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Title Polini v. Lucent Technologies

Date 2004

By Alito

Subject Misc

Contents

Page 1

LEXSEE 100 FED APPX 112

PATRICIA POLINI, Appellant v. LUCENT TECHNOLOGIES

No. 03-2285

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

100 Fed. Appx. 112; 2004 U.S. App. LEXIS 11420

January 23, 2004, Argued

June 10, 2004, Opinion Filed

NOTICE: **1 RULES OF THE THIRD CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.

PRIOR HISTORY: ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. (Dist. Court No. 02- cv-00220). Magistrate Judge: Hon. Arnold C. Rapoport.

DISPOSITION: The judgment of the district court was vacated and remanded for further proceedings.

LexisNexis(R) Headnotes

COUNSEL: DAVID L. DERATZIAN, ESQ. (argued), NANCY S. SKALANGYA, ESQ., GEOURGE S. KOUNOUPIS, ESQ., Hahalis & Kounoupis, P.C., Bethlehem, PA, for Appellant.

ROBERT W. CAMERON (argued), THEODORE A. SCHROEDER, LITTLER MENDELSON, Pittsburgh, PA, for Appellee.

JUDGES: Before: ALITO, and CHERTOFF, Circuit

Judges, and DEBEVOISE, * District Judge.

* The Honorable Dickinson R. Debevoise, District Judge of the United States District Court for the District of New Jersey, sitting by designation .

OPINIONBY: ALITO

OPINION:

*113 OPINION OF THE COURT

ALITO, Circuit Judge:

Patricia Polini commenced this action against her for- mer employer, Lucent Technologies ("Lucent"), claim- ing that Lucent violated the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("the ADA"), and the Pennsylvania Human Relations Act, 43 Pa. Stat. Ann. §

951 **2 et seq. ("the PHRA") n1, when it decided not to recall her after a lay off. According to Polini, Lucent made this decision because it regarded her as disabled. The Magistrate Judge granted summary judgement in fa- vor of Lucent. Because we conclude that there are genuine issues of material fact, we vacate the order of the District Court and remand for further proceedings.

n1 Analysis regarding Polini's ADA claim is dispositive of her PHRA claim. Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir.

1999) ("analysis of an ADA claim applies equally to a PHRA claim").

From 1984 to 1985, Polini worked as a "detailer" for Lucent's predecessor, AT&T, and in this capacity she was required, *114 without the aid of a microscope, to examine computer chips for defects. She was later given the job of "process checker," which required her to use a monocular microscope to repair chips. She was laid off as part of a reduction in force in 1985.

Polini was a member of the International Brotherhood

**3 of Electrical Workers ("the Union") and was cov- ered by a collective bargaining agreement between the Union and the employer. In 1995, Lucent began contact- ing former Union-represented employees about returning to work. The Human Resources department, under the di- rection of Deborah Harris (Human Resource Manager) and the supervision of Edgar Tanner (Labor Relations Operations Manager), organized the laid-off individuals into groups based on seniority. Human Resources em- ployees contacted former employees on the list and asked if they were interested in being recalled. Each individ-

100 Fed. Appx. 112, *114; 2004 U.S. App. LEXIS 11420, **3

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ual who expressed an interest was then scheduled for a physical examination in Lucent's Health Services depart- ment. The physical examination consisted of a drug test, a hearing test, a vision test, and a general physical.

According to Harris, Health Services was apparently provided with some information about the nature of the position or positions that were to be filled, but just how much information was provided is not clear. Harris, who was described by the Magistrate Judge as the person who was "most knowledgeable about the recall operation," provided the following explanation:

A. They know what **4 jobs -- again, just sort of briefly or generically, they know what jobs we're hiring for. They don't necessarily, need to know that, but just the rapport we had with the people we talked to a daily ba- sis when the hiring first started. They know if we're hiring for clean room or bench hand or something like that.

Q. Are they looking for something differ- ent-- that's a bad example. Were they looking at something different for bench hand versus an accountant?

A. No. No. Versus accountant, possibly so.

Q. That's why I made it that distinction.

A. Yes.

Q. Are they looking for something different for a bench -- for a clean room operator ver- sus a custodian or somebody in maintenance?

A. I can't answer that.

Q. Do they need to know or do you tell them what the job descriptions of the positions you're hiring for are?

A. We really don't have to get into that, as long as they know it's for a manufacturing position, unless there are some issues that come out of something, out of the examina- tion or out of the hiring process.

App. n2 166-67. When this portion of the deposition is viewed in the light most favorable to Polini, the non- moving party, **5 the most that can be said is that Health Services was given a very general idea of the po- sition or positions that were to be filled.

n2 "App." refers to the Joint Appendix.

Once Health Services completed its exam, it reported to Human Resources whether the person had passed or failed. According to Harris, after Health Services com- pleted an examination, it would give Human Resources

"a piece of paper," "could be a piece of notebook pa- per" saying whether the person had "passed or failed" App. 174-75. She added: "Just something briefly." Id. at

175. If Health *115 Services reported that a person had failed the physical, the person would not be recalled. App. 179-80.

When Polini reported for her physical examination, Mary Silver, a Health Services nurse, administered the vision test. According to Silver, Polini told her that she was blind in her right eye. The vision examination that Silver conducted was the titmus vision orthrator ("the test"). n3 During the test, Silver permitted Polini to keep her glasses **6 on at times and to remove them at other times. The test results revealed that Polini had 20/200 vi- sion in her right eye and 20/25 vision in her left eye, and her stereo depth perception was assessed as poor.

n3 The titmus test is an occupational vision test that is standard in the industry. The test screens for problems in the areas of near vision, far vision, color vision, depth perception, and vertical and lat- eral vision.

Following the vision examination, Dr. Frank Capobianco performed a physical examination of Polini and reviewed the results of Nurse Silver's testing. However, Dr. Capobianco did not know that Polini did not have her glasses on during the entire vision examination, and he testified that this fact would have been important to him. App. 256-57. Dr. Capobianco determined that Polini had severe morbid obesity, hypertension, and monocular vision and that she might "have restrictions for enclosed workspace or restrictive clothing." Id. at 260-62, 414. He also identified certain job-related **7 restrictions, in- cluding an inability to perform "tasks requiring binocular vision" due to "essential blindness right eye." Id. at 260-

61, 265, 416. In accordance with Lucent policy, however, he noted that his final assessment was being deferred un- til he received further medical information from Polini's primary care physician.

On December 2, 1998, Dr. Capobianco referred Polini to her primary health care physician, Dr. Steven Farbowitz, and faxed Dr. Farbowitz a copy of the job de- scriptions for utility operator positions contained in the la- bor contract between the Union and Lucent. Dr. Farbowitz is not an ophthalmologist, and the records that he submit-

100 Fed. Appx. 112, *115; 2004 U.S. App. LEXIS 11420, **7

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ted to Lucent contain no indication that he performed a vision examination on Polini. In addition, Polini testified that Dr. Farbowitz did not perform a vision examination. App. 107. She also stated that she did not discuss with Dr. Farbowitz whether she could perform visual inspections. Nonetheless, on December 4, 1998, Dr. Farbowitz issued a one sentence note stating: "Pat Polini is qualified for the job of utility operator." Id. at 438.

Polini returned to Lucent's Health Services depart- ment on December 10, 1998. As of that **8 date, Dr. Capobianco had already reviewed Dr. Farbowitz's note. Dr. Capobianco placed the same job-related medical re- strictions on Polini on December 10, 1998, as he had tentatively placed on her earlier. Specifically, he again noted that Polini "can't do tasks requiring binocular vi- sion." App. 440. Dr. Capobianco determined that Polini's vision was "functionally monocular," meaning that "the poorer eye cannot be corrected enough when binocular vision is important for things requiring acute depth per- ception or binocular instrument use to be able to do it." Id. at 266-67.

After Dr. Capobianco completed this report, Health Services informed Human Resources that Polini had failed the exam, and Polini was not recalled. It appears that Lucent did not retain whatever document Health Services used to convey its conclusion to Human Resources. App.

175.

*116 A few weeks after December 10, 1998, Polini called the Union to ascertain her recall status. She tes- tified that a Union representative read to her the forms that had been prepared by Health Services concerning her physical examination. App. 51-55. Polini also testi- fied that the same Union representative informed her that Dr. Capobianco **9 had said that she had numerous restrictions and that she suffered from macular degen- eration. App. at 31-32. After speaking with this Union representative, Pollini received via fax the records that Dr. Capobianco had prepared. Polini believes that the Union informed her on January 15, 1999, that Lucent was not going to recall her. Although she spoke to her Union representatives, Polini never spoke with any Lucent rep- resentative concerning why she was not recalled.

After learning of Lucent's decision, Polini went to an ophthalmologist, Dr. William J. Kitei, on February 12,

1999. Polini told Dr. Kitei that she had been informed by Lucent that she had macular degeneration. Based on his examination, Dr. Kitei opined that Polini was "capable of performing almost any job for which she is capable." App.

497. Dr. Kitei's records were never sent to any represen- tative of Lucent's Health Services or Human Resources departments. Moreover, Tanner, Harris, and Silver all tes- tified that they never saw Dr. Kitei's record prior to their

depositions in this case. Id. at 138-39, 182-83, 240.

On February 28, 1999, the Union filed a grievance on Polini's behalf, challenging Lucent's decision not to

**10 recall her. The grievance alleged that Polini was being discriminated against because she was over- weight but made no reference to her vision. App. 441. No information concerning Dr. Kitei's examination or any other new medical information was presented during the grievance proceedings, and the grievance was denied.

II.

The Magistrate Judge granted summary judgment in favor of Lucent on two grounds. First, the Magistrate Judge concluded that Polini was not "regarded as" sub- stantially limited in seeing or working. The parties had disagreed as to the identity of the relevant decision maker at Lucent. Polini argued that the decision not to recall her was actually made by Dr. Capobianco and Nurse Silver, whereas Lucent took the position that the relevant deci- sion makers were Harris, the Human Resource Manager, and Tanner, the Labor Relations Operations Manager. The Magistrate Judge agreed with Lucent because "Harris and Tanner possessed all the decision-making authority," and the Magistrate Judge concluded that Harris and Tanner did not regard Polini as substantially limited in the major life activities of seeing and working because they had not seen Dr. Capobianco's reports and **11 did not know anything about Polini's medical condition other than that she had failed the physical and the vision test. A18-19. n4 The Magistrate Judge rejected the argument that Dr. Capobianco and Nurse Silver were the real decision mak- ers because they "simply conducted medical examina- tions" and had "no idea what Human Resources would do with the information Health Services provided." A18-

19. Moreover, the Magistrate Judge observed that there was no evidence that Dr. Capobianco or Nurse Silver re- garded Polini as disabled. A17. Rather, the Magistrate Judge stated, they "simply noted that Polini was unable to use a binocular microscope." A17.

n4 "A" refers to the documents bound with the

Appellant's brief.

*117 Second, the Magistrate Judge held that, even if Lucent had regarded Polini as having a disability, Lucent was nevertheless entitled to summary judgment based on the defense recognized in Taylor v. Pathmark Stores, Inc.,

177 F.3d 180, 192-94 (3d Cir. 1999). Under Taylor, "if an employer **12 regards a plaintiff as disabled based on a mistake in an individualized determination of the employee's actual condition ..., then the employer has a defense if the employee unreasonably failed to inform the employer of the actual situation." Id. at 193 (foot-

100 Fed. Appx. 112, *117; 2004 U.S. App. LEXIS 11420, **12

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note omitted). The Magistrate Judge noted that Polini did not give Lucent a copy of Dr. Kitei's report and that the grievance filed by the Union did not take issue with Dr. Capobianco's assessment of Polini's vision but instead contended that Lucent was discriminating against Polini because she was overweight. A20-21.

III.

We exercise plenary review over a District Court's grant of summary judgment. Koslow v. Pennsylvania, 302

F.3d 161, 167 (3rd Cir. 2002). In evaluating the District Court's grant of summary judgment in favor of Lucent, we must determine whether there are any genuine disputes of material fact. Fakete v. Aetna, Inc., 308 F.3d 335, 337 (3d Cir. 2002). If not, then viewing the evidence in the light most favorable to Polini, we must decide whether Lucent was entitled to judgment as a matter of law. See FED. R. CIV. P. 56 **13 ; Celotex Corp. v. Catrett, 477 U.S. 317,

322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

The ADA prohibits "discrimination against a quali- fied individual with a disability because of the disability of such individual." 42 U.S.C. § 12112(a). In order to es- tablish a prima facie case of discrimination in violation of the ADA, a plaintiff must prove that she "(1) has a 'dis- ability' (2) is a 'qualified individual' and (3) has suffered an adverse employment action because of that disability." See Deane v. Pocono Med. Ctr., 142 F.3d 138, 142 (3d Cir. 1998) (en banc).

A plaintiff may establish that she has a disability by showing that (1) she suffers a physical or mental impair- ment that substantially limits one or more of her major life activities, (2) she has a record of such impairment, or (3) she was "regarded as" having such an impairment by her employer. See Marinelli v. City of Erie, Pa., 216

F.3d 354, 359 (3d Cir. 2000). On appeal, Polini argues only that Lucent regarded her as disabled. Polini does not claim that she had an impairment that actually limited a major life activity or that she had a record of such an impairment. **14

The Supreme Court has defined "substantially lim- ited" as "significantly restricted as to the condition, man- ner or duration under which an individual can perform a particular major life activity." Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 195, 151 L. Ed.

2d 615, 122 S. Ct. 681 (2002) ("In determining whether an individual is substantially limited in a major life activity

...the following factors should be considered: the nature and severity of the impairment; the duration or expected duration of the impairment; and the permanent or long- term impact of or resulting from the impairment.") (inter- nal quotations and citation omitted). An individual is not substantially limited unless she has "an impairment that

prevents or severely restricts her from doing activities that are of central importance to most people's lives." Id. at 185.

To be "disabled" under the "regarded as" portion of the ADA's definition of disability, Polini must demon- strate either that (1) although she had no impairment at all, Lucent erroneously believed that she had an impair- ment that substantially limited *118 a major life activity or (2) that she had a nonlimiting impairment that **15 Lucent mistakenly believed limited a major life activity. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 489,

144 L. Ed. 2d 450, 119 S. Ct. 2139 (1999); Tice v. Ctr. Area Transp. Auth., 247 F.3d 506, 514 (3d Cir. 2001). n5

n5 The EEOC regulations also allow for an in- dividual to establish that s/he is "regarded as" dis- abled if s/he "has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment." 29 C.F.R. § 1630.2(l)(2). See Sutton,

527 U.S. at 490 ("These misperceptions often 're- sult from stereotypic assumptions not truly indica- tive of ... individual ability.'") (citing 42 U.S.C. §

12101(a)(7)).

The major life activities in which Polini claims Lucent regarded her as substantially limited are seeing and work- ing. In this connection, Polini points in particular to Dr. Capobianco's statement that she had monocular vision. The Supreme Court **16 has held that monocularity is not "a per se disability," but the Court has added that its "brief examination of some of the medical literature leaves us sharing the Government's judgment that people with monocular vision 'ordinarily' will meet the ADA's definition of disability." Albertson's, Inc. v. Kirkingburg,

527 U.S. 555, 566-67, 144 L. Ed. 2d 518, 119 S. Ct. 2162

(1999); see also Sutton, 527 U.S. at 472 ("whether a per- son has a disability under the ADA is an individualized inquiry"). The Court noted that persons with monocular vision "vary by the degree of visual acuity in the weaker eye, the age at which they suffered their vision loss, the extent of their compensating adjustment in visual tech- niques, and the ultimate scope of the restriction on their visual abilities." Id. at 566. As a result, the Court con- cluded, "monocular individuals" must "prove a disability by offering evidence that the extent of the limitation in terms of their own experience, as in loss of depth percep- tion and visual field, is substantial." Id. at 567.

IV.

Lucent defends the decision of the Magistrate Judge on the ground that the relevant **17 decision makers were Harris and Tanner and that they did not regard Polini

100 Fed. Appx. 112, *118; 2004 U.S. App. LEXIS 11420, **17

Page 5

as suffering from monocular vision or, indeed, any other particular vision impairment. All that they knew, Lucent stresses, was that Polini had failed the vision test.

Polini, on the other hand, contends that Harris and Tanner were not the ultimate decision makers because the recall decision was controlled by the outcome of the medical evaluation. Polini notes that, during the grievance proceeding, Tanner stated that he had no ability to re- call Polini because "Medical won't let her in." App. 535. Therefore, according to Polini, the relevant decision mak- ers were Dr. Capobianco and Nurse Silver.

Although the Magistrate Judge held that Harris and Tanner were the relevant decision makers, we conclude that there is at least a genuine dispute of fact on this question. As noted, Polini's claim is that she was not re- called because she was regarded as having a disability. See Pocono Med. Ctr., 142 F.3d at 142. Thus, the focus must be on the person or persons whose determinations in fact controlled the decision not to recall her. This is not a case in which the person having the formal decision making

**18 authority deferred to a report or recommendation submitted by someone else but nevertheless exercised at least some measure of independent judgment. Cases of that sort present issues *119 that we need not confront here. As portrayed to us by both sides, this case, by con- trast, is one in which a reasonable fact finder could find

(and perhaps would be obligated to find) that the officials with the formal decision making authority, i. e., those in Human Resources, exercised no judgment whatsoever. Instead, it may be that the real decision making author- ity was in effect delegated to Health Services. As noted, Health Services was given some information about the positions for which the person to be examined was being considered; Health Services then presumably made some judgment about the physical requirements of those po- sitions and about the physical capabilities of the person who was examined; and Health Services ultimately in- formed Human Resources whether the person had passed or failed the basic components of the exam. If Health Services told Human Resources that the person had failed, Human Resources automatically declined to recall the in- dividual. Under these circumstances, a reasonable **19 fact finder certainly could find (and might be required to find) that Health Services was the real decision maker for present purposes.

Lucent maintains that it is entitled to summary judg- ment even if the real decision making occurred in Health Services because "Dr. Capobianco and Harris merely con- cluded that Polini had monocular vision and could not use a binocular microscope. There is no evidence that they believed Polini's vision limited her daily activities or that she was disqualified from more than one particular job."

Appellee's Br. at 15. We do not agree.

The pertinent question is whether Health Services de- cided that Polini had failed the vision test because it con- sidered her vision to be impaired to such a degree that it substantially restricted her in the major of life activities of seeing or working. As noted, monocularity is often a disability, and here Dr. Capobianco also stated that Polini was essentially blind in one eye. We conclude that the record is sufficient to create a genuine issue as to whether Health Services decided that Polini had failed the vision test because Dr. Capobianco regarded her as substantially limited in the major life activity of seeing.

We **20 believe that evidence in the record also creates a genuine issue on the question of whether Health Services decided that Polini had failed the vision test because Dr. Capobianco regarded her vision as prevent- ing her from performing a broad class or range of jobs. Although it appears that Dr. Capobianco reviewed the job description of the specific job that was open, it is not at all clear that Health Services' decision that Polini had failed the vision test was based merely on the belief that she lacked the visual acuity needed for that position. The long passage from Harris's deposition that was quoted above may be read to say that Health Services customarily con- sidered only whether a person was physically capable of a "generic " type of job, such as "a manufacturing posi- tion." App. 166-67. Thus, the summary judgment record leaves open the possibility that Health Services' decision that Polini had failed the vision test was based on the conclusion that she lacked the vision needed for a broad class or range of jobs.

For these reasons, we hold that the Magistrate Judge erred in granting summary judgment for Lucent on the ground that Polini was not regarded as having a disability.

**21

The Magistrate Judge held that Lucent was entitled to summary judgment on the alternative ground that Polini unreasonably failed to bring to Lucent's attention

*120 evidence that the evaluation of her vision in Dr. Capobianco's report was inaccurate. In this connection, Lucent notes that Polini possessed Dr. Kitei's report by the time of the grievance proceeding but that this report was not furnished to Lucent. Lucent argues as follows:

Polini knew in December 1998 that her vision was an issue with respect to her recall, and that Dr. Capobianco had opined in his report that she "can't do tasks requiring binocular vision." ....Notwithstanding her knowledge of this issue, Polini never informed Lucent

100 Fed. Appx. 112, *120; 2004 U.S. App. LEXIS 11420, **21

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Human Resources or Health Services that her vision had allegedly been improperly as- sessed.

Appellee's Br. at 35.

The defense recognized in Taylor is "fact-specific,"

177 F.3d at 194, and we believe that a reasonable fact finder could find on the present record that Polini acted reasonably. First, it does not appear that Polini was ever informed precisely why she was not recalled. Polini stated that no one at Lucent ever told her the basis for the de- cision, **22 App. 51, 56-58, and Lucent has not pointed to any contradictory evidence in the summary judgment record. Polini presumably knew that the deci- sion was based on medical reasons, but Dr. Capobianco's report of December 10, 1998, which was faxed to Polini by her union representative, set out several restrictions in addition to the inability to "do tasks requiring binocular vision." n6 App. 441. Although Harris stated in her depo- sition that the only reason why Polini was not recalled was her failure to pass the vision test, App. 178-79, it is not clear that either the company and union representatives at the grievance meeting understood this. As noted, the grievance filed by the union referred to Polini's obesity, not her vision. At the step IV grievance meeting, a com- pany representative referred to all three of the conditions mentioned in Dr. Capobianco's first report - "severe mor- bid obesity, hypertension, binocular vision" - and most of the discussion concerned Polini's weight. App. 534-35.

n6 Lucent does not claim that it ever told Polini that her vision was the sole reason why she was not recalled, but Lucent claims that she nevertheless deduced that this was the ground for the decision. Lucent argues as follows. Although Dr. Capobianco's final report imposed restric- tions not related to Polini's vision - viz., "No Work at Unprotected Elevation," "No Ladder or Pole Climbing," and "No Frequent Squatting or Bending," see App. 440, Polini acknowledged dur- ing her deposition that Dr. Capobianco told her that "as a utility operator, you don't have to climb ladders or stoop for eight hours." App. 52. Lucent therefore reasons that Polini must have known that her vision was the sole reason why she was not re- called. Lucent also notes that, after Polini learned that she would not be recalled, the only physician whom she saw was an eye doctor.

While the evidence to which Lucent points is sufficient to support a finding that Polini knew the reason for the contested decision, it is not sufficient to prevent a reasonable fact finder from reaching the opposite conclusion. Polini's union representa-

tive gave Polini a copy of Dr. Capobianco's ear- lier report, which referred to "severe morbid obe- sity" and "hypertension," and the grievance filed on Polini's behalf stated that she was being discrimi- nated against based on obesity. As noted, Polini's obesity was a major topic of discussion at the Step IV Grievance Meeting. See App. 534-35. We hold that there is a genuine issue as to whether Polini knew that her vision was the only reason for the company's decision.

**23

Second, it does not appear that Polini was ever in- formed that Dr. Capobianco believed (based on Nurse Silver's report of the vision exam) that Polini had monoc- ular vision even when wearing corrective lenses. This was important because Polini knew that, without correction, her vision in one eye was very poor. Thus, without know- ing that Dr. Capobianco was referring *121 to her uncorrected vision, she had less reason to challenge his statement.

Third, although Lucent asserts in its brief that only one position ("Utility Operator: Wafer Fabrication Operations") was open and that this position requires the use of a binocular microscope, Appellee's Br. at 5-

6, Lucent has not called to our attention any evidence that Polini was informed of either of these facts. When Nurse Silver faxed job descriptions to Polini's physician, Dr. Farbowitz, her cover memo referred to "utility oper- ator job descriptions," App. 430 (emphasis added), and job descriptions of several different utility operator po- sitions were attached. Id. at 432-37. In addition, the job description for the position of "Utility Operator: Wafer Fabrication Operations" stated that the job involved "vi- sual ...inspections," but **24 there was no mention of a binocular microscope. Id. at 436.

Lucent's Taylor argument, therefore, amounts to the following. Polini acted unreasonably in failing to in- form Lucent that she has binocular vision after correc- tion even though she did not know that she was not re- called solely because of her vision, she did not know that Dr. Capobianco believed that she was essentially blind in one eye even after correction, and she did not know that the only position for which she was considered required binocular vision. Contrary to Lucent's position, we con- clude that a reasonable fact finder could find that Polini acted reasonably under these circumstances.

VI.

For the reasons stated above, the District Court's grant of summary judgment in favor of Lucent is reversed, and the case is remanded.


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