation

cannot,

will

on

being

be necessary,

informed

follow

up

pre-offer

with the

that

logical

question "what kind?"6

____________________

On October 10, 1995, subsequent to oral argument, the EEOC

issued a new Guidance.

Although neither party has argued

that we ought to consider this newest guidance, we note that

the EEOC has revised its interpretation of the ADA and now
reaches the same conclusion.

Under a section headed "The

Pre-Offer Stage," the EEOC now explains:

However, when an employer could reasonably believe that

an applicant will need reasonable accommodation to
perform the functions of the job, the employer may ask
that applicant certain limited questions.
Specifically, the employer may ask whether s/he needs
__________________
reasonable accommodation and what type of reasonable
________________________
_______________________

-25-

In sum,

the

ADA by

an employer does not violate

requiring

disability

applying

certification as to

reasonable

a former

for

employee

re-employment

ability to

accommodation

necessary, as

with a

to

return to work

accommodation, and as

long

to the type

as

it

12112(d)(2) of

is

recent

known

provide

medical

with or

without

of any reasonable

relevant

to

the

assessment of ability to perform essential job functions.

D.
D.

genuine

Intentional Discrimination in Denial of Application

Intentional Discrimination in Denial of Application

Finally,

Grenier argues

issues of

material fact

on appeal

as to

that there

his argument

remain

that Cyro

intentionally discriminated against him in violation of 42 U.S.C.

12112(a), as opposed to

if Cyro did

not violate the

12112(d).

Grenier argues that,

specific restrictions on

even

pre-offer

inquiries,

Cyro

there is a

illegally

genuine dispute of

discriminated

material fact whether

against Grenier

based

upon

his

disability when it denied his application for employment.

By failing to

make this argument in his

opposition to

summary judgment, Grenier has failed to preserve this claim.

is by

now axiomatic

court cannot

that an

issue not

be raised for the first

presented to

time on appeal."

v. Holiday Inns, Inc., 595 F.2d 890, 894 (1st

___________________

"It

the trial

Johnston
________

Cir. 1979).

This

____________________

accommodation would be needed to perform the functions

_____________
of the job.

Enforcement Guidance: Pre-Employment Disability-Related

_______________________________________________________

Questions and Medical Examinations (Oct. 10, 1995) (emphasis

__________________________________
in original).

-26-

rule

may

be relaxed

miscarriage

of

only "in

justice would

horrendous

occur."

cases where

Id.
___

a gross

(quoting

Morning Ledger Co. v. United States, 539 F.2d 929, 932 (3d
__________________
______________

1976)).

compelling

For

a new argument

as virtually

to

to be

considered, it

insure appellant's

Newark
______

Cir.

must be "so

success."

Id.

___

(quoting Dobb v. Baker, 505 F.2d 1041, 1044 (1st Cir. 1974)).
____
_____

Even an issue

summary judgment

raised in the

may be

complaint but ignored

deemed waived.

"If

a party

at

fails to

assert a legal reason why summary judgment should not be granted,

that

ground

appeal."

is waived

Vaughner
________

1986); see also

________

(7th

Cir.

reviewing

matters

v. Pulito, 804
______

be

considered or

F.2d 873,

Liberles v. County of Cook,

________
______________

1983).

and cannot

This

is

summary judgment

presented

to

877 n.2 (5th

Cir.

709 F.2d 1122, 1126

because

"an

appellate court,

order,

can

only consider

the district

court."

in

those

Frank C. Bailey
________________

Enterprises, Inc. v. Cargill, Inc., 582 F.2d 333, 334

_________________
______________

1978).

raised on

(5th Cir.

Although this alternative argument

complaint,

and

trial, this

Grenier asserts

would have

does not suffice to preserve

for summary judgment on

that issue in

been

the issue.

all counts based solely on

of the pre-offer inquiry

in his

it

can be found in the

his brief.

under

12112(d).

Although he

Grenier

raised at

Cyro moved

the validity

argued only

made an oblique reference

memorandum opposing summary judgment to Cyro's failure to

challenge

or

admit

discriminated against

his

on

"ultimate contention

the basis

-27-

of

that

Andre

his disability

by

was

the

rejection of his application," he concedes he never addressed the

alternative

claim

of

intentional

related evidence Grenier discussed

facts"

discrimination.

The

only

in his "statement of material

at summary judgment was that Lysaght stated on January 5,

1993 that

Cyro was not seeking

given notice

of the job

applicants, when it had

opening the day

before.

National Ass'n of Business & Educ. Radio, Inc., 53

________________________________________________

See
___

in fact

Ennis v.
_____

F.3d 55, 58

(4th Cir. 1995) (discussing prima facie elements of claim under

12112(a)).

After the judge

determined that

Cyro was

entered final judgment

entitled

to summary

once he had

judgment on

the

issue

of

preemployment

reconsideration

persuades us

medical

was filed.

to exercise

inquiries,

no

motion

for

There is nothing in the record which

our discretion

to bend the

raise-or-

waive rule.

III.
III.

For the

CONCLUSION
CONCLUSION

foregoing reasons, the District

of summary judgment is AFFIRMED.

AFFIRMED

Court's grant

-28-