Kralik v. Durbin

Opinions of the United

1997 Decisions States Court of Appeals

for the Third Circuit

12-12-1997

Kralik v. Durbin

Precedential or Non-Precedential:

Docket 97-3089,97-3106

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Filed December 12, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 97-3089 and 97-3106

KAREN KRALIK,

Appellant in No. 97-3089

v.

JOHN DURBIN, in his capacity as Executive Director,

Pennsylvania Turnpike Commission

KAREN KRALIK,

v.

JOHN DURBIN, in his capacity as Executive Director,

Pennsylvania Turnpike Commission,

Appellant in No. 97-3106

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civ. No. 95-01877)

Argued October 21, 1997

BEFORE: MANSMANN, GREENBERG, and

ALARCON,* Circuit Judges

(Filed: December 12, 1997)

_________________________________________________________________

*Honorable Arthur L. Alarcon, Senior Judge of the United States Court

of Appeals for the Ninth Circuit, sitting by designation.

Pamela E. Berger (argued)

312 Boulevard of the Allies

Pittsburgh, PA 15222

Attorney for Appellant-Cross

Appellee Karen Kralik

James B. Brown (argued)

Jeffrey A. Van Doren

Cohen & Grigsby

625 Liberty Avenue

2900 CNG Tower

Pittsburgh, PA 15222-3115

Attorneys for Appellee-Cross

Appellant John Durbin

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

Karen Kralik appeals from the district court's December

16, 1996 order entering summary judgment against her

under the Rehabilitation Act, 29 U.S.C. S 701 et seq., and

the Americans with Disabilities Act ("ADA"), 42 U.S.C.

S 12101 et seq., and from the district court's January 14,

1997 order denying her motion for reconsideration. The

appellee, John Durbin, cross appeals from the portion of

the December 16, 1996 order denying summary judgment

as to one issue even though the order dismissed Kralik's

complaint. We will affirm the orders granting summary

judgment and denying the motion for reconsideration and

will dismiss the cross appeal.

Kralik alleged in her complaint that she is an individual

with a disability employed as a toll collector by the

Pennsylvania Turnpike Commission, an instrumentality of

the Commonwealth of Pennsylvania, at its Allegheny Valley

Interchange. Durbin is Executive Director of the

2

Commission so as a matter of convenience and reality we

will refer to him as the "Commission." Kralik asserted that

she suffered a back injury in an automobile accident

unrelated to her work. She further asserted that she sought

from the Commission the reasonable accommodation of

being relieved from forced overtime "as she cannot work for

more than eight hours at a time" because of her injuries.

The Commission, however, refused to grant the

accommodation except on a temporary basis. After the

Commission filed an answer, it moved for summary

judgment on the grounds that Kralik is not a qualified

individual with a disability and that, in any event, the

Commission is not obligated to make the requested

accommodation.1

In its opinion dated December 13, 1996, the district court

noted that Kralik had worked for the Commission since

1988 as a toll collector and in 1990 had become a

permanent Commission employee at the Allegheny Valley

Interchange. Kralik was in a bargaining unit represented by

Teamsters Local Union No. 250. At all relevant times the

union was a party to a collective bargaining agreement with

the Commission which included the following overtime

provision:

Section 11. In a twenty-four (24) hour operation, if

the Commission experiences difficulty in obtaining a

replacement for any work shift, they will call employees

using the seniority system described herein. If no

employee accepts the assignment, it shall be offered by

seniority to employees at the work site. In the event

they refuse, the least senior employee, including any

temporary employees in the needed job classifications,

shall remain as the replacement. A temporary employee

shall not be permitted to work overtime when a full-

time employee is ready, willing and able to perform the

overtime work in question. Temporary Toll Collectors

who are scheduled to work forty (40) hours or who

_________________________________________________________________

1. It also urged that Kralik failed to exhaust the remedies provided in

the

collective bargaining agreement between her union, Teamsters Local

Union No. 250, and the Commission, but that issue is no longer in the

case so we make no further reference to it.

3

have already worked forty (40) hours in a given work

week are not to be asked to work a vacant shift unless

all the Temporary Toll Collectors who are not

scheduled to work nor have worked forty (40) hours

and all the permanent Toll Collectors have refused to

work the vacant shift. All hours worked by a

Temporary Toll Collector will be counted towards the

forty (40) hours requirement except those hours

worked which were first offered to and refused by all

eligible permanent Toll Collectors.

Scheduled work time must be adjusted to comply

with the above.

A. Consistent with Article IX, in the event that

overtime opportunities are refused by all employees,

the overtime shift shall be assigned to the employee

currently working with the least amount of seniority.

This will be known as a `forced overtime assignment'.

The court observed that after two medical leaves of

absence due to her back injury, Kralik on November 7,

1994, submitted a "Reasonable Accommodation Form" to

the Commission requesting exemption from forced overtime

requirements. Kralik subsequently filed a charge with the

Equal Employment Opportunity Commission ("EEOC")

asserting that the Turnpike Commission had violated the

ADA in not making an accommodation and that the union,

Kralik, and the Commission later had entered into an

agreement temporarily excusing her from being forced to

work overtime. Then, as the court noted, she filed this

action seeking relief under both the ADA and section 504 of

the Rehabilitation Act, 29 U.S.C. S 794.

The court, citing Helen L. v. DiDario, 46 F.3d 325, 331

(3d Cir.), cert. denied, 116 S.Ct. 64 (1995), held that the

similarities between the two statutes permit a joint analysis

of Kralik's claims.2 The court then explained:

_________________________________________________________________

2. As noted in Lyons v. Legal Aid Soc'y, 68 F.3d 1512, 1514-15 (2d Cir.

1995), "[t]he Rehabilitation Act . . . prohibits disability-based

discrimination by government agencies and other recipients of federal

funds . . . ." The ADA has a broader scope as it defines a "covered

entity"

as "an employer, employment agency, labor organization, or joint labor-

management committee." 42 U.S.C. S 12111(2). Certain employers,

however, are not included within section 12111(2). See 42 U.S.C.

S 12111(5).

4

[U]nder either the ADA or the Rehabilitation Act, a

plaintiff can state a claim for discrimination based

upon her employer's failure to accommodate her

handicap by alleging facts showing (1) that the

employer is subject to the statute under which the

claim is brought, (2) that she is an individual with a

disability within the meaning of the statute in question,

(3) that, with or without reasonable accommodation,

she could perform the essential functions of the job,

and (4) that the employer had notice of the plaintiff's

disability and failed to provide such accommodation.

Slip op. at 6 (quoting Lyons v. Legal Aid Soc'y, 68 F.3d

1512, 1515 (2d Cir. 1995)). For purposes of its summary

judgment motion, the Commission agreed that it was

subject to both the ADA and the Rehabilitation Act and had

notice of Kralik's alleged disability, yet sought summary

judgment on the grounds that Kralik was not a qualified

individual with a disability and could not, with or without

reasonable accommodation, perform the essential functions

of the job as a toll collector.

As the court noted, both the ADA and the Rehabilitation

Act define "disability" as a "physical or mental impairment

that substantially limits" one or more of the major life

activities of the individual claiming to have a disability. 42

U.S.C. S 12102(2); 29 U.S.C. S 706(26). Major life activities

include "functions such as caring for oneself, performing

manual tasks, walking, seeing, hearing, speaking,

breathing, learning and working," 29 C.F.R. S 1630.2(i), as

well as "sitting, standing, lifting [and] reaching." 29 C.F.R.

S 1630 app.

After analyzing the record the court concluded as follows:

(1) Kralik did not produce evidence that her ability to work,

to engage in the major life activities of caring for herself or

her house, to travel or engage in leisure activities, or to

twist had been substantially impaired; but (2) there was a

genuine dispute of fact as to whether Kralik's ability to sit,

stand, and stoop had been impaired. Thus, the court

denied the Commission's motion for summary judgment on

the issue of whether Kralik was a qualified individual with

a disability.

5

The court next considered the Commission's alternate

contention that Kralik's claim could not succeed because

the requested accommodation, exemption from the forced

overtime provision, was not reasonable. In this regard the

Commission pointed out that such an exemption could

require the Commission to compel an employee with more

seniority than Kralik to work overtime, forcing the

Commission to infringe another employee's seniority rights

under the collective bargaining agreement.

The court cited various cases under the Rehabilitation

Act and the ADA supporting a conclusion that a measure

that violates a seniority system established in a collective

bargaining agreement is not a "reasonable accommodation,"

and thus is not required by the ADA. See Eckles v.

Consolidated Rail Corp., 94 F.3d 1041, 1052 (7th Cir. 1996)

(discussed below), cert. denied, 117 S.Ct. 1318 (1997);

Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1114 (8th

Cir. 1995) ("The ADA does not require that Northwest take

action inconsistent with the contractual rights of other

workers under a collective bargaining agreement."); Wooten

v. Farmland Foods, 58 F.3d 382, 386 (8th Cir. 1995) ("An

employer is not required to make accommodations that

would violate the rights of other employees. Farmland

Foods had no obligation to terminate other employees or

violate a collective bargaining agreement in order to

accommodate Wooten, even if it perceived him to have a

substantial impairment.") (citation omitted); Milton v.

Scrivner, Inc., 53 F.3d 1118, 1124-25 (10th Cir. 1995) ("An

employer is not required by the ADA to reallocate job duties

in order to change the essential function of a job. An

accommodation that would result in other employees

having to work[ ] harder or longer hours is not required.")

(citations omitted); Shea v. Tisch, 870 F.2d 786, 790 (1st

Cir. 1989) ("Consequently, we . . . conclude that the postal

service was not required to accommodate plaintiff further

by placing him in a different position since to do so would

violate the rights of other employees under the collective

bargaining agreement."); Carter v. Tisch, 822 F.2d 465, 467

(4th Cir. 1987) ("Reassigning Carter to permanent light

duty, when he was not entitled to one of a limited number

of light duty positions, might have interfered with the rights

6

of other employees under the collective bargaining

agreement.").

The court found that Kralik's requested accommodation

would infringe upon the legitimate seniority rights of other

employees established in the collective bargaining

agreement. The court then, for the very reason that the

accommodation was temporary, rejected Kralik's contention

that the temporary agreement described above amounted to

a concession that the requested accommodation is

reasonable. See Shea, 870 F.2d at 789 & n.4 (holding that

employer was not required to institute permanent

accommodation that would violate rights under collective

bargaining agreement despite employer's ability to maintain

accommodation temporarily without compromising other

employees' rights). Thus, the court concluded that

"regardless of Kralik's ability to establish that one or more

of her major life activities were substantially limited, the

requested accommodation is not reasonable, in that it

would require the Commission to violate the seniority

rights of other employees as set forth in the collective

bargaining agreement." Consequently, the court granted the

Commission summary judgment.

Subsequently, Kralik moved for reconsideration

contending, as she explains in her brief, that there was "an

agreement between the Teamsters and the . . . Commission

regarding the accommodation of another fare collector

[which] permits assigning [the collector] to a shift

independently of the bidding process required by the

collective bargaining agreement." Br. at 5. The

documentation attached to Kralik's motion included a letter

from the union to the Commission stating that as long as

the other collector's request is covered by and was

reasonable under the ADA, the union would not object to

the assignment of that collector and "will process no

grievances concerning this matter." App. at 93. The district

court denied the motion for reconsideration as Kralik did

not explain why she had not produced this evidence earlier.3

_________________________________________________________________

3. The court also indicated in denying the motion for reconsideration that

Kralik "neither relied on the EEOC amicus brief in her earlier brief nor

mentioned that the 7th Circuit rejected the argument therein." We are

uncertain why Kralik's failure to rely on the EEOC brief was germane to

the motion but we believe that the reference to the Court of Appeals for

the Seventh Circuit probably was to Eckles, 94 F.3d at 1050-52, which

we cite above and discuss at great length below.

7

Kralik then appealed and the Commission cross appealed.

The district court had jurisdiction under 28 U.S.C. SS 1331

and 1343 and we have jurisdiction under 28 U.S.C. S 1291.

We exercise plenary review over the order granting

summary judgment but will review the order denying

reconsideration on an abuse of discretion basis.

II. DISCUSSION

A. The appeal

Preliminarily we point out that Kralik does not question

the district court's joint analysis of her ADA and

Rehabilitation Act claims. Thus, she does not contend that

she might be entitled to relief under one act but not the

other. Consequently, while we will focus our analysis

primarily on the ADA, our analysis in this case applies

equally to her Rehabilitation Act claim. The ADA provides

that prohibited discrimination includes "not making

reasonable accommodations to the known physical or

mental limitations of an otherwise qualified individual with

a disability." 42 U.S.C. S 12112(b)(5)(A). Inasmuch as the

district court held that there was a material dispute of fact

as to whether she was a qualified individual with a

disability, Kralik primarily challenges the district court's

determination that the Commission did not discriminate

against her in violation of the ADA by failing to exempt her

from the forced overtime provisions of her union's collective

bargaining agreement.

In urging us to reverse she points to 42 U.S.C.

S 12112(b)(2), an ADA provision which provides that

discrimination includes a covered entity's:

participating in a contractual or other arrangement or

relationship that has the effect of subjecting a covered

entity's qualified applicant or employee with a disability

to the discrimination prohibited by this subchapter

(such relationship includes a relationship with an

employment or referral agency, labor union, an

organization providing fringe benefits to an employee of

the covered entity, or an organization providing

training and apprenticeship programs).

8

She then argues that under both the Rehabilitation Act, as

amended in 1991, and the ADA, an employer should

consider making an accommodation by reassigning an

employee. See Br. at 9 (citing Shiring v. Runyon, 90 F.3d

827, 832 (3d Cir. 1996)). She further contends that the

Commission's adherence to the forced overtime provision in

the collective bargaining agreement violates the plain

language of 42 U.S.C. S 12112(b)(2), and thus of the

Rehabilitation Act, and that the legislative history of the

ADA supports her position by establishing that an " `entity

may not do through a contractual provision what it may not

do directly . . . .' " Br. at 10 (quoting H.R. Rep. No. 485(II)

101st Cong., 2d Sess. 59-60 (1990)).

She also argues that EEOC guidelines favor a flexible

approach wherein unions and employers "consult and work

out an accommodation," br. at 14, and maintains that the

Commission could accommodate her by excusing her from

forced overtime without undue hardship, difficulty or

expense. Br. at 16. In fact, as Kralik emphasizes, the union

and the Commission agreed on a temporary basis that the

Commission would not force Kralik to work overtime and,

as she pointed out in her motion for reconsideration, the

Commission with the union's agreement accommodated

another toll collector by assigning him to a shift without

regard for the bidding process in the collective bargaining

agreement. Furthermore, in practice the Commission rarely

would need to assign Kralik to forced overtime. Indeed, at

oral argument before this court Kralik indicated that during

the pendency of this litigation the Commission never has

required her to work forced overtime. She also contends

that the cases relied on by the district court and cited

above are either factually distinct or incorrectly decided. Br.

at 17-19.

In considering the merits of this appeal we reiterate that

the accommodation Kralik seeks would require the

Commission to violate the collective bargaining agreement.

Nevertheless, we agree with her that the collective

bargaining agreement is not necessarily decisive because

the union and the Commission together may modify the

agreement as they did on a temporary basis by relieving her

from forced overtime. But Kralik points to nothing in the

9

record to support a contention that the union has

communicated to the Commission a willingness to waive

the forced overtime provision with respect to her as long as

she is a qualified individual with a disability. 4 Rather, she

refers to a letter to her by the secretary-treasurer of her

union stating that "it may be possible to waive[the forced

overtime] provision if it can be shown that your injury

qualifies you under the [ADA]." App. at 82-83. Of course, a

union waiver of the forced overtime provision would vitiate

the Commission's argument that it could not accommodate

Kralik without violating the agreement. Unfortunately for

Kralik, however, the union has not given the Commission

such a waiver. Accordingly, the issue before us is clear: is

the accommodation Kralik seeks unreasonable because it

would require the Commission to infringe on the seniority

rights of other employees in the collective bargaining

agreement?5

On this point we follow Eckles, 94 F.3d 1041, which is a

compelling precedent. In that case Eckles, who suffered

from epilepsy, sought from his employer, Conrail, an

accommodation consisting of an assignment to a position

appropriate for his disability. The difficulty with his request

was that it would have required Conrail to infringe on the

seniority rights of other employees under the collective

bargaining agreement. Id. at 1043. Thus, while Conrail did

not contend that the accommodation would place an undue

burden on it, it argued that the accommodation simply was

not required "due to its effects on the legitimate seniority

rights of other employees." Id. at 1045. Accordingly, the

issue in Eckles was: "whether the ADA requires as

`reasonable accommodation' that a disabled individual be

_________________________________________________________________

4. In view of the EEOC charge Kralik brought against the union after the

district court ruled against her, which we discuss below, we doubt that

it did so.

5. Kralik also argues that the requested accommodation does not place

an undue burden on the Commission because of "the existence of

provisions [in the collective bargaining agreement] for other workers to

voluntarily perform [overtime]." Br. at 7. This observation does not

support her case because the forced overtime provision by its terms

applies only "in the event that overtime opportunities are refused by all

employees."

10

given special job placement ... in violation of a bona fide

seniority system in place under a collectively bargained

agreement, when such accommodation is the only way of

meeting the job restrictions of that disabled individual." Id.

at 1045-46.

The Eckles court pointed out that the case posed "a

conflict not so much between the rights of the disabled

individual and his employer and union, but between the

rights of the disabled individual and those of his co-

workers." Id. at 1046. The court also observed that the

applicability of 42 U.S.C. S 12112(b)(2), which Kralik

invokes and which prohibits discrimination brought about

through participation in contractual relationships,

depended in that case on establishing a violation of section

12112(b)(5)(A), since the only form of discrimination alleged

there, as here, was the failure to provide a reasonable

accommodation. Thus, if reasonable accommodation"does

not require reassignment to a position held by another

employee, the collective bargaining agreement at issue did

not subject Eckles to prohibited discrimination by

establishing a bona fide seniority system that regulates the

holding of positions at Conrail." Eckles, 94 F.2d at 1046.

The court acknowledged that a covered entity cannot

avoid its ADA duties by contractual manipulation. But

inasmuch as Eckles did not claim that "the seniority

system was established, even in part, in order to bypass the

duty to accommodate" a qualified individual with a

disability under the ADA, there was "no evidence of . . .

subterfuge." Id. The court then observed that:

if the ADA does not require that collectively bargained

seniority rights be compromised in order to reasonably

accommodate a disabled individual, Eckles cannot

establish that Conrail and the Union are guilty of

participating in a contractual arrangement that has the

effect of subjecting him to prohibited discrimination.

Hence the issue is simply what is required by

`reasonable accommodation.'

Id. at 1046.

The court recognized that although the accommodation

Eckles sought did not require firing of other employees,

11

"what would be lost to the other employees, particularly

more senior employees, would be some of the value of their

seniority with the company, not their employment." Id. at

1047. The court held that even this limited infringement on

other employees' seniority rights was not reasonable under

the ADA, and pointed out that:

courts have been unanimous in rejecting the claim that

`reasonable accommodation' under the Rehabilitation

Act requires reassignment of a disabled employee in

violation of a bona fide seniority system. In fact, a

virtual per se rule has emerged that such reassignment

is not required under the Rehabilitation Act's duty to

reasonably accommodate.

Id. (citations omitted). Thus, the Eckles court explained that

Congress adopted the ADA against "the backdrop of well-

established precedent that `reasonable accommodation'

under the Rehabilitation Act had never been held to require

trumping the seniority rights of other employees." Id. at

1048.

In concluding its comprehensive discussion, the Eckles

court held that "[a]fter examining the text, background, and

legislative history of the ADA duty of `reasonable

accommodation,' we conclude that the ADA does not

require disabled individuals to be accommodated by

sacrificing the collectively bargained, bona fide seniority

rights of other employees." Id. at 1051. While the court

recognized "that many of the `reasonable accommodations'

specifically proposed within the ADA also have effects on

other workers," it found that "collectively bargained

seniority rights have a pre-existing special status in the law

and that Congress to date has shown no intent to alter this

status by the duties created under the ADA." Id. at 1052.

Eckles is convincing and is in harmony with the other

precedents we cite above. Thus, we, like the Fifth Circuit

Court of Appeals, will follow it. See Foreman v. Babcock &

Wilcox Co., 117 F.3d 800, 810 (5th Cir. 1997) ("Following

the other circuits which have considered this issue, we hold

that the ADA does not require an employer to take action

inconsistent with the contractual rights of other workers

under a collective bargaining agreement.").6 In doing so we

_________________________________________________________________

6. Kralik relies heavily on Aka v. Washington Hosp. Center, 116 F.3d

876, 890-97 (D.C. Cir. 1997), reh'g en banc granted and judgment

12

recognize that in Eckles the proposed infringement on other

employees' seniority rights was far more intrusive than the

infringement at issue here. Yet the lesser degree of

infringement on other employees' seniority rights does not

distinguish adequately this case from Eckles, which

recognized the principle at stake here: an accommodation

to one employee which violates the seniority rights of other

employees in a collective bargaining agreement simply is

not reasonable.

Requiring an employer to violate the collective bargaining

agreement in situations where the employer regards the

infringement on seniority rights as insubstantial and the

accommodation reasonable unfairly would expose the

employer to potential union grievances as neither the union

nor the arbitrator hearing a grievance would be required to

disregard violations of the collective bargaining agreement.

Thus, a rule requiring an employer to violate seniority

rights would subject the employer to the cost of defending

itself against grievances as well as to the risk that it might

be subject to a costly remedy. Accordingly, even minor

infringements on other employees' seniority rights impose

unreasonable burdens on employers who, by reason of

those infringements, must face the consequences of

violating the collective bargaining agreement.

In this regard, we point out that, for reasons we do not

know, the union apparently did not agree that the

Commission could relieve Kralik from forced overtime for

the duration of her status as a qualified individual with a

disability. While Kralik seemed to contend at oral argument

that the union would agree to such an arrangement if she

_________________________________________________________________

vacated, 124 F.3d 1302 (D.C. Cir. 1997), which is inconsistent with

Eckles and thus with the result we reach. Aka stated that "in some cases

the degree of infringement imposed by a `reasonable accommodation' to

one employee's disability on a `right' held by other employees under the

collective bargaining agreement may be extremely slight, and may

impose virtually no `hardship' at all," and thus stated that it would be

"inappropriate to draw blanket conclusions regarding whether the ADA

can `trump' provisions in collective bargaining agreements." Id. at 896.

Aka, however, has been vacated and in any event is inconsistent with

Eckles, which we find to be soundly reasoned.

13

established that she was a qualified individual with a

disability who needed the accommodation, as we indicated

above she points to nothing in the record to demonstrate

that the union ever expressed to the Commission its

willingness to extend the temporary agreement we have

described.7

What makes the requested accommodation in this case

unreasonable is not that it would disrupt the Commission's

operations because we cannot say that it would do so.

Rather, the requested accommodation is unreasonable

because it would require the employer to violate its

collective bargaining agreement and run the risks that the

violation entails. Accordingly, we reject Kralik's suggestion

that an accommodation which requires an employer to

violate a collective bargaining agreement may impose

virtually no hardship on the employer. In short, it is

appropriate for the union, rather than the employer, to

make the determination that the infringement is justifiable

by releasing the employer from its obligation to follow the

seniority provisions of the collective bargaining agreement

to accommodate a qualified individual with a disability.8

At oral argument before us the Commission suggested

that even if the union were willing to waive the forced

overtime provision with respect to Kralik, because of the

Commission's personnel needs it might not be able to

accommodate Kralik by excusing her from forced overtime.

_________________________________________________________________

7. According to Kralik the Commission has not applied the forced

overtime provision to her during this litigation and yet the union has not

instituted a grievance proceeding. While this may be true, it does not

follow that the union will remain willing to refrain from grieving in the

future. The union's apparent acquiescence merely is a de facto

continuation of the temporary agreement we describe above. We decline

to hold that the Commission is required to accommodate Kralik for the

duration of her disability as we cannot assume that the union's

acquiescence will continue indefinitely.

8. We note, moreover, that if an employer grants an accommodation by

violating seniority rights of other employees under the collective

bargaining agreement, the employer in its operations may be making no

accommodation at all. As the Eckles court recognized, the

accommodation instead will be made by the disabled employee's co-

workers who will lose a benefit of their seniority status.

14

Obviously we need not explore that claim, which the

Commission apparently did not advance in the district

court. We also point out that our decision does not

necessarily preclude Kralik from being excused from the

forced overtime provisions as the union in the future might

assure the Commission that it will agree to the

Commission's relieving Kralik from those provisions if she

is a qualified individual with a disability who needs the

accommodation. Such a waiver would eliminate the basis

for our conclusion that the accommodation Kralik seeks is

not reasonable, leaving for determination the question of

whether Kralik is a qualified individual with a disability

who would be entitled to be relieved from forced overtime as

a reasonable accommodation.

In light of our conclusions we will affirm the order for

summary judgment entered December 16, 1996. Moreover,

it is clear that the district court did not abuse its discretion

in denying the motion for reconsideration, either on the

grounds that the new material Kralik presented could not

have affected the outcome of the case in the district court

any more than it has here, see Harsco Corp. v. Zlotnicki,

779 F.2d 906, 909 (3d Cir. 1985), or on the separate

grounds that Kralik offered no justification for her untimely

presentation of the material. Consequently, we also will

affirm the order entered January 14, 1997, denying the

motion for reconsideration.

B. The cross appeal

The final issue that we address is the Commission's

contention that the district court erred in denying its

motion for summary judgment on the question of whether

Kralik was a qualified individual with a disability. The

Commission recognizes its apparent lack of standing to

appeal and acknowledges "that in the normal course a

party must be aggrieved by the final judgment of the

district court which it seeks to challenge." Br. at 16. In fact,

it even cites cases supporting the principle, namely Deposit

Guar. Nat'l Bank v. Roper, 445 U.S. 326, 333-34, 100 S.Ct.

1166, 1171-72 (1980), and Watson v. City of Newark, 746

F.2d 1008, 1010 (3d Cir. 1984). Yet it contends that courts

"have permitted an appeal from a seemingly favorable

15

disposition when adverse practical consequences, not

normally contemplated by legal theory or policy

considerations, manifest themselves." Br. at 16. On this

point the Commission contends that the denial of summary

judgment has prejudiced it in an EEOC proceeding, which

Kralik brought against the Commission and the union after

the district court denied her motion for reconsideration,

alleging retaliation for her having brought this action, and

discrimination based on her disability and her sex.

We are satisfied that even if in some cases a completely

successful party might have standing to appeal, this is not

such a case. In its partial denial of the Commission's

motion for summary judgment, the district court merely

held that at a particular time based on the record before it

there was a dispute of fact as to whether Kralik was a

qualified individual with a disability. While we certainly

understand why the Commission would like a ruling that

Kralik was not a qualified individual with a disability at

that time, the district court's inherently tentative

conclusion, though unhelpful to the Commission, is not

harmful to it either, because the conclusion does not

preclude the Commission from rejecting a new

accommodation sought by Kralik or from prevailing in any

challenge to that rejection on the grounds that she is not a

qualified individual with a disability.9 The Commission has

failed to identify sufficient adverse consequences of the

order from which it cross appeals to confer standing to

appeal. See In re DES Litig., 7 F.3d 20, 23-25 (2d Cir. 1993)

(dismissing appeal for lack of standing where appellant

prevailed below and was not aggrieved by collateral estoppel

effects or other prejudicial effects of determination below).

III. CONCLUSION

In view of the aforesaid, we will affirm the orders of

December 16, 1996, and January 14, 1997, and will

_________________________________________________________________

9. We do not suggest that we could not have reviewed the part of the

order denying summary judgment had we disagreed with the district

court's entry of summary judgment on the issues addressed in this

opinion.

16

dismiss the cross appeal. The parties will bear their own

costs on this appeal.

17

MANSMANN, Circuit Judge, dissenting.

Because I would not hold that a requested

accommodation for purposes of the ADA is per se

unreasonable where it conflicts with the seniority

provisions of a collective bargaining agreement, I

respectfully dissent. Although the majority holdingfinds

support in the caselaw, resolution of the issue before us is

not as straightforward as the majority opinion suggests.

Tension between the ADA and other labor relations

statutes, particularly the National Labor Relations Act

("NLRA"), is inevitable. As one commentator observed:

While the ADA fosters equal employment opportunities

for all Americans without regard to disability, its

drafters ignored a very serious problem. The ADA,

while promoting the rights of individual Americans in

the workplace, conflicts dramatically with the[NLRA],

an act designed to promote collective rights in the

workplace. The ADA, the regulations, and the

Interpretive Guidance all fail to address the issue of

how to reasonably accommodate an individual with a

disability under the ADA in a unionized setting--

where such rights are typically received as part of a

collective bargaining agreement. As a result of this

oversight, conflicts between the NLRA and the ADA

have arisen.

Robert W. Pritchard, Avoiding the Inevitable: Resolving the

Conflicts Between the ADA and the NLRA, 11 The Labor

Lawyer 375 (1995). This statutory tension has been

particularly apparent where, as here, the duty to provide a

reasonable accommodation under the ADA conflicts with an

arguably contrary collective bargaining obligation.

The text of the ADA does not "decisively answer the

question of whether `reasonable accommodation' can

require that otherwise valid seniority rights of other

employees be trumped." Eckles v. Consolidated Rail

Corporation, 94 F.3d 1041, 1047 (7th Cir. 1996). In this

way, the ADA differs from other anti-discrimination

statutes. For example, Title VII of the Civil Rights Act of

1964 (Title VII) specifically authorizes employers"[t]o apply

different standards of compensation, or different terms,

18

conditions, or privileges of employment pursuant to a bona

fide seniority or merit system. . . ." 42 U.S.C. S 2000e-2(h).

The Age Discrimination in Employment Act (ADEA) contains

an analogous provision: "It shall not be unlawful for an

employer, employment agency or labor organization . . . to

observe the terms of a bona fide seniority system.. . ." 29

U.S.C. S 623(f)(2)(A). Courts required to assess the

competing concerns of reasonable accommodation and the

sanctity of the collective bargaining agreement have

regularly relied on precedent generated under the

Rehabilitation Act of 1973 (the Rehabilitation Act). 29

U.S.C. S 701 et seq. "[T]he term `reasonable accommodation'

in the ADA was apparently borrowed from the regulations

issued by the Equal Employment Opportunity Commission

[EEOC] in implementation of the Rehabilitation Act. . . ."

Eckles, 94 F.3d at 1047. In determining whether an

accommodation which conflicts with a collective bargaining

agreement can ever be reasonable, courts construing the

Rehabilitation Act have adopted a per se rule: a collective

bargaining agreement will always "trump" the

accommodation.1

Confronted with Congress' failure to articulate definitively

a different rule in cases arising under the ADA, a number

of our sister courts of appeals have applied or have

indicated that they would apply this Rehabilitation Act per

se rule in reasonable accommodation cases arising under

the ADA.2 The majority, relying primarily upon the decision

_________________________________________________________________

1. See, e.g., Shea v. Tisch, 870 F.2d 786 (1st Cir. 1989); Carter v.

Tisch,

822 F.2d 465 (4th Cir. 1987); Daubert v. United States Postal Service,

733 F.2d 1367 (10th Cir. 1984).

2. Maj. opinion at 6. It is important to note that the courts in Milton v.

Scrivner, Inc., 53 F.3d 1118 (10th Cir. 1995), and Wooten v. Farmland

Foods, 58 F.3d 382 (8th Cir. 1995), discussed the per se rule in the

context of the ADA in dicta. Neither analyzed the conflict between the

ADA and the NLRA.

It is important to note, too, that a number of commentators have

criticized application of a per se rule in the context of the ADA. See

Jerry

M. Hunter, Potential Conflicts Between Obligations Imposed on Employees

and Unions by the National Labor Relations Act and the Americans with

Disabilities Act, 13 N. Ill. U. L. Rev. 207 (1993); Robert W. Pritchard,

19

in Eckles, embraces this approach. I am convinced,

however, that this per se rule, imported from cases decided

under the Rehabilitation Act, was not intended to apply in

the context of the ADA.

Although the plain text of the ADA does not definitively

resolve the issue before us, it does contain language which

suggests that seniority systems, inviolable under the

Rehabilitation Act, might, in certain circumstances, yield to

reasonable accommodation claims. Unlike the

Rehabilitation Act and Title VII, the ADA defines the term

"reasonable accommodation" to include: "job restructuring,

part-time or modified work schedules, reassignment to a

vacant position, acquisition or modification of equipment

. . . and other similar accommodations for individuals with

disabilities." 42 U.S.C. S 12111(9)(B). In a unionized

workplace, these potential accommodations will almost

always conflict to some degree with established seniority

systems. The ADA, however, indicates that these

accommodations should be made available without

addressing their impact on seniority concerns. While this

feature of the ADA is not dispositive, it is significant,

especially when it is considered against the background of

the ADA's broad sweep3 and its legislative history.

The Report of the House Committee on Education and

Labor supports the conclusion that under the ADA, the

collective bargaining agreements, including those provisions

impacting seniority, were not intended to "trump"

reasonable accommodation claims:

_________________________________________________________________

Avoiding the Inevitable: Resolving the Conflicts Between the ADA and the

NLRA, 11 The Labor Lawyer 375 (1995); Joanne Jocha Ervin, Reasonable

Accommodation and the Collective Bargaining Agreement Under the

Americans with Disabilities Act, 1991 Det. C. L. Rev. 925 (1991); Rose-

Daly Rooney, Note, Reconciling Conflicts Between the Americans with

Disabilities Act and the National Labor Relations Act to Accommodate

People With Disabilities, 6 DePaul Bus. L. J. 387 (1994).

3. The ADA expanded the scope of the Rehabilitation Act both in

coverage and in the degree of protection afforded. See, Note, Civil Rights

and the Disabled: A Comparison of the Rehabilitation Act of 1973 and the

Americans with Disabilities Act of 1990 in the Employment Setting, 54

Alb. L. Rev. 123 124-25 (1989).

20

The collective bargaining agreement could be relevant

. . . in determining whether a given accommodation is

reasonable. For example, if a collective bargaining

agreement reserves certain jobs for employees with a

given amount of seniority, it may be considered as a

factor in determining whether it is a reasonable

accommodation to assign an employee with a disability

without seniority to that job. However, the agreement

would not be determinative on this issue.4

H.R. Rep. No. 485 (II), 101st Cong., 2d Sess. 63 (1990),

reprinted in 1990 U.S.C.C.A.N. 267, 345 (emphasis added).

These reports provide sound foundation for the argument

that Congress intended to depart from the line of authority

developed under the Rehabilitation Act holding that a

requested accommodation is per se unreasonable when it

conflicts with a seniority provision in a collective bargaining

agreement. The legislative history indicates that courts are

obligated to look beyond the collective bargaining

agreement in order to determine whether a particular

accommodation is reasonable. The status of the collective

bargaining agreement under the ADA has been diminished;

it is now only one factor to be considered in determining

whether a proposed accommodation is reasonable.

Additional evidence for this view of the role of collective

bargaining agreements under the ADA is found in the

legislative history relating to the "undue hardship"

provisions of the Act. Under the ADA, an employer's failure

to make "reasonable accommodations to the known

physical or mental limitations of an otherwise qualified

individual with a disability" constitutes prohibited

discrimination "unless [the employer] can demonstrate that

the accommodation would impose an undue hardship

on the operation of the business. . . ." 42 U.S.C.

S 12112(b)(5)(A).

The EEOC regulations interpreting this section provide

that an employer may demonstrate "that the provision of a

particular accommodation would be unduly disruptive to its

_________________________________________________________________

4. The Report of the Senate Committee on Labor and Human Resources

contains language identical to that of the House Report. See S.Rep. No.

101-116 at 32 (1989).

21

other employees or to the functioning of its business. The

terms of a collective bargaining agreement may be relevant

to this determination." 29 C.F.R. S 1630.15(d) app. (1996)

(emphasis added). The EEOC's Technical Assistance

Manual underscores the reduced role assigned to the

collective bargaining agreement under the ADA, stating that

"[t]he terms of a collective bargaining agreement may be

relevant in determining whether an accommodation would

impose an undue hardship." EEOC Technical Assistance

Manual S 3.09, at III-16 (1992). The example given in the

Manual to illustrate the status of a collective bargaining

agreement in determining undue hardship refers

specifically to a situation where the requested

accommodation conflicts with a seniority provision in a

collective bargaining agreement:

A worker who has a deteriorated disc condition and

cannot perform the heavy labor functions of a

machinist job, requests reassignment to a vacant

clerk's job as a reasonable accommodation. If the

collective bargaining agreement has specific seniority

lists and requirements governing each craft, it might be

an undue hardship to reassign this person if others

had seniority for the clerk's job.

Id.

Clearly, the EEOC did not assume that Congress, in

drafting the ADA, had incorporated the per se rule adopted

by the majority. If seniority provisions of a collective

bargaining agreement were inviolate under the Act, any

conflicting proposed accommodation would automatically

be unreasonable; there would never be a need to consider

whether such an accommodation posed an undue

hardship.

The text of the ADA, its legislative history, and the

relevant EEOC regulations convince me that there are

enough dissimilarities between the Rehabilitation Act and

the ADA to warrant rejection of the per se rule announced

by the majority in favor of a fact-intensive approach which

examines whether a particular proposed accommodation

constitutes an "undue hardship." This approach, which is

consistent with the statute, the legislative history, and the

22

regulations, protects all parties, including those other

employees subject to the terms of the collective bargaining

agreement by allowing each accommodation to be examined

in light of its cumulative impact on the business operation

as a whole. Far from being ignored under this approach,

the collective bargaining agreement is relegated to its

intended status as a factor to be considered in determining

whether a requested accommodation imposes an undue

hardship.

Although I recognize that the opinion of the Court of

Appeals for the D.C. Circuit in Aka v. Washington Hospital,

116 F.3d 876 (D.C. Cir. 1997), reh'g in banc granted and

judgment vacated, 124 F.3d 1302 (D.C. Cir. 1997), lacks

precedential value, I find its analysis and rejection of Eckles

sound and adopt its reasoning as the essence of my

disagreement with the majority:

[I] reject the Eckles court's analysis because the plain

language of the ADA requires employers to provide

accommodations to the disabilities of qualified

employees unless the accommodation in question

would be "unreasonable" or would impose an"undue

hardship," because the suggested "reasonable

accommodations" listed in the statute include several

. . . that commonly will conflict to some degree with the

applicable collective bargaining agreements in

unionized workplaces -- including the portions of those

agreements creating "seniority rights," and because

both the legislative history of the ADA and the relevant

EEOC regulations clearly indicate that the fact that a

particular accommodation would require some

departure from the terms of a collective bargaining

agreement should not in itself determine the question

of whether an employer may be required to provide the

accommodation. . . .

* * * *

[I] likewise think it is inappropriate to draw blanket

conclusions regarding whether the ADA can "trump"

provisions in collective bargaining agreements, or

whether the ADA can require the "sacrifice[ ]" of "rights"

created in other employees by these agreements. . . .

23

[A]fter all, in some cases the degree of infringement

imposed . . . may impose virtually no "hardship" at all.

If one nondisabled employee entitled to a vacant

position under the seniority system in the collective

bargaining agreement must wait an extra day before

receiving an identical assignment because the earlier

vacancy was filled by a disabled employee pursuant to

the ADA, would this entail the "sacrifice" of rights

created in other employees under the agreement? . . .

[I] think that the ADA's "reasonable accommodation"

provisions require us to bear in mind that conflicts

between accommodations to disabled employees and

the terms of applicable collective bargaining

agreements exist on a continuum rather than

functioning like an "on/off switch."5

At 895-96 (citations omitted).

The approach adopted by the majority in reliance on

Eckles could well lead to absurd results which run counter

to the broad remedial purposes of the ADA.6 The better

approach would be to jettison the per se rule developed in

the context of the far less sweeping Rehabilitation Act in

favor of the balancing process already in place under the

ADA in the determination of "undue hardship." The result

reached in Eckles under the undue hardship balancing

analysis would likely be unchanged where in this case, the

outcome would be far less certain.

For the foregoing reasons, I would reverse the order of

the district court granting summary judgment in favor of

the Commission based on the court's conclusion that the

requested accommodation was per se unreasonable. In all

other respects, I would affirm the order of the district court.

_________________________________________________________________

5. A similar result was reached in a case decided prior to Eckles, Emrick

v. Libbey-Owens-Ford Co., 875 F. Supp. 393, 396 (E.D. Tex. 1995).

6. The academic response to the decision in Eckles has been less than

enthusiastic. See William Mcdevitt, Seniority Systems and the Americans

with Disabilities Act: The Fate of Reasonable Accommodation after Eckles,

9 St. Thomas L. Rev. 359 (1997); Condon A. McGlothlen and Gary N.

Savine, Eckles v. Consolidated Rail Corp.: Reconciling the ADA with

Collective Bargaining Agreements: Is This the Correct Approach?; 46

DePaul L. Rev. 1043 (1997).

24

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

25