Skerski v. Time Warner Cable , 257 F.3d 273 ( 2001 )

Opinions of the United
2001 Decisions States Court of Appeals
for the Third Circuit
7-9-2001
Skerski v. Time Warner Cable
Precedential or Non-Precedential:
Docket 00-3199
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Filed July 9, 2001
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-3199
LARRY S. SKERSKI,
Appellant
v.
TIME WARNER CABLE COMPANY, a Division of TIME
WARNER ENTERTAINMENT COMPANY , L.P., aka TIME
WARNER NEWHOUSE ANNEX CORPORATION, aka
TWE-ADVANCE/NEWHOUSE
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 98-cv-00341)
District Judge: Hon. Donetta W. Ambrose
Argued January 8, 2001
Before: SLOVITER, ROTH, and RENDELL,
Circuit Judges
(Filed: July 9, 2001)
William A. Penrod
Susan A. Meredith (Argued)
Caroselli, Beachler, McTier nan
& Conboy
Pittsburgh, PA 15222
Attorneys for Appellant
William G. Merchant (Argued)
Papernick & Gefsky
Monroeville, PA l5l46
Attorney for Appellee
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Appellant Larry S. Skerski filed suit in the United States
District Court for the Western District of Pennsylvania
against his former employer Time W arner Cable Co.,
alleging discrimination on the basis of a disability in
violation of the Americans with Disabilities Act ("ADA"), 42
U.S.C. S 12101 et seq. The District Court granted Time
Warner's motion for summary judgment and Skerski
appeals.
I.
At all times relevant to this action, appellee Time Warner
and its predecessor in interest operated a television cable
franchise in the Coraopolis/Moon Township ar ea of
Western Pennsylvania. Time Warner's predecessor, New
Channels,1 hired Skerski in 1982 to upgrade cable
converters in customers' homes. Several months later ,
Skerski was trained and began working as a cable service
technician to install and disconnect cable television service
for customers. As part of his job as an installer technician,
Skerski serviced cable wires at aerial cable plants (hereafter
_________________________________________________________________
1. Time Warner refers to this company as "New Channels" whereas
Skerski refers to it as "Astro Cablevision" or "Newhouse Annex
Corporation." We shall refer to it as"New Channels."
2
referred to as "overhead work") and underground plants
(hereafter referred to as "underground work").2 Performing
the overhead work required Skerski to climb ladders, poles,
and towers, and work at heights. In his deposition
testimony, Skerski first asserted that "ther e was more
underground [work] than over head [work]," app. at 352, but
he later agreed that approximately 50% of his job required
climbing, app. at 41-42. The written description of Skerski's
job prepared by New Channels included"repetitive . . . pole
climbing . . . and ladder climbing" among the"Physical
Tasks." App. at 143.
In May 1993, more than 10 years after he began working
as an installer technician at New Channels, Skerski began
experiencing dizziness, nausea, and irregular heartbeats
while working at heights. In June 1993, Skerski was
examined by Dr. Stephen G. Brodsky and was diagnosed as
having a panic and anxiety disorder associated with
premature ventricular contractions of the heart. Dr.
Brodsky referred Skerski to Dr . Stuart L. Steinberg, a
psychologist, for his panic condition. Dr. Steinberg
recommended that Skerski cease climbing ladders and
poles, and otherwise working at heights.
Upon learning of Dr. Steinberg's diagnosis, Skerski's
supervisor at New Channels, David Kane, modified
Skerski's schedule so as to permit him to continue working
as an installer technician. Thus, New Channels limited
Skerski's assignments to underground work. The
assignments were distributed each day at Kane's direction.
Skerski continued to perform under this"modified
arrangement," app. at 361, after New Channels was
acquired by Time Warner in March 1995, and until
January 1997.
Under Time Warner, Skerski's job effectively remained the
same. Time Warner's written description of Skerski's
position listed the nine essential functions as:
_________________________________________________________________
2. There are occasional refer ences in the briefs and in the Appendix to
"ground work" as well, but there is no attempt to distinguish such work
from "underground work." We assume there is no difference, but if there
is, it is clear that neither form of work involves climbing. For our
purposes, we will simply discuss "undergr ound work."
3
1. Conducts CLI testing and repairs, checks amplifier
levels in the feeder system for signal quality, and
handles routine plant maintenance.
2. Performs FSM calibration and r epairs system
problems (i.e., power supplies, active and passive
devices and cable).
3. Responds to and completes subscriber technical
service calls. Repairs include, but are not limited
to: drop wiring, matching xformers, converter
replacement, and TV fine tuning.
4. Repairs and replaces strand, lashing, pole line
transfers and general construction.
5. Installs new trunk, feeder cables, and associated
hardware.
6. Installs and maintains subscriber contr ol and
distribution system for multi-subscriber systems.
7. Maintains and stocks necessary materials and
tools for company vehicle.
8. Records data on system equipment and
operation/services and accurately completes all
paperwork as assigned.
9. Recognizes, practices, and enforces safety rules
and procedures when performing technical tasks.
App. at 145-146. Each essential function described aspects
of that function. One of the four aspects under the fourth
essential function was "[m]ay climb poles to perform line
transfers." App. at 145. The position description also
included "climbing" within the "Special Skills, Knowledges
and Abilities" section. As in the New Channels' description,
the "Physical Requirements" section included "[c]limbing on
ladders, telephone poles, and/or towers." App. at 147.
At some point in 1995, Kane resigned due to poor health
and was temporarily replaced by Donna Gruseck before
Time Warner hired Richar d Hanning in the fall of 1996 to
serve as technical operations manager. In that position,
Hanning was Skerski's immediate supervisor. In October
1996, Hanning gave Skerski a below-standard per formance
4
review because of his inability to climb. T ime Warner
concedes that otherwise "Skerski's perfor mance was
superior." Br. of Appellee at 8. However, at that time
Hanning told Skerski that Time War ner could not permit
him to continue working on his modified no-climbing
schedule. According to Skerski, this was thefirst time since
the onset of his panic and anxiety disorder in 1993 that
anyone at either New Channels or Time W arner had
demanded that he climb.
Skerski described the conversation in his deposition. He
testified that he told Hanning that he could continue to
climb "with an accommodation," and asked if he"could
have a bucket truck," which he had used befor e
successfully, even after his panic disorder was diagnosed.
App. at 83. Hanning responded that Time W arner didn't
have any bucket trucks to give him, but Skerski believed it
did have an extra bucket truck, which he referr ed to as "an
older one." App. at 84. Skerski said that he asked Hanning
that he be permitted to continue with his underground
work but that Hanning responded, " `Y ou need to be 100
percent.' He said Time War ner will not accommodate me,
nor do they have to." App. at 85.
At about this time, Time Warner offered Skerski the
opportunity to complete a 90-day training pr ogram to allow
him to re-acquire the climbing skills necessary to continue
in his job as a technician. In a perfor mance review memo
dated October 28, 1996, Hanning wrote that"[f]ailure to
successfully complete [the 90-day program] and the interim
goals will lead to additional disciplinary action up to and
including termination." App. at 156.
Skerski attempted, but was unable to complete the
training program. He repeatedly complained, "I can't be
doing this" because of his anxiety disorder . App. at 388. Dr.
Steinberg, who had continued to treat Skerski, sent a letter
dated November 21, 1996 reinforcing his prior medical
opinion that, inter alia, "[t]he fear of panic attacks is
incapacitating and interferes with [Skerski's] work and his
private life." App. at 150. Time War ner then stopped the
training program without explanation.
It was Time Warner's intention to terminate Skerski's
employment as an installer technician in light of his
5
continued inability to climb. It did, however , offer him as an
alternative to termination a newly-cr eated warehouse
position that paid considerably less than the technician
position -- $12.50 per hour in the warehouse compared to
the $19.45 per hour he had received as a technician. This
may have been in response to Skerski's letter dated
November 24, 1996, expressing his inter est in a newly-
created position in the warehouse, although Skerski made
clear in that letter that he preferred to continue working in
the same capacity as he had worked in the pr evious three
years. At the end of January 1997, Skerski accepted the
warehouse position but stated in his deposition that he did
so "only under duress," as Time W arner "[was] threatening
[him] with termination." App. at 92.
Shortly after beginning the warehouse position in early
February 1997, a position for which Skerski claims he
"didn't have the skills," app. at 92, he injur ed his back
while lifting and carrying heavy material. Skerski has not
returned to work since then, having developed severe lower
back pain. He has received workers' compensation benefits
based on his salary as an installer technician.
Skerski commenced this civil action under the Americans
with Disabilities Act in February 1998, seeking to r ecover
money damages from Time War ner and reinstatement to
his "modified duty status" as an installer technician. App.
at 13. The District Court granted Time W arner's motion for
summary judgment on January 27, 2000. See Skerski v.
Time Warner Cable Co., No. 98-341 (W.D. Pa. Jan. 27,
2000). The court determined that there is a genuine issue
of material fact as to whether Skerski is "disabled" and
acknowledged Time Warner's concession that there is a
genuine issue of material fact as to whether he suf fered "an
otherwise adverse employment decision" under the ADA.
Nonetheless it granted summary judgment to T ime Warner
because it found that climbing was an essential function of
the installer technician's job that Skerski could not perform
and that the transfer to a warehouse position was a
reasonable accommodation. Accordingly, the District Court
determined that Skerski failed to set forth sufficient
evidence to establish a prima facie case under the ADA.
6
Skerski timely filed a notice of appeal. The District Court
exercised subject matter jurisdiction over Skerski's ADA
claim pursuant to 28 U.S.C. S 1331 and we have appellate
jurisdiction over the District Court's grant of summary
judgment pursuant to 28 U.S.C. S 1291.
II.
Summary judgment is appropriate where"there is no
genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(c). In considering a motion for summary judgment, a
court must draw all reasonable inferences from the
underlying facts in the light most favorable to the non-
moving party. See Battaglia v. McKendry, 233 F.3d 720,
722 (3d Cir. 2000). The burden is on the moving party to
demonstrate that the evidence creates no genuine issue of
material fact. See Ideal Dairy Farms, Inc. v. John Labatt,
Ltd., 90 F.3d 737, 743 (3d Cir. 1996). Once the moving
party has met this initial burden, the non-moving party
must present concrete evidence that supports each
essential element of its claim. See id. A district court's grant
of summary judgment is subject to plenary review. See
Pittston Co. Ultramar Am. Ltd. v. Allianz Ins. Co. , 124 F.3d
508, 515 (3d Cir. 1997).
The Americans with Disabilities Act prohibits employers
from discriminating based upon the known physical or
mental impairments of "a qualified individual with a
disability." 42 U.S.C. S 12112. To make out a prima facie
case under the ADA, a plaintiff must establish that s/he (1)
has a "disability," (2) is a "qualified individual," and (3) has
suffered an "adverse employment decision" as a result of
that disability. Deane v. Pocono Med. Ctr ., 142 F.3d 138,
142 (3d Cir. 1998) (en banc). The District Court found that
there were disputed issues of material fact with regard to
the first and third prongs of this test, but relied on the
second prong for its judgment. The court deter mined that
as a matter of law Skerski is not a "qualified individual"
under the ADA, and therefore held that he had failed to set
forth a prima facie case of discrimination that could survive
Time Warner's motion for summary judgment.
7
Under the ADA, a "qualified individual" is one "who, with
or without reasonable accommodation, can per form the
essential functions of the employment position that such
individual holds or desires." 42 U.S.C.S 12111(8). To satisfy
this requirement, a plaintiff mustfirst demonstrate that
s/he "satisfies the requisite skill, experience, education and
other job-related requirements of the employment position
that such individual holds or desires." Deane, 142 F.3d at
145. Second, a plaintiff must establish that s/he, "with or
without reasonable accommodation, can per form the
essential functions of the position held or sought." Id. There
is no dispute as to the first part of this analysis as Time
Warner readily concedes that Skerski was an experienced
installer technician. Rather, the issues in the instant case
revolve around the latter question.
Turning our attention to this second question requires us
to conduct another two-part inquiry. First, we must
determine whether Skerski can perfor m the essential
functions of his job without accommodation. If this is the
case, we will consider him a "qualified individual," thereby
satisfying the second part of a prima facie case under the
ADA. If Skerski cannot perform the essential functions of
his job as an installer technician without accommodation,
we must then inquire whether he can per form those same
functions with a reasonable accommodation. Again, if he
can do so, he will be considered a "qualified individual"
under the ADA. See id. at 146. If we determine that genuine
issues of material fact exist as to whether Skerski is a
"qualified individual" under the ADA, we must reverse the
District Court's grant of summary judgment to T ime
Warner and remand the case for trial.
A.
Climbing as an "Essential Function"
Skerski first argues that the District Court erred in
determining that climbing is an essential function of his job
as an installer technician as a matter of law. He contends
that, at the very least, there is a genuine issue of material
fact as to whether climbing is essential which should be
reserved for a jury.
8
We look first to the relevant agency r egulations to
determine whether climbing is an essential function of
Skerski's job as an installer technician. A job's"essential
functions" are defined in 29 C.F.R.S 1630.2(n)(1) as those
that are "fundamental," not "mar ginal." The regulations list
several factors for consideration in distinguishing the
fundamental job functions from the marginal job functions,
including: (1) whether the performance of the function is
"the reason the position exists;" (2) whether there are a
"limited number of employees available among whom the
performance of that job function can be distributed;" and
(3) whether the function is "highly specialized so that the
incumbent in the position is hired for his or her expertise."
29 C.F.R. S 1630.2(n)(2). The r egulations further set forth a
non-exhaustive list of seven examples of evidence that are
designed to assist a court in identifying the "essential
functions" of a job. They include:
(i) The employer's judgment as to which functions are
essential;
(ii) Written job descriptions prepar ed before
advertising or interviewing applicants for the job;
(iii) The amount of time spent on the job per forming
the function;
(iv) The consequences of not requiring the incumbent
to perform the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the
jobs; and/or
(vii) The current work experience of incumbents in
similar jobs.
29 C.F.R. S 1630.2(n)(3).
As is apparent, "[w]hether a particular function is
essential is a factual determination that must be made on
a case by case basis." EEOC Interpretive Guidance on Title
I of the Americans with Disabilities Act, 29 C.F .R. pt. 1630,
App. 1630.2(n) (2000) [hereafter "EEOC Interpretive
Guidance"]. It follows that none of the factors nor any of the
evidentiary examples alone are necessarily dispositive.
9
See Stone v. City of Mount Vernon, 118 F.3d 92, 97 (2d Cir.
1997).
In granting summary judgment, the District Court stated
that "reasonable jurors could onlyfind that climbing is an
essential element of the installer technician position."
Skerski, slip op. at 7. Referring to the r egulations, the
District Court found significant that Time W arner's own
judgment and the written job descriptions issued by both
Time Warner and New Channels suggested that climbing
was an essential job requirement, and that Skerski himself
admitted in his deposition that as an installer technician he
spent a considerable portion of his time climbing. The court
further dismissed Skerski's reliance on evidence that
another co-worker spent most of his time working on
underground work, explaining that "Skerski does not . . .
introduce any evidence suggesting that this co-worker
never climbs." Id. at 8 (emphasis in original).
Looking to the three factors included in S 1630.2(n)(2), it
is evident that two are not present in this case as installer
technicians are not hired solely to climb or even because of
their climbing expertise. See 29 C.F .R. S 1630.2(n)(2)(i) and
(iii). On the other hand, the other factor supports the
District Court's conclusion that climbing is an essential
function of the job of installer technician. Ther e is evidence
to suggest that Time Warner employs a limited number of
installer technicians in Skerski's work area-- only 7 or 8,
according to Skerski -- and that this small number
hampers Time Warner's ability to allow certain technicians
to avoid climbing. The significance of this factor is pointed
out in the Interpretive Guidance to S 1630.2(n), which
explains, "if an employer has a relatively small number of
available employees for the volume of work to be per formed,
it may be necessary that each employee perfor m a
multitude of different functions. Ther efore, the performance
of those functions by each employee becomes mor e critical
and the options for reorganizing the work become more
limited." EEOC Interpretive Guidance, 29 C.F .R. pt. 1630,
App. 1630.2(n).
But this is only one of the three factors. Mor eover,
consideration of the seven evidentiary examples included in
S 1630.2(n)(3) suggests caution against any pr emature
10
determination on essential functions as at least some of
them lean in Skerski's favor. Of course, as r equired by
S 1630.2(n)(3)(i), we owe some deference to Time Warner
and its own judgment that climbing is essential to the
installer technician position. And the written job
descriptions, as the District Court noted, "clearly identify
climbing as a job requirement." Skerksi, slip op. at 7.
However, describing climbing as a requir ement is not
necessarily the same as denominating climbing as an
essential function. In fact, the job descriptions pr epared by
both New Channels and Time Warner list various duties
and responsibilities under the heading "Essential
Functions," but neither identifies climbing as"essential."3
Instead, New Channels includes climbing under the
heading "Physical Tasks," app. at 143, and Time Warner
includes climbing under "Special Skills[ ]" and "Physical
Requirements," app. at 147. Although "may climb poles" is
listed as an aspect of one of Time War ner's essential
functions, the failure of both job descriptions to list
"climbing" under the heading "Essential Functions"
suggests one could view climbing as a useful skill or
method to perform the essential functions of the job but
that it is not itself an essential function of the installer
technician position.
The distinction was made by Representative Fish when
he introduced amendments to the bill that became the ADA
relating to the definition of a "qualified individual" and the
reasonable accommodation requirement and which were
incorporated into the ADA. In his comments, he stated:
[T]he essential function requirement focuses on the
desired result rather than the means of accomplishing
it. For example, in one case under the Rehabilitation
_________________________________________________________________
3. The nine essential functions set forth in T ime Warner's job
description
are set forth in the text. New Channels listed the following as "Essential
Job Functions" in its written description of Skerski's installer
technician
position: (1) "Must possess a valid driver's license, have ability to
drive
company vehicles and have a good driving recor d;" (2) "Public relations
skills to the extent that they are needed for verbal and written
communication of both technical and non-technical information to
customers and fellow employees;" and (3) "Must have mechanical ability
to use small tools." App. at 143.
11
Act, the employer required each employee to be able to
perform the job with both arms. Prewitt v. U.S. Postal
Service, 662 F.2d 292 (5th Cir. 1981). The plaintiff was
unable to do this because his disability resulted in
limited mobility in his left arm. The court found that
the essential function of the job was the ability to lift
and carry mail which the employee had proven that he
could do, not the ability to use both arms. Moreover,
the court found that the employer was requir ed to
adapt the work environment to determine whether the
employee with the disability could perfor m the essential
requirements of the job with reasonable adaptations.
Likewise, in a job requiring the use of a computer,
the essential function is the ability to access, input,
and retrieve information from the computer. It is not
essential that the person be able to use the keyboar d or
visually read the computer screen, if the provision of
adaptive equipment or software would enable the
person with the disability -- for example, impair ed
vision or limited hand control -- to contr ol the
computer and access the information. The r elevant
question would be whether the acquisition of the
equipment would be a reasonable accommodation,
given the factors to be considered in making that
determination.
136 Cong. Rec. 11,451 (1990).
Among the facts and circumstances relevant to each case
is, of course, the employee's actual experience as well as
that of other employees. See 29 C.F.R. S 1630.2(n)(3)(iv), (vi)
and (vii). It is undisputed that from the time Skerski began
as an installer technician in 1982 until the time he was
diagnosed with his panic disorder in 1993, a significant
portion of his job responsibilities requir ed climbing. There
is a basis to find that Skerski spent appr oximately 50% of
his time before his 1993 diagnosis perfor ming work that
required climbing. However, for the three and a half years
after his diagnosis in which he continued to work as an
installer technician, Skerski performed virtually no
overhead work at all. He only did so when he was "trying to
see if [he] could do it." App. at 375. As we noted above,
Time Warner conceded that Skerski continuously received
12
high ratings for his performance during this time. Skerski
testified at his deposition that there always was enough
underground work to do, that he always worked 40-hour
weeks and even worked enough to earn a couple thousand
dollars per year in overtime, and that he had never
experienced problems at work because of his panic disorder
until Hanning became his supervisor in the fall of 1996.
For further support, Skerski points to the experience of
one of his co-workers, Bill Bajnowski, who allegedly worked
almost exclusively on underground assignments. We are
unable to give that experience much weight because
Bajnowski, unlike Skerski, was never put on "modified"
duty, app. at 369, and Skerski admitted that no other
installer technicians had ever been restricted from overhead
work like he was.
Skerski argues that his own experience exemplifies that
no negative consequences resulted from his failure to
perform the climbing function of his job, which is another
of the illustrations listed in the regulations. See 29 C.F.R.
S 1630.2(n)(3)(iv). However, ther e is support in the record
for Time Warner's contention that Skerski's inability to
climb caused it considerable administrative difficulties.
Approximately 75%, or 170 miles, of Time Warner's cable
system in the relevant area consists of overhead aerial
cable, which requires installer technicians to climb to
service the cables. Hanning testified that Skerski's inability
to climb "made the routing process extr emely
cumbersome," app. at 121, because the assignment process
had to be done by hand instead of computer. He also
claimed that Skerski's inability to climb necessitated the
hiring of outside contract labor to meet demand, and that
Skerski was not always as busy as he should have been
due to his restricted work schedule. In an affidavit, Michael
Flynn, Time Warner's technical operations manager in
Skerski's area since January 1998, stated that the need to
climb on a particular assignment may not be deter mined
until the technician actually arrives at the location of the
service call and it is therefore often difficult to predict
whether overhead or underground work will be needed on
a given day.
13
But Time Warner's evidence does not stand undisputed.
Skerski testified that he always knew in advance whether
an assignment would require climbing, and that his former
supervisors Kane and Gruseck each had doled out
assignments by hand without difficulty. Mor eover, at oral
argument before us, Time War ner's counsel acknowledged
that he knows of no instance in which Skerski went out on
assignment, only to have to return because the assignment
required climbing. And Skerski claimed in his letter of
November 24, 1996 that his "fellow employees, both field
and office, have expressed their support in the companies
[sic] accommodation with my current position." App. at
158.
In support of its argument that climbing is an essential
function of Skerski's job, Time War ner relies on two district
court decisions from outside this circuit. Of course, neither
binds us but inasmuch as the facts presented ar e not
dissimilar to those presented here, we consider them. In
Lodderhose v. Viacom Cable, Inc., No. C96-4282 SI, 1998
WL 57025 (N.D. Cal. Jan. 27, 1998), a cable installer
technician suffering from multiple scler osis sought to
continue in his job even after his doctors opined that he
could not safely work at heights because of his decr eased
coordination and balance problems. Although the cable
company transferred him to another position in the
company as a field sales representative, albeit with smaller
income, and offered alternate accommodations, Lodderhose
sued, alleging discrimination under the ADA.
The court stated that Lodderhose did not r eally dispute
whether climbing was an essential function of his job. See
id. at *6. The unpublished opinion thus focused on whether
the employer could have reasonably accommodated the
plaintiff by reassigning him or r estructuring his job. In
contrast, Skerski has set forth evidence that places into
dispute whether climbing was an essential function of his
job. Specifically, Skerski argues that he did work for more
than three years in his capacity as installer technician
without climbing. Therefore, this case is distinguishable
from Lodderhose.
Time Warner responds that the fact that Skerski was
assigned underground work for thr ee years following his
14
1993 diagnosis is not relevant to this court's determination
of what functions are essential to the job of installer
technician. It notes that in Allen v. Geor gia Power Co., 980
F. Supp. 470 (N.D. Ga. 1997), the court held that certain
physical movements that an electrician could not per form
because of a back injury were "essential functions of the
position of electrician" even though the electrician had
continued in his job for 30 months after the injury in a
"light duty" capacity in which he perfor med none of those
movements. Id. at 476. But the plaintif f in Allen based his
argument that climbing was not an essential function of his
job on the ground that the essential functions of his job
changed when his employer switched from a supervisor-
directed job-assignment system to one in which each
employee was self-directed. The plaintif f readily admitted
that climbing had been an essential function of his job, but
argued that after the switch, "the only essential function of
the position of electrician was to keep himself busy." Id. In
contrast, in the case before us there was no change in the
manner in which job assignments were distributed; rather,
Skerski argues that climbing was never an essential
function of his job.
Skerski emphasizes that the Allen plaintif f could not
perform the majority of the assignments generally given to
electricians whereas he can perfor m the majority of the
functions of an installer technician. These ar e jury
arguments. Skerski's ability to perfor m as an installer
technician for more than three years without climbing
might lead a reasonable juror to infer that Skerski's
inability to climb had no adverse consequences for his
employer, a factor that is relevant to determining what is an
essential function. See 29 C.F.R.S 1630.2(n)(3)(iv). In light
of the conflicting deposition testimonies of fered by Skerski
and Hanning, it is unclear what effect Skerksi's inability to
climb had on the servicing of Time War ner's cable system
in the Coraopolis area.
We do not suggest that the District Court her e had no
basis for its conclusion that climbing is an essential
function of Skerski's position as installer technician or even
that, if we were the triers of fact, we would not so hold. But
upon reviewing the three factors listed in 29 C.F.R.
15
S 1630.2(n)(2) and the seven evidentiary examples provided
by 29 C.F.R. S 1630.2(n)(3), it is apparent that a genuine
issue of material fact exists as to whether climbing is an
essential function of the job of installer technician at Time
Warner. Although the employer's judgment and the written
job descriptions may warrant some deference, Skerski has
put forth considerable evidence that contradicts T ime
Warner's assertions, particularly the uncontradicted fact
that following his 1993 diagnosis he worked for mor e than
three years as an installer technician for T ime Warner
without ever having to perform over head work. Moreover,
certain evidence suggests that during these thr ee-plus
years Skerski received repeated commendations for his
work and never received any complaints fr om supervisors
or co-workers, that is until Hanning became his immediate
supervisor in the fall of 1996.
Skerski's situation is not dissimilar from that of Deane,
a nurse who was unable to do heavy lifting without
assistance. The hospital for which she worked contended
that lifting was an essential function of her position, and
that because she was unable to lift she was not a"qualified
individual" under the ADA. Deane conceded that lifting was
part of a nurse's duties but claimed that the heavy lifting
she was restricted from doing was not an essential function
of a nurse. In light of the evidence produced by both, this
court en banc found that there was a genuine issue of
material fact that must be decided by a jury. See Deane,
142 F.3d at 148. We therefor e conclude that the District
Court incorrectly decided that "reasonable jurors could only
find that climbing is an essential element of the installer
technician position." Skerski, slip op. at 7. Because a
genuine issue of material fact exists as to whether climbing
is an essential function, and therefore whether Skerksi is a
"qualified individual" under the ADA, this case must be
remanded for trial.
B.
"Reasonable Accommodation"
Skerski argues that even if climbing is an essential
function, there is a genuine issue of material fact whether
16
he can, with a "reasonable accommodation," perform the
job as an installer technician, and that summary judgment
was therefore improper.
As explained earlier, a disabled employee may establish a
prima facie case under the ADA if s/he shows that s/he
can perform the essential functions of the job with
reasonable accommodation and that the employer refused
to make such an accommodation. According to the ADA, a
"reasonable accommodation" includes:
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 relevant r egulations define
reasonable accommodations as "[m]odifications or
adjustments to the work environment, or to the manner or
circumstances under which the position held or desired is
customarily performed, that enable a qualified individual
with a disability to perform the essential functions of that
position." 29 C.F.R. S 1630.2(o)(1)(ii).
In Walton v. Mental Health Ass'n of Southeastern Pa., 168
F.3d 661 (3d Cir. 1999), this court established that, "[o]n
the issue of reasonable accommodation, the plaintiff bears
only the burden of identifying an accommodation, the costs
of which, facially, do not clearly exceed its benefits." Id. at
670 (quotation omitted); see also Borkowski v. V alley
Central Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995).
Summary judgment may be granted for a defendant only
"in cases in which the plaintiff's pr oposal is either clearly
ineffective or outlandishly costly." Walton, 168 F.3d at 670(quotation omitted) (emphasis added).
If the plaintiff satisfies his or her bur den, the defendant
then has the burden to demonstrate that the pr oposed
accommodation creates an "undue hardship" for it. See id.;
42 U.S.C. S 12112(b)(5)(A). The ADA defines"undue
hardship" as "an action requiring significant difficulty or
17
expense, when considered in light of [a series of factors]."
42 U.S.C. S 12111(10)(A). Among the factors to be
considered are "the effect on expenses and resources, or
the impact otherwise of such accommodation upon the
operation of the facility." 42 U.S.C. S 12111(10)(B).
The District Court found that Time War ner fulfilled its
responsibilities under the ADA by reassigning Skerski to a
warehouse position. The District Court noted that
regulations implementing the ADA list "r eassignment to a
vacant position" as a possible reasonable accommodation.
See Skerski, slip op. at 9 (quoting 29 C.F .R.
S 1630.2(o)(2)(ii)). The District Court found significant the
fact that Skerski had previously requested a transfer to the
warehouse. Skerski argues that his prior request for such
a transfer does not prove that it qualifies as a reasonable
accommodation. He testified in his deposition that he had
requested the warehouse transfer "only under duress"
because he was afraid he was going to lose his job. App. at
398. Skerski stated, "I'll take anything at that point, but I
wanted my tech job." App. at 398. Therefor e, no inference
that the transfer was reasonable can be drawn from
Skerski's request.
The District Court apparently was also awar e that a
transfer is not a reasonable accommodation if the employee
is not qualified for the new position, see Mengine v.
Runyon, 114 F.3d 415, 418 (3d Cir . 1997) (discussing the
Rehabilitation Act, the analysis of which is equivalent to
that of the ADA), as the court noted that Skerski had failed
to argue that he lacked the training, education, or skills
required for the warehouse position. However, there is
evidence in the record that suggests that Skerski was not
qualified for the warehouse position. In his deposition,
Skerski stated that he lacked the necessary computer and
inventory skills, and that the warehouse position was "a
more physically demanding job." App. at 398. Time Warner
has not contested these assertions. In light of all these
outstanding factual questions, there is a genuine issue of
material fact as to whether reassignment to the
considerably lower-paying warehouse position ($12.50 per
hour compared with the installer technician position paying
$19.45 per hour) was a reasonable accommodation that
satisfied the ADA.
18
Of even more significance is the fact that the EEOC's
commentary to the regulations makes clear that
661reassignment "should be considered only when
accommodation within the individual's curr ent position
would pose an undue hardship." EEOC Interpr etive
Guidance, 29 C.F.R. pt. 1630, App. 1630.2(o) (emphasis
added). The commentary continues: "[a]n employer may
reassign an individual to a lower graded position if there
are no accommodations that would enable the employee to
remain in the current position and ther e are no vacant
equivalent positions for which the individual is qualified
with or without reasonable accommodation." Id. In the
instant case, it is not at all clear that a r easonable
accommodation within Skerski's installer technician
position was not possible.
Time Warner's defense in this case has been, in essence,
that it would have been "inconvenient" for it to make the
adjustments needed to retain Skerski in the position that
he previously had. However, the ADA was enacted to
compel employers to look deeper and more cr eatively into
the various possibilities suggested by an employee with a
disability. As is evident from the section on r easonable
accommodation in the House Report to the Act, to which
the Senate receded, it is only when the accommodation
suggested would constitute an undue hardship that the
employer can justify failure to accommodate in that
manner. See H.R. Rep. No. 101-485 (II), at 67-68 (1990),
reprinted in 1990 U.S.C.C.A.N. 303, 349-50.
Skerski contends that Time Warner should have
permitted him to use a bucket truck to work at heights as
an installer technician, which would have enabled him to
avoid climbing.4 Skerski testified in his deposition that, in
_________________________________________________________________
4. Skerski also argued in the District Court that Time Warner should
have permitted him to continue to work under the modified schedule in
which he only performed undergr ound work. The District Court
determined that this proposal would not be a reasonable
accommodation. Because Skerski has not challenged this finding on
appeal, we need not review the District Court's determination on this
matter. We note, however, that while the fact that Time Warner
previously permitted Skerski to work without performing overhead work
19
response to Hanning's demand in the fall of 1996 that he
resume the climbing functions of his installer technician
position, he offered to use a bucket truck instead, and that
this bucket truck would enable him to perfor m all of the
required overhead work. Although T ime Warner rejected
this proposition, Skerski further testified that it was his
understanding that Time Warner had a bucket truck
available for use at the time. Time War ner does not contest
Skerski's claim that he requested the use of a bucket truck
before being reassigned.
At oral argument, Time War ner's counsel asserted that
providing Skerski with a bucket truck would have been
"clearly ineffective" in light of a letter from Skerski's
treating physician, Dr. Steinber g, in which Dr. Steinberg
stated that Skerski's panic disorder "pr events him from
climbing ladders more than a single extension, working in
a bucket truck over that height, working on the r oof of his
home, . . . or approaching any height situation that
increases his premature ventricular contractions or fear of
having a panic attack. The fear emanates from a panic
attack resulting in loss of balance and falling to the
ground." App. at 150. Time War ner points out that in
Lodderhose the district court accepted the defendant's
similar argument that a proposed accommodation was
unreasonable because the proposal r equired the plaintiff to
undertake activity that his own doctors had deemed
"unsafe." 1998 WL 57025, at *7.
Notwithstanding the district court's analysis in
Lodderhose, we find present her e a genuine issue of
material fact as to whether providing Skerksi with a bucket
truck would have been a reasonable accommodation. There
does not appear to have been much, if any, attention
devoted to this issue in the proceedings befor e the District
_________________________________________________________________
for three years is relevant to whether his working at heights was
essential to his job, it is not relevant to whether his disability can be
accommodated. This is because employers are not required to
accommodate an employee by removing an essential function or
restructuring a job so as to avoid it, but, rather, they are to provide an
accommodation so as to enable the employee to per form such a function.
See EEOC Interpretive Guidance, 29 C.F .R. pt. 1630, App. 1630.2(o).
20
Court. The court did not refer to a bucket truck in its
opinion, and the only references in the r ecord to the
possibility of its use were Skerski's testimony in his
deposition that he proposed this alternative to Time Warner
and that Time Warner owned bucket trucks at the time,
and the reference in Dr. Steinber g's letter to Skerski's
inability to work in a variety of jobs at heights. T ime
Warner has not argued befor e us that bucket trucks were
unavailable for Skerski's use or that providing Skerski with
a bucket truck would have posed an undue har dship on it.
In fact, Time Warner conceded at oral argument that there
were three or four bucket trucks in its system, but of
course it is a factual issue whether one could have been
put at Skerski's disposal.
Time Warner's reliance on the letter from Dr. Steinberg
may ultimately carry the day. However, as Skerski's counsel
pointed out, Dr. Steinberg has never been questioned,
much less cross-examined, as to whether a bucket truck
was a viable alternative, or the circumstances under which
Skerski might have been able to use a bucket truck. The
weight to be given to Dr. Steinberg's letter is a question that
should ultimately be decided by a jury.
If the jury were to find that the bucket truck was a
reasonable accommodation, the reassignment to the
warehouse position did not satisfy the r equirements of the
ADA. See EEOC Interpretive Guidance, 29 C.F.R. pt. 1630,
App. 1630.2(o). We therefore find that there is a genuine
issue of material fact as to whether Time W arner provided
Skerski with a reasonable accommodation, ther eby making
summary judgment inappropriate.
III.
For the foregoing reasons, we will r everse the District
Court's order granting summary judgment to T ime Warner
on Skerski's claim under the ADA. We believe there are
genuine issues of material fact as to whether climbing is an
"essential function" of Skerski's job as an installer
technician, and, if it is, whether Time W arner provided
Skerski with a "reasonable accommodation" under the ADA.
21
Accordingly, we will remand for further pr oceedings
consistent with this opinion.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
22