Taylor v. Pathmark

Opinions of the United

1999 Decisions States Court of Appeals

for the Third Circuit

5-19-1999

Taylor v. Pathmark

Precedential or Non-Precedential:

Docket 97-7617

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Recommended Citation

"Taylor v. Pathmark" (1999). 1999 Decisions. Paper 138.

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Filed May 19, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 97-7617

JOSEPH B. TAYLOR,

Appellant

v.

PATHMARK STORES, INC.

On Appeal From the United States District Court

For the District of Delaware

(D.C. Civ. No. 96-cv-00337)

District Judge: Honorable Joseph J. Farnan, Jr.,

Chief Judge

Argued: February 9, 1999

Before: BECKER, Chief Judge, and McKEE, Circuit Judges

and LEE, District Judge.*

(Filed May 19, 1999)

GARY W. ABER, ESQUIRE

(ARGUED)

Heiman, Aber, Goldlust & Baker

First Federal Plaza, Suite 600

702 King Street

P.O. Box 1675

Wilmington, DE 19899

Counsel for Appellant

_________________________________________________________________

*Honorable Donald J. Lee, United States District Judge for the Western

District of Pennsylvania, sitting by designation.

MICHAEL F. KRAEMER, ESQUIRE

(ARGUED)

DEBBIE RODMAN SANDLER,

ESQUIRE

White & Williams, LLP

1800 One Liberty Place

Philadelphia, PA 19103-7395

HAL R. CRANE, ESQUIRE

Pathmark Stores, Inc.

301 Blair Road

Woodbridge, NJ 07095-0915

Counsel for Appellee

OPINION OF THE COURT

BECKER, Chief Judge.

This case arises under the Americans with Disabilities

Act ("ADA"). The plaintiff, Joseph B. Taylor, sued Pathmark

Stores, Inc. ("Pathmark") in the District Court, alleging that

Pathmark had discriminated against him on the basis of

his disability or, in the alternative, that Pathmark wrongly

regarded him as disabled. The District Court granted

judgment as a matter of law for Pathmark on both claims.

We will affirm the District Court's judgment on Taylor's

claim that he was disabled within the meaning of the ADA,

but reverse the judgment insofar as the District Court

determined that Taylor was not regarded as disabled for the

period between December 1995 and his rehiring in July

1997. In so doing, we reaffirm that, to successfully claim

that he was wrongly regarded as disabled from working, a

plaintiff need not be the victim of negligence or malice; an

employer's innocent mistake (which may be a function of

"goofs" or miscommunications) is sufficient to subject it to

liability under the ADA, see Deane v. Pocono Med. Ctr., 142

F.3d 138, 143 n.4 (3d Cir. 1998) (en banc), although the

employer's state of mind is clearly relevant to the

appropriate remedies. We recognize, however, a limited

defense of reasonable mistake where the employee is

responsible for the employer's erroneous perception and the

2

employer's perception is not based on stereotypes about

disability. Under these tests, material issues of fact remain

for resolution at trial.

Because of its structure and subject matter, the ADA is

often a difficult statute for courts and employers to

interpret and, sometimes, to follow. This case is also a

difficult one, not only conceptually but also because of the

odd (if not convoluted) factual background, punctuated by

glitches and apparent misinterpretations of medical

records, to which we now turn.

I. Factual Background

Taylor began working at Pathmark in May 1981 and was

eventually promoted to frozen food manager. In December

1991, he slipped on a piece of cellophane at work and

strained his right ankle. His doctor instructed him to rest

the ankle for ten minutes each hour, and to refrain from

walking or standing for extended periods of time. Taylor

aggravated the injury in January 1992 when he fell down a

flight of stairs. He took time off from work, and when he

returned in November 1992 he was told that the frozen food

manager post had been filled during his absence. In the

following months, he was given various light duty

assignments that accommodated his limitations. He

stocked shelves, occasionally sitting on a milk crate to do

so, and worked in the service center, which allowed him to

sit at a desk for a portion of the day. He was often allowed

to work on the "bag your own" register at which customers

bagged their groceries and he could sit on a stool. In

November 1993, Taylor had arthroscopic surgery, a

minimally invasive procedure, on his ankle.

The parties have stipulated that Taylor has a 16%

permanent disability in his right ankle. When he was

working on light-duty assignments, Taylor wore either an

air cast or a cast type shoe, and when he exceeded his

limits on standing and walking for more than fifty minutes

an hour, he used a crutch or cane. Pathmark allowed this

periodic resting and use of a crutch or cane until April 29,

1994. While accommodated in this fashion, Taylor was

productive and Pathmark's manager considered him a

problem-free employee.

3

In early March 1994, Taylor's store manager asked him

to provide an updated note from his doctor setting forth any

continuing restrictions on work assignments. His family

doctor, Dr. Moore, provided a note stating that Taylor could

continue to work, but without prolonged standing. Later

that month, without Taylor's knowledge, Pathmark's

corporate headquarters sent a request for an updated

record for Taylor to his orthopaedic specialist, Dr. Gelman.

Dr. Gelman replied, in an April 7, 1994, letter, that he had

not seen Taylor since December of 1993 but that he

believed that Taylor could return to work without any

restrictions, basing his opinion on the fact that Taylor had

not returned to see him.

Relying on Dr. Gelman's letter, Taylor's manager told him

on April 29 that he had to work a full-duty cash register for

a day. Taylor felt that he could not comply, refused, and

eventually left the store. He contacted Pathmark's workers'

compensation representative and learned for thefirst time

of Dr. Gelman's letter. He sought an examination with Dr.

Gelman, after which, on May 5, the doctor sent Pathmark

another letter stating that Taylor could engage in "full-time

work--limited standing." Pathmark's administrative offices,

however, never forwarded the letter to Taylor's manager and

he was not asked to return to work. Pathmark's internal

email suggested that there was a "glitch" in this series of

events because of Dr. Gelman's initial problematic

evaluation. Taylor's store manager likewise admitted that

Dr. Gelman's first letter was incorrect and that Dr. Moore's

note was probably more accurate, but the manager was

never given Dr. Gelman's updated note of May 5. When

Taylor called his manager about getting back on a work

schedule, his manager told him, "I don't care."

On May 27 and September 2, 1994, Pathmark sent

Taylor to Dr. Case, an orthopaedic surgeon. After the first

visit, Dr. Case wrote to Pathmark counsel that Taylor could

work with restrictions, but Pathmark did not invite him to

return to work. After the September visit, Dr. Case told

Pathmark that Taylor could return to work with an air splint.1

_________________________________________________________________

1. There is testimony in the appellate record that Case's report said that

Taylor used an air splint while working, but no testimony that Case

instructed Taylor to do so.

4

Pathmark apparently took no action for approximately one

year thereafter.

In September 1995, Pathmark's ADA Committee

evaluated Taylor and sent Dr. Moore a questionnaire asking

about Taylor's restrictions. Dr. Moore reported to the

committee on October 5, 1995, that Taylor was temporarily

subject to increased work restrictions due to an aggravation

of his ankle injury in July 1995. The form Pathmark

provided allowed him to check either "permanent" or

"temporary," and Dr. Moore checked "temporary," writing in

that the restrictions would last for six months or more.

Taylor wrote to Pathmark on December 19, 1995,

representing that his temporary restrictions had been lifted

and that he could work under his permanent limitations as

he had been doing prior to April 1994. The evidence was

that Pathmark's ADA Committee evaluated his case in late

1995, but took no action on it for approximately seven

months, for reasons that are not apparent.

Pathmark fired Taylor by letter dated May 13, 1996. The

letter, which was written by the ADA Committee, stated

that Taylor's inability to work "effectively severs your

employment relationship with Pathmark as of May 13,

1996." The letter recited that Dr. Moore's restrictions

allowed Taylor to: stand one hour at a time up to four

hours a day; walk one hour at a time not to exceed one

hour a day; lift, carry, push, and pull ten pounds

frequently, up to twenty pounds occasionally, and never

over twenty pounds; and occasionally bend, squat, climb,

and reach. The letter further stated that Taylor's

restrictions precluded crawling or repetitive pushing and

pulling of leg controls and required breaks to be taken as

necessary. The letter continued that, comparing the

restrictions with the physical requirements of the frozen

food manager job,

[t]hese restrictions on your work related activities are

such that any reasonable accommodation which

Pathmark might provide are insufficient to enable you

to function to standard in your position as a Frozen

Food Manager which regularly requires:

* Regularly lifting and carrying 25 pounds

5

* Frequently stooping, crouching and reaching

* Extended standing and walking

Furthermore, your restrictions are such that you

cannot perform the essential functions of any other

available position, all of which require extended

standing and/or walking and regular reaching. We

have been advised your restrictions are permanent.

App. at A55-56 (emphasis added).

After Taylor received this letter, he contacted Dr. Moore,

who clarified his position that Taylor had been temporarily,

but not permanently, heavily restricted and that Taylor

could work with either ten minute rest breaks per hour or

the use of a cane or crutch. Pathmark asked Dr. Moore to

fill out a new capabilities form, which he did on June 19,

1996, restating these restrictions, but Taylor was not

reinstated. There was testimony that the ADA Committee

realized that its May 13 letter was mistaken, but it never

reconsidered Taylor or looked into giving him a cashier's job

with a stool, though he could have been accommodated.

Instead, the Committee referred the matter to Pathmark's

legal department and heard no more about it. Meanwhile,

Pathmark's workers' compensation department was

insisting that he could return to work full-time. From 1994

on, Taylor had regularly contacted Pathmark, asking for

work, and his union representative had also tried to get

him back to work. After he was fired, he brought this suit.

He was rehired in July 1997, during the pendency of this

litigation, and is currently employed as a third-shift non-

foods clerk.

Taylor argues that Pathmark should have given him a job

that he could do. Pathmark's Store Operations Employment

Compliance Manual provides for reasonable accommodation

in cashier positions for people who have trouble standing

for extended periods. Pathmark's ADA Training for

Management Associates manual also suggests that stools

are reasonable accommodations for people who cannot

stand for long periods. Taylor's last store manager conceded

that when Taylor was out on disability he should have been

considered for a cashier position with a stool. Moreover,

Taylor and his vocational expert, Thomas Yohe, offered

6

testimony that the frozen food manager job requires a

significant amount of book work, sales planning, schedule

writing, looking up orders, checking bills, preparing signs,

and using a computer, all of which can be done while

sitting. This amounts to forty-five minutes to an hour of

sitting per day. Combined with sitting during Taylor's

morning, afternoon, and lunch breaks, which amount to

forty minutes per day, Taylor argues that he would be off

his feet ten minutes per hour without accommodation.

Yohe testified that Taylor's restrictions could be

accommodated in his previous Pathmark jobs, including

the frozen food manager job, with the "minor"

accommodation of allowing him to use a milk crate to sit on

or to prop up his foot.

After Taylor had presented his evidence at trial, the

District Court granted "summary judgment" for Pathmark.

It would be more accurate to state that the District Court

granted a motion under Fed. R. Civ. Proc. 50(a). Because

the District Court dismissed the case after Taylor presented

his evidence to a jury, Pathmark suggests that we should

give increased deference to the trial judge. Unsurprisingly,

Pathmark cites no authority for this proposition and, since

Taylor's claims were not in fact evaluated by his chosen

finder of fact, we disagree. At all events, Pathmark concedes

that the proper test is the standard one: We must view the

facts in the light most favorable to Taylor.

II. Was Taylor "Disabled" Under the ADA? (Was He

Substantially Limited in the Major Life Activities of

Walking and Standing?)

Taylor's first theory is that he has a "disability" under the

ADA, which covers impairments that substantially limit a

major life activity. EEOC regulations provide, and no one

here contests, that walking and standing are major life

activities. See 29 C.F.R. S 1630.2(1) App. (1996).

"Substantial limitations" are those that render an individual

(i) unable to perform a major life activity that the

average person in the general population can perform;

or

7

(ii) significantly restricted as to the condition, manner

or duration under which an individual can perform a

particular major life activity as compared to the

condition, manner or duration under which the average

person in the general population can perform that

same major life activity.

29 C.F.R. S 1630.2(j)(1) (1996). The relevant factors are (1)

the nature and severity of the impairment; (2) the duration

or expected duration; and (3) the expected or actual

permanent or long-term impact of or resulting from the

impairment. See 29 C.F.R. S 1630.2(j)(2). The impairment

must be severe when compared to the functioning of the

general population. The purpose of the ADA would be

undermined if protection could be claimed by those whose

relative severity of impairment was widely shared. See

Forrisi v. Bowen, 794 F.2d 931, 934 (4th Cir. 1986). On the

other hand, Congress expressed a strong remedial intent in

enacting the ADA, and explicitly found that approximately

forty-three million Americans were disabled as of 1990, see

42 U.S.C. S 12101(a)(1) (1998), which implies that the

definition should not be so restricted that only the most

extremely impaired are covered.

Taylor testified that he walks with a slight limp and

requires ten-minute hourly breaks when standing or

walking. His girlfriend, however, testified that he regularly

takes walks after dinner and stated that he does not

require a cane or crutch. The District Court concluded that

Taylor did not have a disability. Taylor objects that the

District Court drew incorrect inferences from his girlfriend's

testimony. She testified that Taylor takes the car out for

one-and-a-half to three hours after dinner, that she did not

know how much time he actually spent walking because

she was not with him, and that he carries a walking stick.

Thus, he argues, a jury could infer that he cannot walk

unassisted for long periods of time.

Even considering this testimony in the light most

favorable to Taylor, the court's conclusion is sensible. The

court noted that there was no testimony that Taylor stands

or walks, during the fifty minutes per hour that he can,

with any less ability than the average person. The EEOC's

regulations define a person with a walking disability as

8

someone who "can only walk for very brief periods of time."

29 C.F.R. S 1630.2(j) App; cf. Deane, 142 F.3d at 143 n.4

(regulations are entitled to substantial deference). We agree

with the District Court that fifty minutes (per hour) is not

a "very brief" period.

In Kelly v. Drexel University, 94 F.3d 102 (3d Cir. 1996),

we found that a man who limped as a result of a hip injury,

could not walk more than a mile, and had to climb stairs

slowly was not disabled. We concluded that the restrictions

on his ability to walk were "comparatively moderate," citing

several district court cases that rejected similar claims. Id.

at 106. Pathmark has also cited other cases in which

walking problems were found not to constitute covered

disabilities. See, e.g., Oesterling v. Walters, 760 F.2d 859,

861 (8th Cir. 1985) (a woman whose varicose veins

prevented her from standing or walking for long periods

was not disabled under the Rehabilitation Act's similar

definition); Penchisen v. Stroh Brewing Co. , 932 F. Supp.

671, 674 (E.D. Pa. 1996) (a woman with a metal plate in

her left ankle who could not fully flex her foot or walk with

a normal gait was not disabled), aff'd, 116 F.3d 469 (3d

Cir.), cert. denied, 118 S. Ct. 178 (1997).

Taylor argues that Pathmark only allows one break every

two hours and that his need for a break every hour makes

him function at less than fifty percent of a typical Pathmark

employee. The District Court responded that the standard

is one of comparison to the "average person in the general

population." 29 C.F.R. S 1630.2(j)(1) (1996). Taylor

presented no evidence that Pathmark employees resembled

the general population in average ability, though he did

plausibly argue that Pathmark employed people of average

ability. The more important point is that Taylor is mixing

scales of measurement. That he can only stand for half as

long as the average Pathmark employee, or average person,

is not necessarily proof that he is substantially impaired in

his ability to stand. The relevant question is whether the

difference between his ability and that of an average person

is qualitatively significant enough to constitute a disability.

Because Taylor can stand and walk for fifty minutes at a

time, and can continue for longer periods if he takes a

break every hour, he can carry out most regular activities

9

that require standing and walking, even though he may

not be able to perform Pathmark's jobs without

accommodation. We conclude that his ability to walk and

stand is not significantly less than that of an average

person.

Taylor finally argues that the employee in Kelly had no

evidence that he used any special device, cane, or crutches

to aid in walking. By contrast, Taylor needs a cane or

crutch after fifty minutes and uses a prosthetic shoe to

ease his pain and discomfort. Under our jurisprudence, the

determination whether a disability exists must be made by

evaluating a person's impairment as it affects major life

activities without the use of mitigating measures, even if

the person uses such mitigating measures in regular

activity. See Matczak v. Frankford Candy & Chocolate Co.,

136 F.3d 933 (3d Cir. 1997).2 Taylor contends that the

District Court improperly took mitigating measures into

account when determining his abilities by failing to note

that Taylor needed ameliorative footwear to maintain his

present level of mobility.

If Taylor had needed a cane or crutch to stand forfifty

minutes an hour, his argument would be persuasive. But

there is no evidence that Taylor required an assistive device

to stand or walk for at least fifty minutes an hour. If he

wanted to stand for longer, he needed a cane or crutch, but

someone like Taylor who can stand for fifty minutes

unassisted is not substantially limited in standing, and

thus his need for assistance to improve his performance

does not show that he has a disability. As for the air

cast/cast type shoe, Pathmark argues that no doctor ever

ordered him to use such devices, and that if he did so for

his own comfort that cannot prove his disability. See

Douglas v. Victor Capital Group, 21 F. Supp. 2d 379

(S.D.N.Y. 1998) (plaintiff used cane or crutches on

occasion, but there was no evidence he was medically

required to do so, and voluntary use could not meet his

burden of proof). We have not been able to find evidence in

_________________________________________________________________

2. The Supreme Court will decide this issue shortly. See Sutton v. United

Air Lines, Inc., 119 S. Ct. 790 (1999), granting cert. to 130 F.3d 893

(10th

Cir. 1997).

10

the record that a doctor ordered Taylor to use an air cast,

and we believe that occasional use of an air cast to

diminish discomfort does not raise Taylor's condition to the

level of a disability.3 Therefore we will affirm the District

Court's judgment on the issue of whether Taylor was

actually substantially limited in the major life activity of

walking.

III. Was Taylor "Regarded as" Disabled?

A person is "regarded as" having a disability if the

person:

(1) Has a physical or mental impairment that does not

substantially limit major life activities but is treated by

the covered entity as constituting such limitation;

(2) Has a physical or mental impairment that

substantially limits major life activities only as a result

of the attitudes of others toward such impairment; or

(3) Has [no such impairment] but is treated by a

covered entity as having a substantially limiting

impairment.

29 C.F.R. S 1630.2(l) (1996). Taylor argues that Pathmark

regarded him as disabled by virtue of the ADA Committee's

determination that he was too impaired to take any

Pathmark job, with or without accommodation.

The gravamen of Taylor's claim is that Pathmark

perceived Taylor as disabled based on a mistaken

interpretation of his medical records, specifically Dr.

Moore's October 1995 physical capacity evaluation, wherein

_________________________________________________________________

3. See supra note 1. The most direct evidence on this point comes from

Dr. Moore's note to Cynthia Jackson, who apparently was in charge of

authorizing Taylor's medical expenses for Pathmark's insurer. Dr. Moore

requested that Taylor be authorized to visit a podiatrist for his ankle

pain and wrote, "Hopefully, only conservative measures will be needed

such as a brace or an orthotic." Taylor has identified no further evidence

that such a visit was authorized or what came from it, and he testified

that his need for an air cast was only occasional. Under these

circumstances, we conclude that no material issue of fact exists about

his medical need for an assistive device to stand for shorter periods.

11

the doctor checked the box marked "temporary" and the

Committee responded with a letter stating "We have been

advised your restrictions are permanent." The October 1995

evaluation, which occurred after Taylor temporarily

aggravated his ankle, described severe limitations on many

important activities such as lifting and walking, limits that

were far greater than those imposed by Taylor's permanent

ankle impairment. A reasonable jury could therefore

conclude that Pathmark erroneously regarded him as

disabled. As Taylor notes, the statement in Pathmark's May

1996 letter that he was unable to perform any Pathmark

job, even with accommodation, suggests a perception of

limits that would likely constitute substantial limitation on

many major life activities. This is not a case where

Pathmark stated that he was unable to perform a particular

job; it appears to have considered him incapable of

performing a wide range of jobs, indeed, any jobs that

required significant standing, walking, lifting, or moving

about (i.e., most jobs in a supermarket).

Several cases support our conclusion that, in general, an

employer's perception that an employee cannot perform a

wide range of jobs suffices to make out a "regarded as"

claim. In Dipol v. New York City Transit Authority, 999 F.

Supp. 309, 314 (E.D.N.Y. 1998), the court found that the

plaintiff had proved a "regarded as" claim when, after

receiving information from the plaintiff's doctor, the

employer immediately placed the plaintiff on no-work

status, excluding him from all jobs. In Coleman v. Keebler

Co., 997 F. Supp. 1102, 1114 (N.D. Ind. 1998), the court

held that evidence that the defendant concluded that the

plaintiff could not perform any available jobs in a

production plant created a material issue of fact on a

"regarded as" claim. More generally, if an impairment at a

certain level of severity would constitute a disability, then it

follows that an employer who perceives an employee as

having such an impairment perceives the employee as

disabled. Cf. 29 C.F.R. pt. 1630 App., S 1630.2(j) ("An

individual who has a bad back that prevents the individual

from performing any heavy labor job would be substantially

limited in the major life activity of working because the

individual's impairment eliminates his or her ability to

perform a class of jobs.").

12

The District Court, however, rejected Taylor's "regarded

as" claim. The court reasoned:

The thrust of Plaintiff's claim . . . is based on

Defendant's failure to accommodate Plaintiff's physical

impairment. Plaintiff asserts that based on Dr.

Gelman's April 7th note, which stated that Plaintiff

could work without restrictions, Defendant demanded

on April 29, 1994 that Plaintiff perform the cashier's

job. Plaintiff contends that he could not perform the

cashier's job as requested because he was substantially

limited in a major life activity and therefore disabled

. . . . On the other hand, Plaintiff argues that he was

wrongfully "regarded as" disabled by his employer with

respect to him being employed in the frozen food

manager's job, which Plaintiff asserts he could have

done without any accommodation by the Defendant.

. . .

Essentially, the Plaintiff is asking the Defendant to

treat him as disabled under the ADA if he is assigned

to a job other than frozen food manager. In sum, when

Plaintiff was initially injured, he provided his medical

restrictions to the Defendant. Plaintiff worked for a

period of fifteen months asserting these restrictions

and Defendant accommodated him. Subsequently,

when Defendant learned, from a doctor's note, that

Plaintiff was purportedly no longer disabled, Defendant

regarded Plaintiff as able, and requested that Plaintiff

perform a job affording no accommodation for his

impairment. Plaintiff then asserted that he was

disabled. Plaintiff now claims that he was not disabled

and should not have been regarded as such by the

Defendant in the context of Plaintiff 's desire to be

assigned as a frozen food manager.

Plaintiff proposes an apparently impossible situation

for an employer. On the one hand, an employer must

acknowledge the medical restrictions needed by an

employee, while on the other hand it must ignore those

same medical restrictions when the employee believes

the restrictions might affect his assignment to a

desired position.

13

Slip op. at 14 (citations omitted).

We will first consider the District Court's reasoning about

the conflicts between Taylor's two claims and the time

frame of his "regarded as" claim, and then turn to a

broader analysis of "regarded as" protection under the ADA.

A. Allegedly Inconsistent Claims

We conclude that this set of facts was insufficient to

support a directed verdict for the defendant. The District

Court concluded that Taylor was proffering both a theory

that he was disabled and a theory that he was

wrongly regarded as disabled, which theories undercut one

another. However, a plaintiff may plead in the alternative,

and our caselaw finds no difficulty with pairing the two

claims in one complaint. In Olson v. General Electric

Astrospace, 101 F.3d 947 (3d Cir. 1996), we expressed no

discomfort in denying summary judgment on a "regarded

as" claim where the plaintiff had also alleged actual

disability, although "the evidence that was apparently

offered to demonstrate [his] fitness as an employee

ironically establishes that he was not substantially limited

in a major life activity." Id. at 953. Similarly, in Arnold v.

United Parcel Service, Inc., 136 F.3d 854, 860, 862 (1st Cir.

1998), the court held that there is no conflict in bringing an

actual disability and a "regarded as" claim together. See

also Koblosh v. Adelsick, No. 95C5209, 1996 U.S. Dist.

LEXIS 17254, at *15 (N.D. Ill. Nov. 20, 1996) (same).

The possibility that a plaintiff will bring both an actual

disability and a "regarded as" claim is simply one allowed

by the law; its possible abuse must be checked by the

standard measures for deterring frivolous or bad-faith

complaints. Nor is Taylor's position intrinsically

contradictory, as he could have an impairment (whether or

not it rose to the level of a disability) that could actually be

accommodated, despite Pathmark's perception that his

disability was too severe to accommodate.

At all events, we disagree with the District Court's

description of Taylor's claims. Taylor did not claim that he

was "not disabled" with respect to the frozen food manager

job, as the court suggested; he claimed that the job's

requirements did not interact with his disability in a way

14

that prevented him from doing the job or that required

accommodation (beyond allowing him to rest his leg on a

milk crate from time to time, a measure that may not even

technically be an accommodation and that we discuss

further infra). The distinction is highlighted by the example

of a deaf person who claims that he is qualified for a job

that involves converting handwritten notes into word

processing files: He would not be "not disabled" with

respect to the job, because disability is not a job-specific

determination, but the job would not be affected by his

disability.

The District Court also believed that Taylor was putting

Pathmark in an impossible situation because Pathmark

would be potentially liable if it accommodated Taylor or if it

refused to accommodate him. However, Pathmark would

not be liable for accommodating Taylor. It is only liable if it

wrongly regarded him as so disabled that he could not work

and therefore denied him a job.

The accommodations that Pathmark provided or might

have provided are not part of Taylor's "regarded as" claim.

Taylor does not attempt to rely on Pathmark's pre-April

1994 accommodations of his condition to prove his

"regarded as" claim, nor should he. An employer may

decide to accommodate people who are not "disabled" under

the ADA. If the District Court is concerned about the

possibility of jury confusion on this issue, it might be

appropriate to instruct the jury that Pathmark's voluntary

accommodations, which are apparently formalized and

routinized in Pathmark's employment manuals, are not

evidence of a perception of disability.

B. The Time Frame of the "Regarded as" Claim

We agree with the District Court that Pathmark regarded

Taylor as able to work on April 29, 1994, but that is not

material to Taylor's "regarded as" claim. Taylor's claim is

that Pathmark erroneously regarded him as entirely and

permanently unable to work at any job after it received Dr.

Moore's evaluation in September 1995; his "regarded as"

claim must be limited to the period following that

evaluation. Taylor claims that he was not, in fact, so

disabled that he could not perform any Pathmark jobs.

15

Taylor notes that he provided Pathmark with a letter on

December 19, 1995, that stated that his restrictions as of

December 1995 were the same as they had been during the

November 1992-April 1994 period when he was working at

Pathmark. The temporary July to December 1995

restrictions had been lifted. A reasonable factfinder could

conclude that Taylor was not so impaired that he could not

work at all after that point, and therefore that Pathmark's

misunderstanding of his condition prevented him from

getting work at Pathmark for some period after December

19, 1995. Under this scenario, Taylor had a viable

"regarded as" claim after that date.

C. Liability for Mistakes

What a "regarded as" plaintiff must do to put the

employer on notice that its perception is erroneous is an

extremely difficult question. Pathmark in effect argues that:

(1) until Taylor provided definitive notice of his ability to

work and corrected Pathmark's belief, it cannot be held

liable for considering him unable to work; and (2) his

provision of notice proves that Pathmark correctly

understood his condition after that point. We deal with

Pathmark's second claim infra Section III.E, while in this

section we make clear that Pathmark has the initial

responsibility to evaluate employees correctly.

Pathmark argues that reliance on information given by

the plaintiff (or the plaintiff's agent) cannot found an ADA

"regarded as" cause of action. As Pathmark puts it, "For as

long [as] Dr. Moore's report led Pathmark to believe that

Taylor required a sedentary position, Pathmark was entitled

to act accordingly." Pathmark's broad assertion cannot

carry the day under the peculiar facts of this case. In most

"regarded as" cases, it is likely that information on an

employee's abilities comes from the employee or his agent,

but the source of the information will not necessarily be

determinative. The fact is that Dr. Moore's report labelled

Taylor's restrictions "temporary," not permanent. At all

events, Taylor never provided Pathmark with the conclusion

that he was substantially limited in a major life activity

such that there were no jobs at Pathmark that he could

perform, with or without accommodation. This case is

dominated by miscommunications and misinterpretations,

16

and one of the points of "regarded as" protection is that

employers cannot misinterpret information about an

employee's limitations to conclude that the employee is

incapable of performing a wide range of jobs.

We find the cases Pathmark cites on reasonable reliance

to be inapposite. In Wooten v. Farmland Foods, 58 F.3d 382

(8th Cir. 1995), for example, the court held that the

evidence of an employer's perception of an employee's

abilities based on a doctor's note provided by the employee

was insufficient to establish a "regarded as" claim. The

court held that Wooten's employer's perceptions were not

based on stereotype or myth but on a doctor's written

restrictions. But the law in this circuit is that a"regarded

as" plaintiff can make out a case if the employer is

innocently wrong about the extent of his or her impairment:

Although the legislative history indicates that Congress

was concerned about eliminating society's myths, fears,

stereotypes and prejudices with respect to the disabled,

the EEOC's Regulations and Interpretive Guidelines

make clear that even an innocent misperception based

on nothing more than a simple mistake of fact as to

the severity, or even the very existence, of an

individual's impairment can be sufficient to satisfy the

statutory definition of a perceived disability. Thus

whether or not [the defendant] was motivated by myth,

fear or prejudice is not determinative of [the plaintiff 's]

"regarded as" claim.

Deane, 142 F.3d at 144 (citation omitted).

Similarly, Riemer v. Illinois Department of Transportation,

148 F.3d 800 (7th Cir. 1998), sustained a "regarded as"

claim where the employer's misperception about the effects

of the plaintiff 's asthma, based on a doctor's report, led it

to exclude the plaintiff from an entire class of jobs, and in

Johnson v. American Chamber of Commerce Publishers, Inc.,

108 F.3d 818 (7th Cir. 1997), the court wrote, "If for no

reason whatsoever an employer regards a person as

disabled--if, for example, because of a blunder in reading

medical records, it imputes to him a heart condition he

never had--and takes adverse action, it has violated the

statute . . . ." Id. at 819; see also Dipol, 999 F. Supp. at 314

17

(the fact that the employer, after receiving information from

a doctor, immediately placed the plaintiff on no-work status

made out a "regarded as" claim); Mendez v. Gearan, 956 F.

Supp. 1520, 1525 (N.D. Cal. 1997) (employer's mistaken

perception that a temporary impairment was permanent

could found a "regarded as" claim).4

We acknowledge the force of Pathmark's argument that it

relied on information supplied by Taylor's doctor in

concluding that it had no job available that met his

restrictions during the period from October 1995 to

December 1995 (Taylor informed Pathmark that the severe

restrictions had been lifted on December 19). Taylor has

not disputed that he did, in fact, have those temporarily

heightened restrictions after the aggravation of his ankle

injury. We conclude that a directed verdict as to that period

was proper, because he has not disputed Pathmark's claim

that restrictions of such severity precluded him from any

Pathmark jobs, even with accommodation.

Pathmark further argues that it was reasonable to rely on

Dr. Moore's first evaluation until June 1996, when Dr.

Moore filled out an updated questionnaire.5 We cannot,

however, say that Pathmark's reliance on Dr. Moore'sfirst

report necessarily excuses it entirely from liability. An

employer can rely on an employee's information about

restrictions, but it has to be right when it decides that

those restrictions are permanent and that they prevent the

employee from performing a wide class of jobs, as opposed

_________________________________________________________________

4. Dotson v. Electro-Wire Products, Inc., 890 F. Supp. 982 (D. Kan. 1995),

another case cited by Pathmark, is distinguishable. In that case, the

physician's note at issue did not describe an impairment that could

reasonably be thought to substantially limit the plaintiff in a major life

activity. On receipt, the defendant did not change the plaintiff 's job

duties or take other actions to indicate that it considered her incapable

of doing the general class of job. See id. at 991. In contrast, Pathmark

sent Taylor a letter saying that his restrictions were permanent and that

he was fired.

5. Pathmark characterizes this second questionnaire as a "changed"

diagnosis. This is arguably a critical misdescription, since Taylor

contends that Dr. Moore's restrictions were always temporary, as he

indicated on the first form, and so the second form simply reflected the

fact that the temporary restrictions had been lifted.

18

to one particular and limited job. An employer who simply,

and erroneously, believes that a person is incapable of

performing a particular job will not be liable under the

ADA. Liability attaches only to a mistake that causes the

employer to perceive the employee as disabled within the

meaning of the ADA, i.e., a mistake that leads the employer

to think that the employee is substantially limited in a

major life activity.

Pathmark argues that imperfection in its internal

procedures--apparently a communication gap between the

ADA Committee and those responsible for making an

employment decision about Taylor--should not lead to ADA

liability. Yet if the relevant decisionmakers wrongly believed

that Taylor was completely unable to work because of

miscommunication within Pathmark, the ADA puts on

Pathmark the burden of correcting the problem, rather

than leaving Taylor out in the cold. Cf. Deane, 142 F.3d at

149 (suggesting that informal cooperation and

communication to correct mistakes is appropriate in a

"regarded as" situation). Taylor offered Pathmark updated

information on his condition on December 19, 1995, and he

had Dr. Moore send further information after he received

Pathmark's May 1996 letter; therefore, we cannot say that

he is unarguably responsible for the misunderstanding.

Except for the limited period noted above, judgment as a

matter of law for Pathmark is inappropriate, because a

reasonable jury could find that Taylor was not responsible

for the error. In that case, Pathmark could be liable, even

if its mistake were otherwise innocent. But on remand,

Pathmark has a possible defense of reasonability, which we

describe in greater detail in the next section.

D. A Limited Reasonability Defense

Because the ADA imposes extensive requirements on

employers and covers a broad range of conditions, new

puzzles seem to arise from every case. Deane announced

our conclusion that employer mistakes can lead to

"regarded as" liability. The question then becomes: What

limits, if any, are there to this principle? There are no clear

answers in our precedent, the statute, the legislative

history, or the EEOC's interpretive guidelines. We must,

19

however, answer the question to resolve this case. We

believe that guidance can be found in the general logic of

the ADA, which requires an interactive relationship between

employer and employee, and concomitantly requires an

individualized evaluation of employees' impairments. See

Taylor v. Phoenixville Sch. Dist., No. 98-1273, ___ F.3d ___,

1999 WL 184138 (3d Cir. Apr. 5, 1999).6

While prejudice is not required for a successful"regarded

as" claim, we recognize that the ADA has as a major

purpose the protection of individuals who are subject to

stereotypes about their abilities. An employer who regards

a kind of impairment--epilepsy, for example--as

disqualifying all people affected by the impairment for a

wide range of jobs is thus not entitled to a defense of

reasonable mistake; under the ADA, it is the employer's

burden to educate itself about the varying nature of

impairments and to make individualized determinations

about affected employees. However, there is no evidence in

this case that Pathmark decisionmakers were infected with

stereotypes or prejudice against the disabled. In situations

such as this one, which do not involve prejudice, we think

that a limited defense best serves the aims of the ADA: If

the employer is factually mistaken about the extent of an

employee's impairment, and the employee or his agent is

responsible for the mistake, the employer is not liable

under the ADA.7

_________________________________________________________________

6. We are also influenced by the Supreme Court's decisions in Faragher

v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries,

Inc.

v. Ellerth, 524 U.S. 742 (1998). In those cases, the Court determined

that general principles of agency law justified imposing Title VII

liability

on employers for sexual harassment committed by supervisors, but

defined an affirmative defense to liability in order to give employers

incentives to create effective anti-harassment programs. The details of

the defense were dictated by concerns for logic and equity, not by Title

VII's explicit provisions. We take the same path here.

7. We note that it will not always be immediately clear whether a

particular physician is an employee's agent. For example, whereas in

Delaware, a worker seeking workers' compensation has a right to select

an independent physician, see 19 Del. Code Ann. S 2323 (1998), the

Pennsylvania Workers' Compensation Act allows an employer to

establish a list of designated physicians or health care providers, and an

20

We emphasize that it is not reasonable for an employer to

extrapolate from information provided by an employee

based on stereotypes or fears about the disabled, and we

think that the distinction between the effects of a type of

impairment and an impairment's extent adequately

captures the distinction: A belief that anyone with bipolar

disorder or HIV infection is substantially limited in a major

life activity is a conclusion about the effects of the

impairment and only secondarily about the particular

employee. An employer with such a belief is failing to make

an individualized determination, as the ADA requires, and

thus acts at its peril. If an employer believes that a

perceived disability inherently precludes successful

performance of the essential functions of a job, with or

without accommodation, the employer must be correct

about the affected employee's ability to perform the job in

order to avoid liability; there is no defense of reasonable

mistake. Any other outcome would defeat the ADA's

attempt to eradicate what may be deeply rooted and

seemingly rational presumptions about the abilities of the

disabled.

By contrast, a mistake about the extent of a particular

employee's impairment made in the course of an

individualized determination is further from the core of the

ADA's concern, and a reasonability defense adequately

protects employees' interests in not being erroneously

regarded as disabled. We reaffirm that an employer is liable

for mistakenly regarding an employee as disabled, unless

the employer's perception is based on the employee's

_________________________________________________________________

employee may be required to visit one of those on the list in order to

maintain a workers' compensation claim, see 77 Pa. Stat. Ann. S 531(1)(I)

(1998). An employer's employment, ownership, or control of such

physicians or health care providers must be disclosed in order for them

to be placed on the list. Even if the providers on the list are

independent,

if the employer designates them and relies on their judgments, the onus

may well be on the employer, rather than the employee, to correct their

mistakes. It is also possible that the list will consist of independent

providers negotiated by the employees' labor union and the employer.

See 77 Pa. Stat. Ann. S 1000.6(a)(3) (1998). We express no opinion on all

these agency issues, which are not present here and will have to be

resolved on a case-by-case basis.

21

unreasonable actions or omissions. The limited exception to

liability for mistakes can be expressed as follows: If an

employer regards a plaintiff as disabled based on a mistake

in an individualized determination of the employee's actual

condition rather than on a belief about the effects of the

kind of impairment the employer regarded the employee as

having, then the employer will have a defense if the

employee unreasonably failed to inform the employer of the

actual situation.8

This rule is consistent with our decision in Deane, in

which we emphasized the employer's failure to take

reasonable steps to learn the true extent of the plaintiff 's

impairment. See Deane, 142 F.3d at 145. In Deane, we

found a genuine issue of material fact as to whether the

plaintiff had been perceived as disabled where the record

documented confusion among the relevant decisionmakers

as to the extent of the plaintiff 's physical impairment. See

Deane, 142 F.3d at 145. Pathmark attempts to distinguish

Deane by noting that the defendants in that case relied on

a short phone conversation with the plaintiff to conclude

that she could not perform any available job. The Deane

court noted that the defendants did not evaluate the

plaintiff, contact her physician, or independently review her

medical records, but relied on one phone conversation with

her. See Deane, 142 F.3d at 145. By contrast, Pathmark

relied on Dr. Moore's medical report.

The Deane facts do not define the outer limits of liability.

Pathmark apparently made a significant error in treating

_________________________________________________________________

8. We recognize that there is a continuum of perceptions and that there

will be difficult cases, but we think that our formulation provides

appropriate guidance. For example, an employer who is informed that a

particular individual has epilepsy might overestimate the limiting effects

of that individual's epilepsy because of a general perception about the

severity of epilepsy. If the employer mistakenly overestimates the degree

of a person's impairment based on perceptions about the nature of the

impairment, it is not basing its decision on an individualized evaluation.

Moreover, the employer's defense would fail in such a case because the

employee would have done nothing unreasonable in informing the

employer of her condition. The employer should seek further specific

information about the extent of the employee's impairment before it

concludes that the employee is disabled.

22

Taylor's temporary restrictions as permanent. Taylor also

offered evidence that Pathmark did not engage in a process

of communication and cooperation, as we counseled

employers to do in Deane. See id. at 149.9 Additionally,

Pathmark argues that Taylor acted unreasonably under the

circumstances: He waited until after the ADA Committee

made its decision to have his doctor submit a new report.

However, Taylor did not know until the May letter that

Pathmark considered him permanently unable to work, and

he did communicate with Pathmark in December 1995,

approximately five months before he was fired, about his

reduced restrictions.

While Pathmark argues that Taylor bears the "lion's

share" of responsibility for any miscommunication that

occurred, there is evidence to the contrary. Taylor appears

to have consistently sought reinstatement. Pathmark's own

electronic mail suggests that his saga included"glitches."

Pathmark waited approximately seven months after the

ADA Committee considered his case to send him notice that

he was terminated, apparently because of an often-

postponed meeting of counsel. The ADA Committee itself

did not meet on Taylor's case for one year after Pathmark's

doctor last examined him, which constitutes a significant

delay. Moreover, the record reflects that an outside

consultant advised Pathmark that "sharp disparities"

between Taylor's self-report and Dr. Moore's evaluation led

her to "strongly advise that an attempt be made to resolve

the discrepancies."

While there are no fixed rules for what an ADA plaintiff

must do to correct an employer's expressed misperception,

we think that a jury could find that Taylor did not act

unreasonably in these circumstances and that Pathmark

was responsible for the misunderstanding. Reasonability is

_________________________________________________________________

9. Pathmark also seeks to distinguish Deane by noting that there was a

factual dispute in that case as to whether lifting was an essential

function of the job, and there is no such dispute here. But that question

goes to a totally different element of the plaintiff 's case, which is

whether the plaintiff is qualified to perform the essential functions of

the

job. Taylor is not saying that Pathmark was wrong about the job

description; he is arguing that Pathmark was wrong about him, at least

after December 1995.

23

a fact-specific test, and, of course, the employee must have

reason to know of the basis of the employer's decision

before he can unreasonably fail to correct a mistake. This

rule will encourage communication between employer and

employee, in the same way that the interactive process for

determining reasonable accommodations does. See Taylor,

___ F.3d at ___ (discussing the requirements of the

interactive process).

E. Actual Causation

Pathmark argues that it never regarded Taylor as

disabled. It states that, when Dr. Moore gave it updated

information in June 1996, it then understood that Taylor's

restrictions were no longer as serious as they had

previously been. Arguably, Pathmark simply decided not to

take Taylor back, even knowing that he could work, until

July 1997.10

Taylor responds that we cannot simply take Pathmark's

word that it knew he was not disabled but refused to act on

that information, since Taylor was never privy to its "secret

thought processes." In this posture, Taylor's argument is

persuasive. If we were to accept Pathmark's argument, a

plaintiff 's attempts to disabuse an employer's

misperceptions about his disability could be used to

eviscerate a "regarded as" claim; this would encourage

potential plaintiffs to avoid communicating with employers

and begin litigation that might otherwise be avoided.

Particularly given the reasonability defense set forth in the

previous section, we think that Pathmark cannot rely solely

on Taylor's communications with it to prove that Pathmark

did not regard him as disabled after June 1996.

We note in this regard that the lack of internal

communication, to which Pathmark appeals when asking

us to excuse its reliance in 1994 on the various conflicting

doctors' notes, could also have left Pathmark with a

_________________________________________________________________

10. If the contention were that Pathmark used Taylor's disability as a

pretext for ridding itself of an employee with seniority under the union

collective bargaining agreeement, Taylor would not have a successful

claim that he was regarded as disabled. The ADA prohibits

discrimination, not action taken using discrimination as a pretext.

24

continuing erroneous belief about Taylor. The ADA

Committee, by its member's own testimony, never learned

why Taylor was not accommodated and rehired, and a

reasonable jury could conclude that the relevant Pathmark

decisionmakers--apparently Pathmark counsel, in this case

--continued to regard Taylor as disabled.

F. Remaining Issues

Pathmark also argues that Taylor never proved that there

was a job that he could do that was open during the

relevant time period. As Pathmark points out, it has no

duty to create a special job for a disabled person. See

EEOC Technical Assistance Manual at 90.0530 (an

employer is not required to create a new job or bump an

employee from an existing job as a reasonable

accommodation); cf. Shiring v. Runyon, 90 F.3d 827 (3d Cir.

1996) (reaching the same result under the functionally

identical Rehabilitation Act). Specifically, Pathmark argues

that Taylor never proved that there was an available frozen

food manager position during the relevant period; his old

job was filled before he returned in 1992, and nothing in

the record shows that there was a vacancy thereafter.

Unless there was a frozen food vacancy, Pathmark

persuasively reasons, there can be no causal connection

between Pathmark's perception of Taylor's abilities and its

failure to give him the frozen food job. Taylor responds that

he did not pursue the frozen food job more aggressively

because his union representative was told that he was

going to be put back to work. This is an issue of fact to be

resolved on remand.

Taylor also suggests that he would have wanted to be

considered for a cashier job, and there apparently were

cashier vacancies for which the ADA Committee could have

considered him. Pathmark's own ADA manuals suggested

that cashier jobs did not require extended walking and

standing. Furthermore, under the ADA the employer may

be required to participate with a covered employee to

identify a vacant position that the employee can perform, as

employees may otherwise lack the ability to identify such

positions. See Taylor, ___ F.3d at ___, slip op. at 35-36;

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

Therefore, there is at least a genuine and material issue as

25

to whether Pathmark would have had a position for Taylor

in 1996.

If Taylor prevails, the District Court might have to decide

in the first instance whether a "regarded as" plaintiff is

entitled to accommodation even though he is not disabled.

We have yet to resolve this issue. On the one hand, the

statute does not appear to distinguish between disabled

and "regarded as" individuals in requiring accommodation.

On the other, it seems odd to give an impaired but not

disabled person a windfall because of her employer's

erroneous perception of disability, when other impaired but

not disabled people are not entitled to accommodation. See

Deane, 142 F.3d at 149 n.12.

The debate over accommodation has heretofore focused

on what constitutes a "reasonable accommodation," not on

the definition of "accommodation" vel non. In its natural

meaning, an "accommodation" would seem to be some

change in the way the employer normally requires or allows

the job to be done.11 If the employer routinely allows

employees to perform a job in one of several ways and an

employee chooses one of those ways, perhaps in order to

alleviate an impairment that does not rise to the level of a

disability, then there would not seem to be any

"accommodation" involved.

In this case, the requested "accommodation" is the use of

a milk crate to sit on while stocking lower shelves. This

may or may not be a true accommodation, and it might

therefore be unnecessary to reach the difficult question of

entitlement to accommodation. See App. at A256

(vocational rehabilitation specialist testified that "I believe

there would be little or no real accommodation necessary"

_________________________________________________________________

11. Webster's Third New International Dictionary defines

"accommodation" as, inter alia, "something that is supplied for

convenience or to satisfy a need," "the provision of what is needed or

desired for convenience," or "adaptation, adjustment." Webster's Third

New International Dictionary 12 (1966). The last definition seems most

appropriate to the context of the ADA. None of these definitions would

make the standard conditions of a workplace "accommodations," as

preexisting conditions or practices would not be "supplied" or "provided"

to take account of an employee's disability.

26

for the frozen food job); id. at A257-58 (reaching the same

conclusion about stock jobs). Pathmark's representative

testified that use of a milk crate created "safety issues," but

this was called into question on cross-examination, and

Taylor testified that he used a milk crate to do his job for

fourteen months without objection from Pathmark.

Moreover, Taylor's expert, Yohe, testified that the use of

milk crates was standard in supermarket stocking

generally. There is thus a material issue of fact as to

whether use of a milk crate was a standard way to perform

stocking duties at Pathmark.

Furthermore, even if use of a milk crate is an

accommodation and Taylor is not entitled to

accommodation, he may well be entitled to other forms of

relief, such as injunctive relief and damages, as well as

attorney's fees, and so the accommodation question is not

critical to the success of his claim. See Deane, 142 F.3d at

149 n.12.

IV. Conclusion

This factually complex case presents us with novel issues

under what may be the most difficult part of a difficult

statute. Adhering to our precedent that mistakes may lead

to liability under the ADA, we hold that, in this case, a jury

could find Pathmark responsible for its mistaken

impression of Taylor's abilities, and that a jury could also

find a causal link between Pathmark's mistake and its

failure to rehire Taylor in one of his former positions.

However, Taylor does not suffer from an actual disability.

For the foregoing reasons, we will affirm the judgment of

the District Court on Taylor's actual disability claim, affirm

it on Taylor's "regarded as" claim from September 1995 to

December 19, 1995, and reverse it on the "regarded as"

claim for the period following December 19, 1995.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

27