Taylor v. Phoenixville Sch. Dist. ( 1999 )

Opinions of the United
1999 Decisions States Court of Appeals
for the Third Circuit
8-18-1999
Taylor v. Phoenixville Sch. Dist.
Precedential or Non-Precedential:
Docket 98-1273
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Filed August 18, 1999
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 98-1273
KATHERINE L. TAYLOR,
Appellant
v.
PHOENIXVILLE SCHOOL DISTRICT
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 96-cv-08470)
District Judge: Honorable J. Curtis Joyner
Argued December 17, 1998
Opinion filed April 5, 1999
Panel Rehearing granted on August 18, 1999, vacating
Opinion filed April 5, 1999
Before: SLOVITER and COWEN, Circuit Judges and
RODRIGUEZ,* District Judge
(Filed August 18, 1999)
_________________________________________________________________
* Honorable Joseph H. Rodriguez, U.S. District Judge for the District of
New Jersey, sitting by designation.
Joseph A. Ryan, Esq. (Argued)
13 Paoli Court
Paoli, PA 19301
Counsel for Appellant
Michael I. Levin, Esq. (Argued)
Michael I. Levin & Associates
1800 Byberry Road
1402 Masons Mill Business Park
Huntington Valley, PA 19006
Counsel for Appellee
OPINION OF THE COURT
COWEN, Circuit Judge.
Katherine Taylor brought suit under the Americans with
Disabilities Act of 1990 (ADA), 42 U.S.C. S 12101 et seq.,
and the Pennsylvania Human Relations Act (PHRA), 43
Pa.Cons.Stat.Ann. S 951 et seq., alleging that her former
employer, the Phoenixville School District, failed to provide
her reasonable accommodations for her mental illness. The
District Court granted summary judgment for the school
district, reasoning that Taylor's mental illness, bipolar
disorder, or manic depression as it is sometimes called, did
not qualify as a disability under the ADA. Alternatively, the
District Court held that even if Taylor did have a disability,
the only accommodation she specifically requested, transfer
to another position, was not possible, and consequently,
she was not an otherwise qualified individual with a
disability.
In an opinion filed on April 5, 1999, we reversed the
District Court's order after we concluded that Taylor's
unmedicated condition demonstrated that she has a
disability; we also found that she raised genuine factual
disputes on whether the school district participated in good
faith in the interactive process required by the ADA. When
the school district sought rehearing, we held its petition
until the Supreme Court announced its decisions in two
2
then-pending cases addressing whether disabilities under
the ADA are judged with or without regard to mitigating
measures. The Supreme Court has now decided in Sutton v.
United Airlines, Inc., ___ U.S. ___, 119 S. Ct. 2139 (1999)
and Murphy v. United Parcel Service, ___ U.S. ___, 119 S. Ct.
2133 (1999) that whether a plaintiff has a disability under
42 U.S.C. S 12102(2)(A) must be evaluated taking into
account any mitigating measures the plaintiff uses.
Based on these decisions, we have granted panel
rehearing and vacated our prior opinion, which was
reported at 174 F.3d 142. Applying the new law, we
conclude that there are genuine factual disputes requiring
a trial on whether Taylor's bipolar disorder substantially
limits a major life activity while she is taking lithium.
Because Sutton and Murphy concerned only the issue of
when a plaintiff has a disability under the ADA, our
previous discussion of the interactive process is unaffected;
therefore, we have incorporated it unchanged in this
opinion.
I
Before she was terminated on October 28, 1994,
Katherine Taylor had worked for twenty years as the
principal's secretary at the East Pikeland Elementary
School in the Phoenixville School District. Prior to the fall
of 1993, Taylor had not received a single disciplinary notice
from any of the various principals she worked with over the
years, and when formal evaluations were instituted in the
1991-92 school year, she received high praise.
Trouble began after Taylor suffered the onset of bipolar
disorder in late August of 1993, regrettably during the first
full week that a new principal, Christine Menzel, assumed
her duties at East Pikeland. While Taylor was at work
during that week, she began acting strangely, alarming
Menzel and Linda Ferrara, the school district's
administrative assistant for personnel. Menzel and Ferrara
were so disturbed by Taylor's behavior that they doubted
her capacity to leave on a train by herself and had someone
at the school district contact her son, Mark Taylor. He soon
drove his mother to Coastal Plain Hospital, a psychiatric
3
institution in Rocky Mount, North Carolina, where she was
admitted as an in-patient on August 31, 1993.
Hospital records indicate that Taylor had become manic
and was increasingly agitated and psychotic. According to
the records, she hid herself at the train station, believing
that someone was after her, and tried to disguise herself by
covering her head with a scarf. On the car ride from
Pennsylvania to the hospital, she was delusional and
announced that the car was being escorted by state
troopers and helicopters. She also claimed that her son's
boss was after him and that there were many people on the
highway who were "firefighters" trying to protect her. The
hospital report noted that she did not have any insight into
the severity of her condition and believed she was being
admitted due to "acute stress." The school district's own
expert, Dr. Rieger, agreed that during Taylor's
hospitalization, she "clearly had paranoid delusions" and
was hyperactive and psychotic.
Taylor was treated by two psychiatrists at the hospital
who diagnosed her illness as bipolar disorder and treated
her with lithium carbonate and an antipsychotic drug,
Navane, when lithium alone was insufficient. Once her
symptoms were brought under control by the combination
of drugs, she was discharged on September 20, 1993, and
her care was taken over by Dr. Louise Sonnenberg, a
psychiatrist in Phoenixville, Pennsylvania. Since her
discharge from the hospital, Taylor has continued to take
lithium, see Dr. Sonnenberg, and receive the necessary,
periodic blood tests.1
_________________________________________________________________
1. One widely-used text explains that: "Because lithium has an extremely
narrow therapeutic range, blood levels of the drug must be closely
monitored. The occurrence and intensity of side effects are, in most
cases, directly related to plasma concentrations of lithium. . . . The
main
toxic effects involve the gastrointestinal tract, the kidneys, the
thyroid,
the cardiovascular system, the skin, and the nervous system." Robert M.
Julien, A Primer of Drug Action, 8th ed., W.H. Freeman & Co., at 229-30
(1998). The Physicians' Desk Reference, 53rd ed., Medical Economics
Co., at 2750 (1999) is in agreement: "Lithium toxicity is closely related
to serum lithium levels and can occur at doses close to therapeutic
levels." Both authorities state that when the amount of lithium in the
4
Taylor's son stated in an affidavit that during his
mother's leave of absence, he had numerous phone
conversations with Ferrara in which he explained that his
mother would be absent from work because she had been
diagnosed with bipolar disorder and required
hospitalization. Mark Taylor also asserted in his affidavit
that during a phone call on October 8, one week before his
mother resumed working, he told Ferrara that due to his
mother's bipolar disorder, she "would require
accommodations when she returned to work." The affidavit
adds that he provided Ferrara with the information he
received from Taylor's doctors "including diagnosis and
treatment information and medications." Coastal Plain
Hospital itself sent a letter to the school district on
September 13, 1993, identifying one of Taylor's physicians
and providing a phone number to address any additional
questions the school district might have.
According to Taylor, Ferrara did eventually contact one of
her treating physicians. Ferrara's own handwritten notes
show that she attempted to obtain copies of Taylor's
records from Coastal Plain Hospital and planned to speak
to at least one of Taylor's doctors. The school district had
other contact with her doctors because before Taylor was
permitted to return to work, the school district required her
to submit a note from Dr. Sonnenberg saying that Taylor
was no longer disabled. Even prior to Mark Taylor's October
8th phone call, Ferrara sent a letter to the school district's
superintendent, stating that:
Mrs. Taylor has been released from the Coastal Plain
Hospital in North Carolina and her son will be picking
_________________________________________________________________
blood is near and above the therapeutic range, side effects can include
nausea, vomiting, abdominal pain, slight tremor, lethargy, impaired
concentration, dizziness, slurred speech, ataxia, muscle weakness, and
nystagmus. Julien adds that memory problems and weight gain are also
frequent complaints with continued treatment. As plasma levels rise
higher, toxic effects include muscle rigidity, coma, renal failure,
cardiac
arrhythmias, and death. Blood levels can fluctuate for a variety of
reasons. For example, Julien notes that "when a patient lowers his or
her salt intake or loses excessive amounts of salt (such as through
sweating), lithium blood levels rise and intoxication may inadvertently
follow." Id. at 228.
5
her up this coming weekend to bring her back to
Pennsylvania. She will be receiving out-patient care in
Phoenixville through the Phoenixville Psychiatric
Associates. They will monitor her Blood Lithium[sic]
levels. It was stressed that she must maintain and
continue her medication. He felt, as well as the doctor,
that the first week should be easing her transition back
into the work place.
App. vol. I at 80.
A notation on the letter indicates that a copy was
forwarded to Menzel. She submitted an affidavit, however,
denying that she saw the memo and asserting that"I did
not learn the specifics of the Plaintiff's alleged condition
(i.e., bipolar disorder) until after reading a newspaper
article describing her filing of the current lawsuit." App. vol.
II at 2. Ferrara has also submitted an affidavit asserting
that "at no time was I or anyone else at the School District
aware of Plaintiff's alleged diagnosis of bipolar disorder or
the details or frequency of any treatments she may have
been receiving after returning from Coastal Plain until after
the current lawsuit was filed." App. vol. II at 50.
After Taylor provided the note from Dr. Sonnenberg, she
resumed work on October 15, 1993 although, as Ferrara's
letter indicated, Taylor was only authorized to work half
days for the first week. Prior to her hospitalization, Taylor
had received high praise for her performance. In June of
1993, about two months before her hospitalization, the
outgoing principal, Dr. Herron, wrote that Taylor"excels in
all aspects" of her job, was a "credit to our school," and "a
tribute to excellence." App. vol. I at 86. In a subsequent
letter of recommendation, Dr. Herron again praised her
performance without reservation:
As a secretary, Mrs. Taylor served me and the entire
school family exceeding[ly] well. . . . I felt comfortable in
leaving the building, sometimes for an extended
amount of time, because of Mrs. Taylor's skills. Indeed,
at such times, Mrs. Taylor carried on the full functions
of the school as if she herself was capable of running
the functions of the building without supervision, and,
indeed, in such cases, she was entirely capable of
doing so.
6
App. vol. I at 87.
Almost immediately upon Taylor's return to work,
Menzel, following Ferrara's advice, began documenting
errors Taylor committed. The errors were then compiled
into a bullet-format list; the list was presented to Taylor;
and soon thereafter Menzel and Ferrara would call her into
a disciplinary meeting and offer her a chance to rebut the
charges. A representative from Taylor's union also attended
although it is unclear to what extent the representative
participated.
Taylor's first disciplinary notice, dated November 9, 1993,
listed errors as early as October 19, 1993, only four days
after she returned to work and while she was still working
part time. Eight more disciplinary notices followed, dated
11/23/93, 12/9/93, 1/6/94, 2/1/94, 3/11/94, 4/22/94,
9/2/94, and 10/27/94, the last arriving shortly before she
was terminated. Over the course of the disciplinary
meetings, Taylor disputed some charges and tried to
explain others, but as 1994 wore on, Menzel documented
many errors that she did not contest, and the interpersonal
friction between Menzel and Taylor continued unabated.
Disciplinary notices during this period list problems such
as missed deadlines, mishandling of records, typing errors,
interpersonal conflicts, and undelivered messages.
Part of Taylor's complaint about her treatment is that
Menzel often did not speak to her informally and in-person
about problems as they arose. Instead, Taylor alleges that
Menzel documented every misstep, saved letters containing
typos, photographed her desk and trash can, as well as the
inside of the office refrigerator, and waited to confront her
with the evidence in the disciplinary meetings.
Taylor also objects that the school district made her job
more difficult upon her return from the hospital. First,
during her absence, Menzel instituted a number of changes
in the office: she introduced new office policies, created new
forms, relocated documents, rearranged furniture, threw
out Taylor's old filing system, and discardedfiles, including
some in Taylor's desk. Taylor claims that these changes
were disorienting and made it much more difficult to
accomplish tasks she could easily perform before the
7
hospitalization. Of course, Taylor's absence coincided with
the first weeks Menzel served as principal, and thus
changes were inevitable and part of Menzel's prerogative as
a new principal. The gravamen of Taylor's complaint,
however, focuses on the abrupt, seemingly hostile manner
in which the changes were made.
Compounding Taylor's difficulties, a new computer
system was introduced to keep track of student records and
other data. The school district points out that plans to
introduce the computers had been underway prior to her
hospitalization, and according to an affidavit submitted by
a school-district employee, Taylor had more difficulty than
the other secretaries at a training session conducted in
July of 1993. Taylor does not appear to dispute that the
school district was entitled to switch to computers; rather,
the thrust of her objection seems to be that the school
district raised another hurdle by the manner in which the
new system was introduced when she returned from her
hospitalization.
Taylor claims that her job was made more difficult in
another, more straightforward way: following her return,
her job description was changed, increasing the number of
her job responsibilities from 23 to 42. It is not clear from
the record when these changes were made, how substantial
they were, or to what extent the new list simply enumerated
in greater detail duties she already performed, but reading
the evidence in the light most favorable to Taylor, there is
reason to believe that the new list added significant
responsibilities and made her return more difficult.
On September 2, 1994 Taylor received a notice placing
her on probation for 30 days and informing her that if her
performance did not improve, she would be terminated. She
was in fact discharged on October 28, 1994 although her
union representative subsequently negotiated with the
school district to allow her to "retire" and receive some
retirement benefits. Since her termination, Taylor has
applied at different times for unemployment benefits and
disability benefits.
II
The District Court had subject matter jurisdiction over
Taylor's ADA claim pursuant to 28 U.S.C. S 1331 and
8
supplemental jurisdiction over her state-law claim pursuant
to 28 U.S.C. S 1367. We have appellate jurisdiction
pursuant to 28 U.S.C. S 1291. Our review of a district
court's grant of summary judgment is plenary. Olson v.
General Electric Astrospace, 101 F.3d 947, 951 (3d Cir.
1996). In evaluating the school district's motion for
summary judgment, we must determine whether there are
any genuine disputes of material fact, and if not, then
viewing the evidence in the light most favorable to the
plaintiff, we must decide whether the school district was
entitled to judgment as a matter of law. See Fed.R.Civ.P.
56; Celotex Corporation v. Catrett, 477 U.S. 317, 322-23,
106 S. Ct. 2548, 2552-53 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 2510-11
(1986).
III
A. Basic statutory framework
Under the ADA, employers are prohibited from
discriminating "against a qualified individual with a
disability because of the disability of such individual in
regard to job application procedures, the hiring,
advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions,
and privileges of employment." 42 U.S.C. S 12112(a). A
"qualified individual with a disability" is defined by the ADA
as a person "with a disability who, with or without
reasonable accommodation, can perform the essential
functions of the employment position that such individual
holds or desires." 42 U.S.C. S 12111(8). A"disability" is
defined as: "(A) a physical or mental impairment that
substantially limits one or more of the major life activities
of [an] individual; (B) a record of such impairment; or (C)
being regarded as having such an impairment." 42 U.S.C.
S 12102(2).
In view of the foregoing definitions, we have held that in
order for a plaintiff to establish a prima facie case of
discrimination under the ADA, the plaintiff must show: "(1)
he is a disabled person within the meaning of the ADA; (2)
he is otherwise qualified to perform the essential functions
9
of the job, with or without reasonable accommodations by
the employer; and (3) he has suffered an otherwise adverse
employment decision as a result of discrimination." Gaul v.
Lucent Technologies, 134 F.3d 576, 580 (3d Cir. 1998)
(citing Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996)).
Discrimination under the ADA encompasses not only
adverse actions motivated by prejudice and fear of
disabilities, but also includes failing to make reasonable
accommodations for a plaintiff's disabilities. The ADA
specifies that an employer discriminates against a qualified
individual with a disability when the employer does "not
mak[e] reasonable accommodations to the known physical
or mental limitations of the individual unless the[employer]
can demonstrate that the accommodation would impose an
undue hardship on the operation of the business of the
[employer]." 42 U.S.C. S 12112(b)(5)(A).
Before turning to the first issue, whether Taylor has a
disability under the ADA, we mention that we will only
discuss Taylor's ADA claim because our analysis of an ADA
claim applies equally to a PHRA claim. Kelly v. Drexel
University, 94 F.3d 102, 105 (3d Cir. 1996).
B. Does Taylor have a disability under the ADA?
According to the statutory language quoted above, Taylor
can establish that she has a disability if she has a mental
impairment that substantially limits a major life activity,
has a record of such an impairment, or is regarded as
having such an impairment. 42 U.S.C. S 12102(2). Taylor
argues that she can satisfy each of these standards, but
because we conclude that she raises genuine factual
disputes about whether her bipolar disorder substantially
limits a major life activity, we need not reach her
arguments on the second and third definitions of a disability.2
_________________________________________________________________
2. The parties' briefing on appeal has focused heavily on the first
standard -- does Taylor have an impairment that substantially limits a
major life activity? What discussion there was of the second and third
standards for having a disability did not address whether a plaintiff who
relies exclusively on either the "regarded as" standard or the "record of
a substantially limiting impairment" standard is legally entitled to
reasonable accommodations.
10
No one disputes that bipolar disorder counts as a mental
impairment under the ADA; the contested issue is whether
Taylor's bipolar disorder substantially limits a major life
activity. In determining whether a plaintiff's impairment
substantially limits a major life activity, the Supreme Court
has stressed that courts should "determine the existence of
disabilities on a case-by-case basis." Albertsons, Inc. v.
Kirkingburg, ___ U.S. ___, 119 S. Ct. 2162, 2169 (1999). To
make that individualized assessment, we must begin by
identifying the specific life activity or life activities that
Taylor says her disorder affected and then evaluate whether
her condition "substantially limits" those life activities.
When Taylor relied upon our prior holding that
disabilities are judged in their untreated state, she
contended that while she was hospitalized, her bipolar
disorder affected a number of her major life activities, such
as the ability to think and care for herself. Following the
decisions in Sutton and Murphy, which require courts to
evaluate disabilities in their treated condition, Taylor
submitted supplemental briefing that shifted the emphasis
to her ability to think.
We accept that thinking is a major life activity. We have
previously observed that "[t]he ADA does not define `major
life activities,' " Kelly, 94 F.3d at 105 (citation omitted), but
despite the comparative lack of guidance in the statute, we
conclude that it is reasonable to include thinking as a
_________________________________________________________________
We have previously identified, without deciding, the issue of whether
a "regarded as" plaintiff is entitled to accommodations. See Taylor v.
Pathmark Stores, Inc., 177 F.3d 180, 195-96 (3d Cir. 1999); Deane v.
Pocono Medical Center, 142 F.3d 138, 140-41 (3d Cir. 1998)(en banc).
Although those cases addressed the "regarded as" standard, the "record
of an impairment" standard may raise similar considerations.
We need not resolve these difficult issues in our present decision.
Given that we have other grounds for reversal, intervening law has
affected the "regarded as" standard, and important issues were left
unaddressed by the parties, we will allow the parties to pursue on
remand whether Taylor is regarded as disabled or has a record of a
substantially limiting impairment and, if so, whether she would be
entitled to reasonable accommodations under either of those standards.
11
major life activity. We hardly need to point out that
thinking is inescapably central to anyone's life. Perhaps the
activity is rather broad, but given the difficulty of specifying
the different constituents of thinking or otherwise
narrowing this central activity (especially when discussing
the effects of psychosis or its subclinical manifestations),
we will not try to constrict Taylor's arguments about how
her condition affects her ability to think. We think that
most objections about the broadness of thinking as a life
activity can be captured in the analysis of when the activity
is substantially limited.
The Supreme Court has said, "The ADA does not define
`substantially limits,' but `substantially' suggests
`considerable' or `specified to a large degree.' " Sutton, 119
S. Ct. at 2150. But while substantial limitations should be
considerable, they also should not be equated with"utter
inabilities." Kirkingburg, 119 S. Ct. at 2168 (quoting Bragdon
v. Abbott, 524 U.S. 624, 641, 118 S. Ct. 2196 (1998)).
The EEOC's regulations define "substantially limits" as
follows: "(i) Unable to perform a major life activity that the
average person in the general population can perform; or (ii)
Significantly restricted as to the condition, manner or
duration under which an individual can perform a
particular major life activity as compared to the condition,
manner, or duration under which the average person in the
general population can perform that same major life
activity." 29 C.F.R. S 1630.2(j)(1). The regulations include
the following factors for evaluating when someone is
substantially limited in a major life activity:"(1) The nature
and severity of the impairment; (ii) The duration or
expected duration of the impairment; and (iii) The
permanent or long term impact, or the expected permanent
or long term impact of or resulting from the impairment."
29 C.F.R. S 1630.2(j)(2).
The Supreme Court left unresolved in Sutton what
deference, if any, these regulations are due. The Court
stated that even though the EEOC is charged with issuing
regulations for the employment provisions under Title I of
the ADA, "[n]o agency, however, has been given authority to
issue regulations implementing the generally applicable
provisions of the ADA, see SS 12101-12102, which fall
12
outside Titles I-V." Sutton, 119 S. Ct. at 2145. The Court
concluded that it did not have to resolve the issue of
deference because the parties in Sutton did not contest the
validity of the regulations, including 29 C.F.R.S 1630.2(j),
that interpret the generally applicable provisions. Id.
Because we have previously applied 29 C.F.R. S 1630.2(j),
see, e.g., Kelly, 94 F.3d at 105, we will follow it here as
well.
When Taylor had to be confined to a hospital because she
was psychotic, increasingly agitated, and gripped by
delusions, the limitations on her ability to think were
severe: She suffered paranoid delusions that people were
trying to kill her, inducing her to disguise herself at the
train station. During the car ride to the hospital, she
thought her son's life was in danger, believed that the
highway patrol was escorting her, and thought the highway
was filled with "firefighters" there to protect her. Unable to
recognize that these beliefs were baseless, she explained at
the time of her admission that she was there for"acute
stress."
Both the school district's expert and Taylor's treating
physician agreed that Taylor has bipolar disorder and that
the condition is chronic. Dr. Rieger, the school district's
expert, added, "There is no doubt in my mind that Ms.
Taylor experienced a biologic psychiatric illness in which
genetic factors play a role. These illnesses can appear even
fairly late in life regardless of life events and stressors. . ."
App. vol. I at 157. Dr. Sonnenberg, Taylor's treating
physician, confirmed that Taylor has an ongoing condition
that requires her to stay on lithium,3 and according to Dr.
_________________________________________________________________
3. The District Court evidently refused to consider Dr. Sonnenberg's
opinion because the Court said, citing Gaul v. AT&T, Inc., 955 F. Supp.
346 (D.N.J. 1997), Taylor could not rely on the opinion of her own
treating physician. But Gaul stated that"[i]t is well settled that
treating
physicians may testify as to any subject relevant to the evaluation and
treatment of their patients." Id. at 349. At issue in Gaul was whether
testimony by the plaintiff's treating physician satisfied the New Jersey
Supreme Court's holding that "expert medical testimony is required to
establish the fact of the employee's [handicap]." Id. (quoting Clowes v.
Terminex International, Inc., 109 N.J. 575, 597 (1988)). Just as the
District Court in Gaul deemed admissible the opinion of a plaintiff's
treating physician, we hold that a plaintiff in an ADA case can rely on
the testimony of his or her treating physician to demonstrate that the
plaintiff has a disability.
13
Rieger's report, Taylor has continued to take 300 mgs. of
lithium twice a day. In short, Taylor's impairment is not
temporary,4 and it is clear that at the time of her
hospitalization, her impairment was substantially limiting.
But the central question, in light of Sutton and Murphy, is
whether Taylor's continuing impairment remained a
"disability" under the ADA by imposing substantial
limitations even while treated. Specifically, Taylor must
show that she was substantially limited during the year
following her hospitalization, the time span when she says
that she was denied reasonable accommodations.
Taylor maintains that even though lithium has improved
her condition and has reduced the risk of full-blown
psychotic episodes, the drug has not perfectly controlled
her symptoms, leaving her still substantially limited in her
ability to think. She argues that Dr. Sonnenberg's notes
indicated that she continued to suffer symptoms of her
disorder, including paranoia. On November 9, 1994, a
couple of months after Taylor started taking lithium, Dr.
Sonnenberg wrote a short note to the school district,
explaining that Taylor was temporarily unable to work.
Taylor's claims of uncontrolled, ongoing symptoms are
corroborated by a number of other sources as well. Lithium
has a very narrow therapeutic range, and blood levels of the
drug can fluctuate for a variety of reasons. See supra, at
n.1. Throughout the 1993-94 school year following her
hospitalization, she experienced enough difficulty that she
saw Dr. Sonnenberg twenty-five times even though Taylor,
who earned a secretary's salary, cares for a disabled child,
and is divorced, had to pay the $120 fee out of pocket and
was reimbursed only half the cost by her insurance. One
can infer that she would not have undertaken such expense
without experiencing serious difficulty. Taylor also points
out that prior to her hospitalization, she had received high
praise for her work performance, but after the onset of her
illness, she encountered a number of problems, as the
school district's records document. Therapeutic levels of
_________________________________________________________________
4. See, e.g., Diagnostic and Statistical Manual of Mental Disorders, 4th
Ed., American Psychiatric Association, at 353 (1994); Frederick Goodwin
and Kay Redfield Jamison, Manic-Depressive Illness, Oxford University
Press, ch. 23 (1990); Julien, supra, n.1 at 232.
14
lithium can cause a number of side effects. See supra, at
n.1. Some of these effects, like the nausea Taylor
complained of, may bear indirectly on the ability to think,
while other side effects, such as impaired concentration
and memory problems, bear directly on thinking. Taylor's
problems at work may have been related to these drug side
effects, and the Supreme Court has noted that drug side
effects can be important in evaluating whether someone is
disabled. Sutton, 119 S. Ct. at 2147.
Given our prior holding in Matczak v. Frankford Candy &
Chocolate Co., 136 F.3d 933 (3d Cir. 1997), Taylor not
surprisingly focused on her untreated condition when she
accumulated evidence to demonstrate that she had a
disability, and as a consequence, the record is not as fully
developed as it might be. Nevertheless, we believe that she
has presented sufficient evidence to require a trial on
whether she continued to be substantially limited even
while receiving treatment.
Although Taylor clearly was disabled at the time she was
hospitalized, she need not prove that she continued to
experience symptoms of that magnitude: paranoia and
distorted mood can have a "substantial" or"considerable"
impact on Taylor's thinking well before they force
hospitalization. Substantial limitations need not rise to the
level of the "utter inabilities" Taylor experienced at the time
of her hospitalization. When we consider the nature and
severity of the impairment, its duration, and its expected
long-term impact, see 29 C.F.R. S 1630.2(j)(2), we find
evidence that Taylor has had to contend with a serious,
very much ongoing condition. Following the initial severe
episode, she again had to leave work just a few months
later; she sought treatment twenty-five times throughout
the year; and every day throughout this period she took
medication requiring careful monitoring. That she may not
have experienced problems every day does not defeat her
claim. Chronic, episodic conditions can easily limit how well
a person performs an activity as compared to the rest of the
population: repeated flare-ups of poor health can have a
cumulative weight that wears down a person's resolve and
continually breaks apart longer-term projects.
15
The school district argues vehemently that Taylor is not
disabled and points to the report of its expert. After
conducting an office visit with Taylor on June 24, 1997, Dr.
Rieger concluded: "When I examined Ms. Taylor[,] she had
a normal mental state. Her chronic biological psychiatric
illness was obviously well controlled by medication. If she
continues to take her medications as instructed[,] she will
be able to work. She is now not at all disabled from a
psychiatric point of view." App. vol. I at 159.
We do not think Dr. Rieger's report is sufficient to grant
summary judgment in the school district's favor. Taylor has
presented evidence that she is disabled, and on summary
judgment we read the evidence in the light most favorable
to the nonmoving party and resolve genuine factual
disputes in favor of the nonmoving party. See Fed.R.Civ.P.
56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50,
106 S. Ct. 2505, 2510-11 (1986). Dr. Rieger's report also
has a number of problems that could lead a reasonable jury
to reject it. The passage quoted above, for example, says
that Taylor is not presently, on June 24, 1997, exhibiting
the symptoms of her disorder. That statement does not
resolve what Taylor's condition was like between the fall of
1993 and the fall of 1994. Taylor may have gained better
control over her condition by the time roughly four years
had passed from the onset of her disorder.
Another shortcoming of Dr. Rieger's report is that it is
based on one office visit. A jury could question whether he
relied on too slender a base of experience observing Taylor's
condition. It is true that the doctor was able to review a
number of documents, including Taylor's disciplinary
reports from the school district and the reports from
Coastal Plain Hospital, but these reports may not have
given a very full or accurate picture of the range of
symptoms Taylor experienced while on medication.
We think it is significant that Taylor had difficulty
recognizing and expressing the symptoms of her condition.
Not only did she believe at the time of her hospitalization
that she was merely suffering from "acute stress," but this
difficulty seemed to continue. Dr. Rieger's own report
reveals this problem. When he asked Taylor to describe the
16
events leading up to her hospitalization, she related that
Ferrara told her "she needed some rest." App. vol. I at 150.
Upon my question Ms. Taylor revealed what prompted
this recommendation: "I was telling [Ferrara] about a
person who was employed by the district. I remarked
that the person was dead -- strike that -- was injured.
I had passed an ambulance. That person was on my
mind. It was a strange remark that wasn't true." Upon
my question Ms. Taylor agreed that in retrospect what
she just told me sounded like a delusion. She
immediately continued her story: "I had planned to
take time off. I had Amtrak tickets to see my mother in
Rocky Mount, North Carolina. I didn't get there. The
train was canceled because of a hurricane. My son
took me there by car. My brother made arrangements
for me to go to the Coastal Plains Hospital." Upon my
question she confirmed that the entire trip was
planned so that she could go to a psychiatric hospital
near her relatives. She could not recall what specific
delusions she voiced upon entering the hospital. She
recalled that she gave the doctors lots of information,
that she was "very talkative" although very tired.
[Elsewhere the report quotes Taylor as saying"some
nights I got only 3 to 4 hours of sleep."] Upon my
question she admitted that she may have been
euphoric.
Id. One would expect a plaintiff to inflate the severity of her
condition when talking to opposing counsel's expert. Taylor
instead made her hospitalization sound like a simple trip to
visit her mother and had obvious difficulty conveying the
extent of her illness. We should not insist that all plaintiffs
with bipolar disorder must have the self-awareness and
expressive powers of a Robert Lowell (who had the illness)
before we allow that their condition is substantially
limiting.
After reviewing the school district's records, Dr. Rieger
did express the opinion that Taylor's "misconduct was
solely due to her basic personality," and "[w]hatever
subjective difficulties she experienced during her last year
of employment were not due to her mental illness but due
to her peculiar personality traits. . . ." Id. at 158 and 156. In
17
a similar vein, he asserted that people with bipolar disorder
can "fulfill all their work duties to the full satisfaction of
their superiors without engaging in misconduct and
without requiring any accommodations." Id. at 159.
A reasonable jury could question the doctor's conclusion
that all of Taylor's problems at work were due solely to her
"peculiar personality traits" and not to her mental illness.
Taylor had performed very well at work prior to the onset of
her illness; only after she became psychotic and was
hospitalized did problems appear. Thus, a reasonable jury
could find it surprising that the peculiar personality traits
only manifested themselves after she became ill. It also is
not clear that the doctor was in a position to judge when
Taylor had engaged in "misconduct" at work; a reasonable
jury could question any uncritical reliance on the school
district's own reports about Taylor.
Another reason that the school district denies that Taylor
is disabled is that before the school district allowed Taylor
to return to her job, she was required to submit a note from
her doctor saying that she was able to work. Dr.
Sonnenberg responded to this requirement by sending a
one sentence message saying that Taylor "is able to return
to work and is not disabled." Supp. App. at 1. The school
district argues that since the doctor said that Taylor was
"not disabled," Taylor must have been symptom free.
But the doctor's remark appears to be simply another
way of saying that Taylor was capable of working. It is
hardly conclusive proof that Taylor was not substantially
limited. That Dr. Sonnenberg used "disabled" as the
equivalent of "able to work" is supported by her earlier note
in November that said Taylor "is temporarily disabled and
not able to work at this time." App. vol. I at 77. While the
doctor's use of the term "disabled" is not unusual,
especially in the context of disability insurance, it is not an
accurate definition for the purposes of the ADA. To say that
no one is disabled under the ADA unless the person is
unable to work would render all the provisions in the ADA
governing reasonable accommodations at work entirely
empty of meaning. If there has ever been a legal term of art,
"disabled" certainly qualifies. And the Supreme Court
recently rejected glib estoppel arguments that turn on the
18
different meanings carried by the term "disability."
Cleveland v. Policy Management Systems Corp., ___ U.S.
___, 119 S. Ct. 1597 (1999).
C. Reasonable accommodations
Having concluded that there are genuine factual disputes
about whether Taylor has a disability under 42 U.S.C.
S 12102(2)(A), we must consider whether the school district
failed to provide reasonable accommodations. On this issue,
we find that the District Court applied the wrong legal
standards and that under the correct standard, disputes of
material fact remain, requiring remand.
As stated above, an employer commits unlawful
discrimination under the ADA if the employer does"not
mak[e] reasonable accommodations to the known physical
or mental limitations of an otherwise qualified individual
with a disability who is an applicant or employee, unless
[the employer] can demonstrate that the accommodation
would impose an undue hardship on the operation of the
business of [the employer]." 42 U.S.C. S 12112(b)(5)(A).
In evaluating whether a plaintiff is a "qualified individual
with a disability," we have held that a plaintiff must
"satisf[y] the prerequisites for the position, such as
possessing the appropriate educational background,
employment experience, skills, licenses, etc." and, the
plaintiff must be able to "perform the essential functions of
the position held or desired, with or without reasonable
accommodations." Gaul, 134 F.3d at 580 (quoting 29 C.F.R.
Pt. 1630, App. S 1630.2(m) at 351). Because Taylor held her
position as secretary to the principal for many years,
receiving high praise, there is no serious dispute that she
satisfies the prerequisites for the position. The critical issue
is whether Taylor could, with reasonable accommodations,
perform the essential functions of her job following her
return from her hospitalization.
The Interactive Process
The ADA's regulations state that: "To determine the
appropriate reasonable accommodation it may be necessary
for the [employer] to initiate an informal, interactive process
19
with the [employee] in need of accommodation. This process
should identify the precise limitations resulting from the
disability and the potential reasonable accommodations
that could overcome those limitations." 29 C.F.R.
S 1630.2(o)(3). Similarly, the EEOC's interpretive guidelines
provide that: "Once a qualified individual with a disability
has requested provision of a reasonable accommodation,
the employer must make a reasonable effort to determine
the appropriate accommodation. The appropriate
reasonable accommodation is best determined through a
flexible, interactive process that involves both the employer
and the [employee] with a disability." 29 C.F.R. Pt. 1630,
App. S 1630.9 at 359.
We have previously recognized both this regulation and
the EEOC's interpretive guideline and applied them to a
claim brought under the Rehabilitation Act, 29 U.S.C.
S 701, et seq. Mengine v. Runyon, 114 F.3d 415, 419-20 (3d
Cir. 1997); see also Deane v. Pocono Medical Center, 142
F.3d 138, 149 (3d Cir. 1998)(en banc).5 Based on the
regulation and interpretive guidelines, we held in Mengine
that "both parties have a duty to assist in the search for
appropriate reasonable accommodation and to act in good
faith." Id. We noted that other circuits have taken this view.
See, e.g., Beck v. University of Wisconsin Bd. of Regents, 75
F.3d 1130, 1135 (7th Cir. 1996)("A party that obstructs or
delays the interactive process is not acting in good faith. A
party that fails to communicate, by way of initiation or
response, may also be acting in bad faith."); Taylor v.
Principal Financial Group, Inc., 93 F.3d 155, 165 (5th Cir.
1996)(The "employee's initial request for an
accommodation... triggers the employer's obligation to
participate in the interactive process...").
In Bultemeyer v. Fort Wayne Community Schools , 100
F.3d 1281 (7th Cir. 1996) an employee diagnosed with
paranoid schizophrenia and bipolar disorder sought to
_________________________________________________________________
5. While Mengine involved a claim under the Rehabilitation Act, the
regulation and interpretive guidelines applied in the case were from the
ADA. Furthermore, according to 42 U.S.C. S 12201(a), the ADA should
not be construed to apply a lesser standard than the Rehabilitation Act.
See also Bragdon v. Abbott, 118 S. Ct. 2196, 2202 (1998).
20
return from an extended disability leave to his job as a
custodian. His employer informed him that he would be
reassigned to the largest school operated by Fort Wayne
Community Schools, and added that he would not receive
any special accommodation. The employer then instructed
the plaintiff to take a physical and report to work or else he
would be terminated. After touring the new school with the
custodial foreman, the plaintiff told his employer that he
did not think he was equal to the task but said he was not
resigning. The plaintiff subsequently failed to take the
physical or report to work although he did have his
psychiatrist send a letter to the employer which stated that
due to the plaintiff's illness, it would be in the plaintiff's
best interest to work at a less stressful school. The
employer never responded and terminated the plaintiff. The
Seventh Circuit, reversing summary judgment for the
employer, concluded that there was a genuine dispute as to
whether the employer engaged in the interactive process of
seeking accommodations.
We agree with the Seventh Circuit which held that:
An employee's request for reasonable accommodation
requires a great deal of communication between the
employee and employer... [B]oth parties bear
responsibility for determining what accommodation is
necessary... `[N]either party should be able to cause a
breakdown in the process for the purpose of either
avoiding or inflicting liability. Rather, courts should
look for signs of failure to participate in good faith or
failure by one of the parties to help the other party
determine what specific accommodations are
necessary. A party that obstructs or delays the
interactive process is not acting in good faith. A party
that fails to communicate, by way of initiation or
response, may also be acting in bad faith. In essence,
courts should attempt to isolate the cause of the
breakdown and then assign responsibility.'
Bultemeyer, 100 F.3d at 1285 (quoting Beck, 75 F.3d at
1135).
Our analysis of the interactive process in the present
case is divided into two steps: first, we will clarify what
21
notice must be given to the employer to trigger the
employer's obligations under the interactive process, and
second, we will elaborate on the employee's and the
employer's duties once the interactive process comes into
play.
1. Notice of the disability and request for accommodation
The first question we must address is who must make
the request for accommodation and what form that request
must take. The EEOC compliance manual provides that"a
family member, friend, health professional, or other
representative may request a reasonable accommodation on
behalf of an individual with a disability."2 EEOC
Compliance Manual, Enforcement Guidance for Psychiatric
Disabilities, at 20-21. Likewise, in Bultemeyer the Seventh
Circuit allowed that an employee's psychiatrist could make
a request for accommodations on behalf of an employee.
Bultemeyer, 100 F.3d at 1286. In our case, therefore,
Taylor's son could make the initial request for
accommodations.
The EEOC's manual further provides that "[r]equests for
reasonable accommodations do not need to be in writing,"
2 EEOC Compliance Manual, Enforcement Guidance for
Psychiatric Disabilities, at 21, and "[t]o request
accommodation, an individual may use `plain English' and
need not mention the ADA or use the phrase `reasonable
accommodation.' " Id. at 19. The Seventh Circuit said that
"properly participating in the interactive process means
that an employer cannot expect an employee to read its
mind and know that he or she must specifically say`I want
reasonable accommodation,' particularly when the
employee has a mental illness." Bultemeyer, 100 F.3d at
1286.
The EEOC's manual makes clear, however, that while the
notice does not have to be in writing, be made by the
employee, or formally invoke the magic words "reasonable
accommodation," the notice nonetheless must make clear
that the employee wants assistance for his or her disability.
In other words, the employer must know of both the
disability and the employee's desire for accommodations for
that disability.
22
These rules are consistent with the statute which says
that the employer must make reasonable accommodations
to an employee's "known" disability. 42 U.S.C.
S 12112(b)(5)(A). What matters under the ADA are not
formalisms about the manner of the request, but whether
the employee or a representative for the employee provides
the employer with enough information that, under the
circumstances, the employer can be fairly said to know of
both the disability and desire for an accommodation.
What information the employee's initial notice must
include depends on what the employer knows. In Taylor v.
Principal Financial Group, Inc., 93 F.3d 155 (5th Cir. 1996),
an employee whose job performance had fallen off
mentioned to his employer that he was diagnosed with
bipolar disorder. Nothing the employee had done suggested
the nature of his illness. When the employer, who said he
did not know about the illness, asked the employee if he
was okay, the employee responded that he was. The
employee never offered further information about his
disorder and, even more significantly, could not confirm
that he ever explicitly asked for an accommodation or help
of any sort. Under these circumstances, the employee has
not given sufficient notice to trigger the employer's duty to
engage in the interactive process. Cf. Crandall v. Paralyzed
Veterans of America, 146 F.3d 894 (D.C. Cir.
1998)(Employee with bipolar disorder could not state a
claim under the Rehabilitation Act when he never told his
employer of his mental illness and never requested
accommodations.). Employers cannot assume employees
are disabled and need accommodations.
Our case differs markedly. It is undisputed that Taylor
became psychotic at work, that the school district knew she
was hospitalized immediately thereafter, and that Coastal
Plain Hospital contacted the school district by letter about
Taylor's hospitalization and provided a phone number to
answer questions. It is also undisputed that Ferrara wrote
a note saying she planned to contact Taylor's doctors and
that she wrote a letter to the superintendent, stating that
"Phoenixville Psychiatric Associates... will monitor [Taylor's]
Blood Lithium [sic] levels. It was stressed that she must
maintain and continue her medication." The school district
23
also does not deny that it required Taylor to submit a note
from Dr. Sonnenberg, further demonstrating that the school
district knew how to get information from Taylor when it
deemed it necessary.
Based on this evidence, the school district had more than
enough information to put it on notice that Taylor might
have a disability, and therefore, in order to trigger the
school district's obligation to participate in the interactive
process, Taylor or her representative only needed to request
accommodation. In light of the undisputed background
information putting the school district on notice that Taylor
had recently developed a serious disability, we think it
would be especially inappropriate to insist that Taylor's son
must have specifically invoked the ADA or used the words
"reasonable accommodation" when he requested
accommodations. Under the circumstances, it hardly
should have come as a surprise that Taylor would want
some accommodations, particularly as the successive
disciplinary meetings began to mount for an employee who
had previously performed very well. We would add that the
school district had ample time to seek legal advice on its
obligation to provide reasonable accommodations.
Regardless, Taylor's son has submitted an affidavit saying
that not only did he provide diagnostic and treatment
information to the school district, he also asked for
"accommodations" for his mother.
Menzel's affidavit asserts that she did not "learn the
specifics" of Taylor's disorder until after this litigation was
started. Ferrara's affidavit states, "To my knowledge, at no
time was I or anyone else at the School District aware of
Plaintiff's alleged diagnosis of bipolar disorder or the details
or frequency of any treatments she may have been receiving
after returning from Coastal Plain until after the current
lawsuit was filed."
We want to make clear that the school district's duty to
participate in the interactive process is triggered if Taylor
notified either Menzel who was Taylor's supervisor and East
Pikeland's principal, or Ferrara, the school district's
administrative assistant for personnel. Thus, if Taylor's son
requested accommodations from Ferrara, then the school
district would have a duty to participate in the interactive
24
process regardless of how much Menzel knew about
Taylor's disorder.
We would add that to trigger the school district's duty to
participate in the interactive process, it is not essential that
Ferrara or Taylor knew the specific name of Taylor's
condition although Taylor's son has created a factual
dispute on this issue by saying that he provided Ferrara
with diagnostic and treatment information. Suffice it to say
that there is no genuine dispute that the school district was
aware that Taylor exhibited serious psychiatric problems
and those problems were severe enough to require her to be
hospitalized for roughly three weeks. Following Taylor's
discharge from the hospital, the school district knew that
Phoenixville Psychiatric Associates monitored the lithium
Taylor was taking and that Taylor continued to see a
psychiatrist. Taylor also provided the school district with a
number of avenues for obtaining further information from
her doctors, avenues that the school district used. If there
was any further information that the school district felt it
needed to justify an accommodation, it was incumbent on
the school district to ask for it. As the Seventh Circuit has
said, "The employer has to meet the employee half-way."
Bultemeyer, 100 F.3d at 1285. To raise the bar for
triggering the interactive process any further would
essentially nullify the process.
Once the employer knows of the disability and the
employee's desire for accommodations, it makes sense to
place the burden on the employer to request additional
information that the employer believes it needs. Disabled
employees, especially those with psychiatric disabilities,
may have good reasons for not wanting to reveal
unnecessarily every detail of their medical records because
much of the information may be irrelevant to identifying
and justifying accommodations, could be embarrassing,
and might actually exacerbate workplace prejudice. An
employer does not need to know the intimate details of a
bipolar employee's marital life, for example, in order to
identify or justify an accommodation such as a temporary
transfer to a less demanding position.
Another reason for placing some burden on the employer
is that, as the Seventh Circuit recognized in Bultemeyer, an
25
employee with a mental illness may have difficulty
effectively relaying medical information about his or her
condition, particularly when the symptoms are flaring and
reasonable accommodations are needed. Id. See also Criado
v. IBM Corp., 145 F.3d 437, 444 (1st Cir. 1998)(When an
employer terminated an employee with a mental illness due
to an alleged miscommunication over a leave of absence, a
jury could find that the employer failed to live up to its
responsibility to help find accommodations.). It is worth
noting that Taylor's hospital records specifically stated that
at the time of her hospitalization, she "lacked insight" into
her condition and believed her only problem was"acute
stress."
2. Application of the interactive process following adequate
notice
Viewing the evidence in the light most favorable to Taylor,
we believe that a reasonable jury could conclude, based on
the evidence presented thus far, that the school district did
not meet its burden under the interactive process. Taylor's
version of the case can be stated succinctly as follows: After
Menzel and Ferrara watched Taylor become manic and
require hospitalization, the two decided that Menzel should
begin documenting Taylor's every error within days of her
return, despite the fact that Taylor's son requested
accommodations, informed them about Taylor's condition,
and provided them with the means to obtain more
information if needed. Notwithstanding Taylor's previous
twenty years of strong performance and the school district's
clear notice of Taylor's disability and desire for
accommodations, the school district offered no
accommodations or assistance in finding them, made
Taylor's job more difficult, and simply sat back and
continued to document her failures. A reasonable jury
could conclude that the school district did not engage in an
interactive process of seeking accommodations and is
responsible for the breakdown in the process.
The school district emphasizes that the only
accommodation Taylor specifically requested was transfer
to another position, which Taylor later conceded was not
feasible. We do not think that it is fatal to Taylor's claim
that her son did not request a specific accommodation or
26
that Taylor's request in March of 1994 was for an
accommodation that she admitted was not possible. The
interactive process, as its name implies, requires the
employer to take some initiative. In Bultemeyer, the court
explained, "If the note [from the psychiatrist requesting
accommodation] was too ambiguous and [the employer] did
not know what Bultemeyer wanted, [the employer] easily
could have called [the psychiatrist] for a clarification."
Bultemeyer, 100 F.3d at 1285. The interactive process
would have little meaning if it was interpreted to allow
employers, in the face of a request for accommodation,
simply to sit back passively, offer nothing, and then, in
post-termination litigation, try to knock down every specific
accommodation as too burdensome. That's not the
proactive process intended: it does not help avoid litigation
by bringing the parties to a negotiated settlement, 6 and it
unfairly exploits the employee's comparative lack of
information about what accommodations the employer
might allow. In addition, in some cases courts may be
better positioned to judge whether the employer met with
the employee in good faith than to judge how burdensome
a particular accommodation really is.
The ADA's regulations make clear that the purpose of the
interactive process is to determine the appropriate
accommodations: "This process should identify the precise
limitations resulting from the disability and the potential
reasonable accommodations that could overcome those
limitations." 29 C.F.R. S 1630.2(o)(3). Therefore, it would
make little sense to insist that the employee must have
_________________________________________________________________
6. In Deane we emphasized the value of the interactive process for
avoiding litigation: "we take this opportunity to observe that this
protracted (and very much ongoing) litigation would likely have been
unnecessary had the parties taken seriously the precepts announced in
our opinion in Mengine." Deane 142 F.3d at 149 (citation omitted). We
would add that the interactive process can be thought of as a less
formal, less costly form of mediation. See 67 U.S.L.W. 2255 (noting the
value of mediated settlement in ADA cases). Mediated settlements, the
article explains, are cheaper than litigation, can help preserve
confidentiality, allow the employee to stay on the job, and avoid
monetary damages for an employer's initially hostile responses to
requests for accommodations. The interactive process achieves these
same goals even more effectively.
27
arrived at the end product of the interactive process before
the employer has a duty to participate in that process. The
EEOC's interpretive guidelines squarely place some of the
burden on the employer by stating that "the employer must
make a reasonable effort to determine the appropriate
accommodation." 29 C.F.R. Pt. 1630, App. S 1630.9 at 359.
As we explained in Mengine, the process must be
interactive because each party holds information the other
does not have or cannot easily obtain. We noted that
"employers will not always know what kind of work the
worker with the disability can do, and conversely, the
worker may not be aware of the range of available
employment opportunities, especially in a large company.
Thus, the interactive process may often lead to the
identification of a suitable position." Mengine, 114 F.3d at
420. More specifically, we explained that while an employee
who wants a transfer to another position ultimately has the
burden of showing that he or she can perform the essential
functions of an open position, the employee does not have
the burden of identifying open positions without the
employer's assistance. "In many cases, an employee will not
have the ability or resources to identify a vacant position
absent participation by the employer." Mengine, 114 F.3d
420.7 Taylor's concession that she knew of no other open
positions, therefore, should not necessarily be the end of
the matter if the school district made no effort to help
investigate.
When transfer is not sought, as was presumably the case
when Taylor's son first requested accommodations, the
employer likewise will often hold more information than the
employee about what adjustments are feasible in the
employee's current position. The Seventh Circuit pointed
out in Bultemeyer that: "When Bultemeyer worked at North
Side High School, a simple adjustment in his duties was
_________________________________________________________________
7. Our opinion in Gaul v. Lucent Technologies, Inc., 134 F.3d 576 (3d Cir.
1998) should be distinguished because there the employee's proposed
accommodation, a transfer whenever he decided he was stressed, was
unreasonable as a matter of law. If an employee insists on a single
accommodation that is unreasonable as a matter of law, then the
employee will be at fault for the breakdown in the interactive process.
28
enough of an accommodation to enable him to work there.
But this time, we do not know what might have happened,
because [the employer] was unwilling to engage in the
interactive process and accommodation him." Bultemeyer,
100 F.3d at 1285.
In short, an employer who has received proper notice
cannot escape its duty to engage in the interactive process
simply because the employee did not come forward with a
reasonable accommodation that would prevail in litigation.
Participation is the obligation of both parties, however, so
an employer cannot be faulted if after conferring with the
employee to find possible accommodations, the employee
then fails to supply information that the employer needs or
does not answer the employer's request for more detailed
proposals. And while a specific request may not always be
necessary to initiate the process, it certainly helps bolster
the employee's claim that the employer knew that the
employee wanted accommodations.
The interactive process does not dictate that any
particular concession must be made by the employer; nor
does the process remove the employee's burden of showing
that a particular accommodation rejected by the employer
would have made the employee qualified to perform the
job's essential functions. See Walton v. Mental Health
Association of Southeastern Pennsylvania, 168 F.3d 661,
670 (3d Cir. 1999). All the interactive process requires is
that employers make a good-faith effort to seek
accommodations.
Employers can show their good faith in a number of
ways, such as taking steps like the following: meet with the
employee who requests an accommodation, request
information about the condition and what limitations the
employee has, ask the employee what he or she specifically
wants, show some sign of having considered employee's
request, and offer and discuss available alternatives when
the request is too burdensome. These steps are consistent
with the recommendations in the EEOC's interpretive
guideline. See 29 C.F.R. Pt. 1630, App. S 1630.9 at 359-61.
We do not think this process is especially burdensome. As
we found in Mengine, the Postal Service engaged in good
faith in the interactive process when it exchanged a number
29
of letters with an employee in an effort to identify a vacant
position for reassignment and sent the employee multiple
job descriptions of vacant positions. Mengine, 114 F.3d at
421.8
The school district can be understood as arguing
implicitly that it did not have to participate in the
interactive process because there was no feasible
accommodation that would have made Taylor capable of
performing the essential functions of her job. In Mengine we
stated that "if reasonable accommodation is impossible,
nothing more than communication of this fact is required.
Nonetheless, if an employer fails to engage in the interactive
process, it may not discover a way in which the employee's
disability could have been reasonably accommodated,
thereby risking violation of the Rehabilitation Act." Mengine,
114 F.3d at 420-21. We explained that whether an
employer's duty to participate in the interactive process has
been discharged will often be a matter of "timing": i.e., the
employer will almost always have to participate in the
interactive process to some extent before it will be clear that
it is impossible to find an accommodation that would allow
the employee to perform the essential functions of a job.
Put differently, because employers have a duty to help
the disabled employee devise accommodations, an employer
who acts in bad faith in the interactive process will be liable
if the jury can reasonably conclude that the employee
would have been able to perform the job with
accommodations. In making that determination, the jury is
entitled to bear in mind that had the employer participated
in good faith, there may have been other, unmentioned
possible accommodations. On the other hand, as we
_________________________________________________________________
8. Employers may find it useful to take advantage of the Job
Accommodation Network although we do not in any way suggest that
employers are obliged to make use of this service. The EEOC compliance
manual explains that: "The Job Accommodation Network (JAN) provides
advice free-of-charge to employers and employees contemplating
reasonable accommodation. JAN is a service of the President's
Committee on Employment of People with Disabilities which, in turn, is
funded by the U.S. Department of Labor. JAN can be reached at 1-800-
ADA-WORK." EEOC Compliance Manual, Enforcement Guidance for
Psychiatric Disabilities, at 23 n.56.
30
explained in Mengine, "The ADA, as far as we are aware, is
not intended to punish employers for behaving callously if,
in fact, no accommodation for the employee's disability
could reasonably have been made." Mengine, 114 F.3d at
420 (quoting Willis v. Conopco, Inc., 108 F.3d 282, 285
(11th Cir. 1997)).
When an employee has evidence that the employer did
not act in good faith in the interactive process, however, we
will not readily decide on summary judgment that
accommodation was not possible and the employer's bad
faith could have no effect. To assume that accommodation
would fail regardless of the employer's bad faith would
effectively eliminate the requirement that employers must
participate in the interactive process. An employer who
acted in bad faith would be in essentially the same, if not
better, position than one who participated; that is, both
employers would be arguing that the employee failed to find
an accommodation making him or her able to perform the
essential function of the job. The less the employer
participated, the easier this would become, and as a result,
the requirement that employers participate in the
interactive process would be toothless. Thus, where there is
a genuine dispute about whether the employer acted in
good faith, summary judgment will typically be precluded.
Cf. Hendrick-Robinson v. Excel Corp., 154 F.3d 685 (7th Cir.
1998)(Refusing to grant an employer summary judgment
because it may not have participated in good faith in
finding accommodations); Baert v. Euclid Beverage, Ltd.,
149 F.3d 626 (7th Cir. 1998)(Refusing to grant an employer
summary judgment because disputes of fact remained
about which party caused the breakdown in the interactive
process).9 When the disability involved is one that is heavily
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9. The Ninth Circuit has expressed disagreement with our decision in
Mengine and concluded that employers are not obliged to participate in
the interactive process. See Barnett v. U.S. Air, Inc., 157 F.3d 744, 753
(9th Cir. 1998). The majority in Barnett worried that an employer could
be held liable for failing to engage in the interactive process even
though
the employee was successfully accommodated. We believe that where an
employer has successfully made reasonable accommodations, a court
can conclude as a matter of law that the employer did not act in bad
faith. The Barnett majority also objected that it was not clear when an
31
stigmatized in our society - as is true when the employee is
voluntarily or involuntarily committed to a mental
institution - courts should be especially wary on summary
judgment of underestimating how well an employee might
perform with accommodations or how much the employer's
bad faith may have hindered the process of finding
accommodations.
In Taylor's case we believe that there are genuine
disputes about the school district's good faith participation
in the interactive process, and assuming the school district
did act in bad faith, nothing the school district points to
demonstrates that it would be impossible to accommodate
Taylor. Prior to her hospitalization, Taylor performed her
job effectively for nearly two decades. But after becoming
disabled and seeking accommodations, she has presented
evidence that the school district made no response to her
request and instead increased the difficulty of her job.
Given the evidence Taylor presents of bad faith on the
school district's part, we will not decide on summary
judgment that it would have been fruitless for the school
district to make some modest and fairly obvious efforts to
accommodate.
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employer would incur process liability. Bad faith can, of course, take
many different forms, just as negligence can, precluding easy statement
of a general rule about when bad faith has occurred. However, we believe
that jurors should be able to distinguish between stonewalling and
assisting an employee in finding accommodations. The fact that there
may be some hard cases is hardly unique in law. The Barnett majority's
last objection was that 29 C.F.R. S 1630(o)(3) only states that it "may be
necessary" for the employer to engage in an interactive process. But the
EEOC's interpretive guidelines state that once an employee requests
accommodations, the employer "must make a reasonable effort to
determine the appropriate accommodation." 29 C.F.R. Pt. 1630, App.
S 1630.9 at 359. The guidelines continue that in some instances the
interactive process may not be necessary because it is clear to both
parties involved what accommodation will work. For example, the
guidelines explain that an employee in a wheelchair may want her desk
elevated with blocks so that her wheelchair will slide under. No
interactive process will be needed here. Id. at 360. The regulation uses
the phrase "may be necessary," in other words, because sometimes the
necessary accommodation is obvious. We have also recognized that the
process is not necessary in cases where accommodation is impossible.
32
In particular, the school district could have increased
Taylor's job responsibilities more slowly, given more time to
introduce the computer, or communicated less by formal,
written reprimands. The EEOC compliance manual for
psychiatric disorders provides that some adjustments in
supervisory methods can qualify as legitimate
accommodations.10 The ADA itself specifically provides that
reasonable accommodations can include "job restructuring,
part-time or modified work schedules, reassignment to a
vacant position, acquisition or modification of equipment or
devices, appropriate adjustment or modifications of
examinations, training materials or policies, the provision of
qualified readers or interpreters, and other similar
accommodations for individuals with disabilities." 42 U.S.C.
S 12111(9)(B).
The fact that Taylor's potential accommodations are
modest should not encourage us to dismiss Taylor's claim
on summary judgment on the theory that they would be
useless; that would have the bizarre implication that the
more demanding a plaintiff's accommodations were, the
more likely the plaintiff is to survive summary judgment.
Plaintiffs who wish to participate in good faith in the
interactive process are more likely to have scaled back their
demands and asked for modest accommodations. More
importantly, we think it is worth remembering that
sometimes comparatively modest accommodations can reap
large returns in how well a disabled employee performs.
_________________________________________________________________
10. The EEOC compliance manual states that: "Supervisors play a
central role in achieving effective reasonable accommodations for their
employees. In some circumstances, supervisors may be able to adjust
their methods as a reasonable accommodation by, for example,
communicating assignments, instructions, or training by the medium
that is most effective for a particular individual (e.g., in writing, in
conversation, or by electronic mail)." 2 EEOC Compliance Manual,
Enforcement Guidance for Psychiatric Disabilities, at 26. However, the
manual continues that "[r]easonable accommodation... does not require
lowering standards or removing essential functions of the job." Id. at 26
n.62. We would hasten to add that a disabled employee is not entitled to
a supervisor ideally suited to his or her needs. We held in Gaul, for
instance, that an employee is not entitled to transfer whenever the
employee deems that his co-workers are causing him inordinate stress.
134 F.3d at 579.
33
We want to reiterate the limits of the interactive process.
We are not holding that an employer who has made a good
faith effort to accommodate must be saddled with a
secretary who consistently makes typos and fails to deliver
messages. Nor do we hold that an employer cannot
introduce a new computer system or switch an employee to
a less forgiving supervisor. What we do hold is that an
employer, having received adequate notice of an employee's
disability and desire for accommodations, cannot fail to
engage the employee in the interactive process offinding
accommodations, increase the disabled employee's job
responsibilities, and then simply document the employee's
failures.
To show that an employer failed to participate in the
interactive process, a disabled employee must demonstrate:
1) the employer knew about the employee's disability; 2) the
employee requested accommodations or assistance for his
or her disability; 3) the employer did not make a good faith
effort to assist the employee in seeking accommodations;
and 4) the employee could have been reasonably
accommodated but for the employer's lack of good faith.
Mengine, 114 F.3d at 420; Bultemeyer, 100 F.3d at 1285;
Taylor, 93 F.3d at 165.
We believe that a reasonable jury could conclude that
Taylor requested accommodations, that the school district
made no effort to help Taylor find accommodations and was
responsible for the breakdown in the process, and that
there were accommodations that the school district could
have provided that would have made Taylor able to perform
the essential functions of her job. If a jury concludes that
the school district was not responsible for the breakdown in
the interactive process, Taylor must demonstrate that a
specific, reasonable accommodation would have allowed her
to perform the essential functions of her job.
We have viewed the evidence in the light most favorable
to Taylor, as we must on summary judgment. The school
district is, of course, free to argue at trial that it did not
receive notice of Taylor's request for accommodation, that it
tried to assist Taylor in seeking accommodations, or,
assuming the school district was responsible for the
breakdown in the process, that no accommodation would
34
have allowed Taylor to perform the essential functions of
her job. And as we discussed in an earlier section above,
the school district can also contest whether Taylor is
disabled while on medication.11
IV
For the foregoing reasons, we will reverse the March 20,
1998 grant of summary judgment by the District Court and
remand the case for further proceedings. By a separate
order we have granted panel rehearing and vacated our
prior opinion, which was reported at 174 F.3d 142.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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11. The District Court treated Taylor's complaint as possibly raising a
disparate-treatment claim. Because Taylor represents on appeal that she
did not intend to raise such a claim, we need not reach the issue.
35