Gaul v. Lucent Tech Inc

Opinions of the United

1998 Decisions States Court of Appeals

for the Third Circuit

1-22-1998

Gaul v. Lucent Tech Inc

Precedential or Non-Precedential:

Docket 97-5114

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Filed January 22, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-5114

DENNIS E. GAUL,

Appellant

v.

*LUCENT TECHNOLOGIES INC.;

JOHN DOES 1-100; JANE DOES 1-100;

ABC CORP.; XYZ CORP.

(*Amended per the Clerk's 9/29/97 order)

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 94-cv-05263)

Argued December 4, 1997

BEFORE: COWEN, McKEE and WEIS,

Circuit Judges

(Filed January 22, 1998)

Linda B. Kenney, Esq.

Gregory S. Schaer, Esq. (argued)

The Galleria

2 Bridge Avenue

Atrium Building #5, 2nd Fl.

Red Bank, NJ 07701

Counsel for Appellant

Francis X. Dee, Esq. (argued)

Carpenter, Bennett & Morrissey

100 Mulberry Street

Three Gateway Center

Newark, NJ 07102

Counsel for Appellee

OPINION OF THE COURT

COWEN, Circuit Judge.

This is an appeal by plaintiff-appellant, Dennis Gaul,

from the February 21, 1997, order of the United States

District Court for the District of New Jersey granting

summary judgment in favor of defendant-appellee, AT & T,

Inc. (AT & T), and dismissing plaintiff's complaint. Gaul v.

AT & T, 955 F. Supp. 346 (D.N.J. 1997). The district court

held that plaintiff was not disabled under the Americans

with Disabilities Act (ADA), 42 U.S.C. S 12101 et seq.,

because: (1) his depression and anxiety-related disorders

were not impairments that substantially limited his major

life activity of working; (2) there was no record of such

impairment; and (3) plaintiff was not regarded as having

such impairment. The district court also held that plaintiff

was neither "disabled" under the ADA nor "handicapped"

under the New Jersey Law Against Discrimination

(NJLAD), N.J.S.A. 10:5-1 et seq., because his proposed

accommodation--transfer to a position where he would not

be subjected to prolonged and inordinate stress by

coworkers--was unreasonable as a matter of law. Finally,

having concluded as a legal matter that plaintiff's proposed

accommodation was unreasonable, the district court held

that plaintiff's state law claims for breach of contract,

breach of the implied covenant of good faith and fair

dealing, and constructive discharge must also fail. We

affirm.

I.

Gaul began working for AT & T in 1981 as a Technical

Associate and was promoted to Senior Technical Associate

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in 1983. He was diagnosed as suffering from depression

and anxiety-related disorders in March, 1984. Although his

condition was successfully controlled for more than a year

with anti-depressant drugs, Gaul suffered a nervous

breakdown in 1986. He was hospitalized for several weeks

and was absent from work for approximately three months

during that year.

Gaul eventually returned to work in early 1987. Once

again, he received drug treatment, and his condition

appeared under control. Indeed, by late 1988 or early 1989,

Gaul received a two-step promotion to Member of Technical

Staff. In June, 1990, however, Gaul suffered a relapse after

receiving an unfavorable performance review from his

manager at that time, Joe Warren, and again went out on

disability leave.

While out on disability leave, Gaul was contacted by Tang

Jampathon, a supervisor from AT & T's Cordless Telephone

Department. Jampathon expressed interest in having Gaul

work on a project for which Gaul's skills were required.

Gaul explained to Jampathon that he would be unable to

work under conditions of prolonged and inordinate stress,

and Jampathon assured him that the people in the

department would be very supportive. After receiving this

assurance, Gaul began seeing Dr. Morris Reby, a board

certified psychiatrist, about his desire to return to work

when medically able. Dr. Reby diagnosed Gaul as having

adjustment disorder with depression, anxiety, and

obsessive/compulsive personality. Gaul had several more

visits with Dr. Reby and was soon authorized to return to

work on a "limited basis."

Gaul returned to work on September 4, 1990, and was

permitted to work short hours for one week. From

September 4, 1990, until the time he started to work with

Donovan Folkes, a coworker, Gaul had no problem with

stress, except when a dispute arose in August, 1991,

between two coworkers. However, this situation rapidly

changed in December, 1991, when he was assigned to work

with Folkes on Phase II of the "International Project," also

known as the "Herring Project," the purpose of which was

to design a cordless telephone for the international market.

Gaul was responsible for physical design of the base unit of

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the telephone set, and Folkes was assigned the handset

portion of the unit.

Gaul claims that almost from the outset, he and Folkes

had difficulty working together, resulting in a constant

source of stress for Gaul. Gaul accused Folkes of using

information from "his" data base on the base unit and of

not sharing information with him. Gaul also claims that

Folkes "may have" taken credit for one of Gaul's ideas and

that it "appeared" that Folkes would not acknowledge

Gaul's contributions to the team. He also claims that

Folkes failed to note Gaul's contribution during a March or

April, 1992 meeting and failed to list Gaul as a "co-author"

on a tooling estimate.

Gaul claims that he spoke to various people at AT & T

about his difficulties with Folkes. He first attempted to

resolve the problems with Folkes himself, but when these

attempts were unsuccessful, he complained, without avail,

to Jampathon in February, 1992. Gaul also sought help

from Paul Newland, team leader on the Herring Project, and

Patricia Kaufman, an Ombudsperson at AT & T. However,

neither Newland nor Kaufman provided assistance to Gaul.

In April, 1992, Gaul told Jampathon's replacement,

Edwin Muth, that the situation with Folkes was causing

him tremendous stress. Gaul again spoke to Muth in April

or May, 1992, and advised him that he was still having

trouble with Folkes. Muth told Gaul that he should take the

matter up with Steve Bourne, the department head.

Gaul spoke briefly to Bourne about Folkes in May or

June, 1992, and again in June or July, 1992. Bourne then

arranged a meeting with both Gaul and Folkes in mid-

August, 1992. Gaul contends that during this meeting he

told Bourne he was "stressed out" and suggested that he be

moved off the project. Shortly thereafter, Gaul allegedly

asked Bourne that he be transferred to a lower-stress

position. Specifically, Gaul claims that he told Bourne:

. . . . "Mr. Bourne, if you don't help me, or if you

can't help me at this point, I am going to get very sick,

and I'm going to pop."

Again, I looked him in the eye. I said, "Do you know

what I mean by pop?"

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And I was trying to get an answer from him. He said,

"I don't know what you mean by pop."

I said, "Well, I am going to have a nervous

breakdown, and I wouldn't be able to come back to

work."

App. at 492-93. During this meeting, Bourne did not

respond one way or another to Gaul's transfer request.

Gaul admits that he never followed up on his transfer

request.

Approximately two weeks later, on September 11, 1992,

Gaul went out on disability leave. Since that time, he has

been out on long-term disability and has been receiving

payments from AT & T's disability insurance plan and from

the Social Security Administration. He has also made a

worker's compensation claim against AT & T, asserting that

his disability is work-related. Gaul claims that he cannot

perform his former duties at AT & T, nor, in fact, could he

work for any employer, unless he is protected from

prolonged and inordinate stress.

On September 9, 1994, Gaul filed a complaint against

AT & T, alleging four causes of action. In thefirst count,

Gaul alleges that he was handicapped within the meaning

of the NJLAD and that AT & T violated the NJLAD by failing

to accommodate his alleged handicap. In the second count,

Gaul alleges that AT & T violated public policy as embodied

in the ADA by failing to accommodate his disability. In the

third and fourth counts, respectively, Gaul alleges that

AT & T breached a contract with him and breached an

implied covenant of good faith and fair dealing.

AT & T subsequently filed a motion for summary

judgment. The district court entered an order granting the

motion on February 21, 1997. The district courtfirst

determined that Gaul's ADA claim must fail because he was

not "disabled" within the meaning of the act. More

specifically, the district court concluded that Gaul's

depression was not an impairment substantially limiting

his major life activity of working, that there was no record

of such impairment, and that there was no evidence AT & T

regarded Gaul as having such impairment. Next, the

district court concluded that plaintiff's NJLAD claim must

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also fail because his request to be transferred away from

coworkers who subjected him to prolonged and inordinate

stress was unreasonable as a matter of law.1 Finally, the

district court determined that Gaul's claims for breach of

contract, breach of implied covenant of good faith and fair

dealing, and constructive discharge must fail because these

claims could not be maintained unless Gaul's proposed

accommodation was reasonable. This appeal followed.

II.

The district court had subject matter jurisdiction over

plaintiff's ADA claim pursuant to 28 U.S.C. S 1331 and

supplemental jurisdiction over the plaintiff's state law

claims pursuant to 28 U.S.C. S 1367. We have appellate

jurisdiction pursuant to 28 U.S.C. S 1291.

In reviewing an order granting summary judgment, we

exercise plenary review. Petruzzi's IGA Supermarkets, Inc. v.

Darling-Delaware Co., Inc., 998 F.2d 1224, 1230 (3d Cir.

1993). Viewing the facts in the light most favorable to the

nonmoving party, we look to see if there was a genuine

issue of material fact and, if not, whether the moving party

was entitled to judgment as a matter of law. See Fed. R.

Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

249-50, 106 S. Ct. 2505, 2510-11 (1986).

III.

The primary issue before us is whether Gaul's request to

be transferred away from individuals causing him

_________________________________________________________________

1. The district court rejected AT & T's alternative argument that Gaul's

NJLAD claim must fail because he did not present any competent expert

medical evidence that he was handicapped at the time he stopped

working at AT & T. The court found that, for purposes of the summary

judgment motion, "the testimony and documentary evidence by

plaintiff's treating physician, including that by defendant's own

physicians, [was] sufficient to establish that Gaul does in fact suffer

from

stress and depressive disorders." Gaul, 955 F. Supp. at 349. Although

AT & T continues to press this argument on appeal, we need not reach

it because we also conclude that Gaul's proposed accommodation was

unreasonable as a matter of law. See infra.

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prolonged and inordinate stress was unreasonable as a

matter of law under the ADA. We conclude that it is.

Congress enacted the ADA in 1990 in an effort to prevent

otherwise qualified individuals from being discriminated

against in employment based on a disability. See 29 C.F.R.

pt. 1630, App. at 347-48 (1997). The ADA provides that

"[n]o covered entity shall discriminate against a qualified

individual with a disability because of the disability of such

individual in regard to job application procedures, the

hiring, advancement, or discharge of employees, employee

compensation, job training, and other terms, conditions,

and privileges of employment." 42 U.S.C. S 12112(a) (1995).

The Act defines a "qualified individual with a disability" as

"an individual with a disability who, with or without

reasonable accommodation, can perform the essential

functions of the employment position that individual holds

or desires." Id. S 12111(8). An employer discriminates

against a qualified individual when it does "not mak[e]

reasonable accommodations to the known physical or

mental limitations of the individual unless the [employer]

can demonstrate that the accommodation would impose an

undue hardship on the operation of the business

of the [employer]." Id. S 12112(b)(5)(A). "Reasonable

accommodation" means measures such as "job

restructuring, part-time or modified work schedules,

reassignment to a vacant position, acquisition or

modification of equipment or devices, . . . and other similar

accommodations for individuals with disabilities." Id.

S 12111(9).

A plaintiff presents a prima facie case of discrimination

under the ADA by demonstrating: (1) he is a disabled

person within the meaning of the ADA; (2) he is otherwise

qualified to perform the essential functions of the job, with

or without reasonable accommodations by the employer;

and (3) he has suffered an otherwise adverse employment

decision as a result of discrimination. See Shiring v.

Runyon, 90 F.3d 827, 831 (3d Cir. 1996).2 This matter

_________________________________________________________________

2. Although Shiring interpreted the Rehabilitation Act of 1973, 29 U.S.C.

S 794 et seq., it is relevant to our analysis of the ADA because "in 1992

the Rehabilitation Act was amended to incorporate the standards of

several sections of the ADA, including the section defining `reasonable

accommodation.' " Mengine v. Runyon, 114 F.3d 415, 420 (3d Cir. 1997)

(citations omitted).

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turns on the second element, namely, whether Gaul was a

"qualified individual."3 "[T]he burden is on the employee to

prove that he is `an otherwise qualified' individual." Id. at

832 (citing Buckingham v. United States, 998 F.2d 735,

739-40 (9th Cir. 1993)).

A two-part test is used to determine whether someone is

"a qualified individual with a disability." 29 C.F.R. pt. 1630,

App. at 353-54. First, a court must consider whether "the

individual satisfies the prerequisites for the position, such

as possessing the appropriate educational background,

employment experience, skills, licenses, etc." Id. at 353.

Second, the court must consider "whether or not the

individual can perform the essential functions of the

position held or desired, with or without reasonable

accommodation." Id. "The determination of whether an

individual with a disability is qualified is made at the time

of the employment decision." Id. at 353-54; see also

Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563

(7th Cir. 1996).

In the present matter, AT & T does not suggest that Gaul

lacked the requisite experience, skill, or education for the

vacancy he sought. Nor does Gaul suggest that he could

have performed the essential functions of his former job

_________________________________________________________________

3. AT & T also argues that plaintiff's ADA claim must fail because he is

not disabled within the meaning of the act. More specifically, AT & T

asserts that plaintiff has not shown that his impairment substantially

limits his major life activity of working because Gaul is not incapable of

performing either "a class of jobs or a broad range of jobs in various

classes" as compared to the average person having comparable training,

skills, and abilities. Appellee's Br. at 29. AT & T also contends that

Gaul

has failed to set forth any evidence that his impairment substantially

limited any other major life activities (e.g., sleeping, eating,

thinking).

Because we conclude below that plaintiff's proposed accommodation is

unreasonable as a matter of law, we need not reach this alternative

argument. Nevertheless, we strongly suspect that a plaintiff who is

unable to work with individuals who cause him "prolonged and

inordinate stress" cannot be said to be incapable of performing a "class

of jobs or a broad range of jobs in various classes." Cf. Weiler v.

Household Finance Corp., 101 F.3d 519, 524 (7th Cir. 1996) ("The major

life activity of working is not `substantially limited' if a plaintiff

merely

cannot work under a certain supervisor because of anxiety and stress

related to his review of her job performance." (citations omitted)).

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without reasonable accommodation. Indeed, Gaul admits

that "because his fears of returning to the same stressful

work environment depressed him further, his anxieties

grew and were affecting him to the point that Dr. Reby

found him to be totally disabled." Appellant's Br. at 12.

Thus, we must consider whether plaintiff has demonstrated

a genuine issue of material fact regarding his ability to

perform the essential functions with reasonable

accommodation. White v. York Int'l Corp., 45 F.3d 357, 362

(10th Cir. 1995).

Gaul can satisfy this burden if he can make at least a

facial showing that his proposed accommodation is

possible. See Shiring, 90 F.3d at 832. More specifically,

Gaul must "demonstrate that there were vacant, funded

positions whose essential duties he was capable of

performing, with or without reasonable accommodation,

and that these positions were at an equivalent level or

position as [his former job]." Id. Gaul must also

demonstrate as part of his facial showing that the costs

associated with his proposed accommodation "are not

clearly disproportionate to the benefits that it will produce."

Borkowski v. Valley Cent. School Dist., 63 F.3d 131, 138 (2d

Cir. 1995). The term "costs" includes financial as well as

administrative burdens on a company. Cf. School Bd. of

Nassau County, Fla. v. Airline, 480 U.S. 273, 287 n.17, 107

S. Ct. 1123, 1131 n.17 (1987). If Gaul is able to make out

a prima facie showing, "the defendant then bears the

burden of proving, as an affirmative defense, that the

accommodations requested by the plaintiff are

unreasonable, or would cause an undue hardship on the

employer." Shiring, 90 F.3d at 831.

Based on the foregoing, we conclude that Gaul has failed

to satisfy his burden for three reasons. First, Gaul's

proposed accommodation would impose a wholly

impractical obligation on AT & T or any employer. Indeed,

AT & T could never achieve more than temporary

compliance because compliance would depend entirely on

Gaul's stress level at any given moment. This, in turn,

would depend on an infinite number of variables, few of

which AT & T controls. Moreover, the term"prolonged and

inordinate stress" is not only subject to constant change, it

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is also subject to tremendous abuse. The only certainty for

AT & T would be its obligation to transfer Gaul to another

department whenever he becomes "stressed out" by a

coworker or supervisor. It is difficult to imagine a more

amorphous "standard" to impose on an employer.

Second, Gaul's proposed accommodation would also

impose extraordinary administrative burdens on AT &T. In

order to reduce Gaul's exposure to coworkers who cause

him prolonged and inordinate stress, AT & T supervisors

would have to consider, among other things, Gaul's stress

level whenever assigning projects to workers or teams,

changing work locations, or planning social events. Such

considerations would require far too much oversight and

are simply not required under law.

Third, by asking to be transferred away from individuals

who cause him prolonged and inordinate stress, Gaul is

essentially asking this court to establish the conditions of

his employment, most notably, with whom he will work.

However, "[n]othing in the ADA allows this shift in

responsibility." Weiler, 101 F.3d at 526. "Indeed, nothing in

the law leads us to conclude that in enacting the disability

acts, Congress intended to interfere with personnel

decisions within an organizational hierarchy. Congress

intended simply that disabled persons have the same

opportunities available to them as are available to

nondisabled persons." Wernick v. Federal Reserve Bank of

N.Y., 91 F.3d 379, 384 (2d Cir. 1996).

In sum, Gaul does not meet his burden under Shiring

because his proposed accommodation was unreasonable as

a matter of law. Therefore, Gaul is not a "qualified

individual" under the ADA, and AT & T's alleged failure to

investigate into reasonable accommodation is unimportant.

See Mengine, 114 F.3d at 420 (quoting Willis v. Conopco,

Inc., 108 F.3d 282, 285 (11th Cir. 1997)). Accordingly, the

district court properly granted summary judgment as to

Gaul's ADA claim.

Having concluded that Gaul's proposed accommodation

was unreasonable as a matter of law under the ADA, it

follows that his NJLAD claim must also fail. See Ensslin v.

Township of North Bergen, 275 N.J. Super. 352, 364, 646

10

A.2d 452, 458 (App. Div. 1994) (New Jersey courts

considering reasonable accommodation under NJLAD look

to case law interpreting federal law on same point) (citing

Andersen v. Exxon Co., U.S.A., 89 N.J. 483, 497 n.3, 446

A.2d 486, 493 n.3 (1982)). It also follows that plaintiff's

remaining state law claims (i.e., breach of contract, breach

of implied covenant of good faith and fair dealing, and

constructive discharge) must also fail because they too are

based on defendant's alleged failure to provide reasonable

accommodations. Accordingly, the district court properly

granted summary judgment as to plaintiff's state law

claims.

IV.

The February 21, 1997, order of the district court will be

affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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