Taylor v. Phoenixville Sch Dst

Opinions of the United

1999 Decisions States Court of Appeals

for the Third Circuit

4-5-1999

Taylor v. Phoenixville Sch Dst

Precedential or Non-Precedential:

Docket 98-1273

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1999

Recommended Citation

"Taylor v. Phoenixville Sch Dst" (1999). 1999 Decisions. Paper 89.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/89

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1999 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Filed April 5, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 98-1273

KATHERINE L. TAYLOR,

Appellant

v.

PHOENIXVILLE SCHOOL DISTRICT

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 96-cv-08470)

District Judge: Honorable J. Curtis Joyner

Argued December 17, 1998

Before: SLOVITER and COWEN, Circuit Judges and

RODRIGUEZ,* District Judge

(Filed April 5, 1999)

Joseph A. Ryan, Esq. (Argued)

13 Paoli Court

Paoli, PA 19301

Counsel for Appellant

_________________________________________________________________

*Honorable Joseph H. Rodriguez, U.S. District Judge for the District of

New Jersey, sitting by designation.

Michael I. Levin, Esq. (Argued)

Michael I. Levin & Associates

1800 Byberry Road

1402 Masons Mill Business Park

Huntington Valley, PA 19006

Counsel for Appellee

OPINION OF THE COURT

COWEN, Circuit Judge.

Katherine Taylor brought suit under the Americans with

Disabilities Act of 1990 (ADA), 42 U.S.C. S 12101 et seq.,

and the Pennsylvania Human Relations Act (PHRA), 43

Pa.Cons.Stat.Ann. S 951 et seq., alleging that her former

employer, the Phoenixville School District, failed to provide

her reasonable accommodations for her mental illness. The

District Court granted summary judgment for the school

district, reasoning that Taylor's mental illness, bipolar

disorder, or manic depression as it is sometimes called, did

not qualify as a disability under the ADA. Alternatively, the

District Court held that even if Taylor did have a disability,

the only accommodation she specifically requested, transfer

to another position, was not possible and, consequently,

she was not an otherwise qualified individual with a

disability. We will reverse and remand for further

proceedings.

I

Before she was terminated on October 28, 1994,

Katherine Taylor had worked for twenty years as the

principal's secretary at the East Pikeland Elementary

School in the Phoenixville School District. Prior to the fall

of 1993, Taylor had not received a single disciplinary notice

from any of the various principals she worked with over the

years, and when formal evaluations were instituted in the

1991-92 school year, she received high praise.

Trouble began after Taylor suffered the onset of bipolar

disorder in late August of 1993, regrettably during the first

2

full week that a new principal, Christine Menzel, assumed

her duties at East Pikeland. While Taylor was at work

during that week, she began acting strangely, alarming

Menzel and Linda Ferrara, the school district's

administrative assistant for personnel. Menzel and Ferrara

were so disturbed by Taylor's behavior that they doubted

Taylor's capacity to leave on a train by herself and had

someone at the school district contact Taylor's son, Mark

Taylor. He soon drove his mother to Coastal Plain Hospital,

a psychiatric institution in Rocky Mount, North Carolina,

where she was admitted as an in-patient on August 31,

1993.

Hospital records indicate that Taylor had become manic

and was increasingly agitated and psychotic. According to

the records, Taylor hid herself at the train station, believing

that someone was after her, and tried to disguise herself by

covering her head with a scarf. On the car ride from

Pennsylvania to the hospital, she was delusional and

announced that the car was being escorted by state

troopers and helicopters. She also claimed that her son's

boss was after him and that there were many people on the

highway who were "firefighters" who were trying to protect

her. The hospital report noted that Taylor did not have any

insight into the severity of her condition and believed she

was being admitted due to "acute stress." The school

district's own expert, Dr. Rieger, agreed that during Taylor's

hospitalization, she "clearly had paranoid delusions" and

was hyperactive and psychotic.

Taylor was treated by two psychiatrists at the hospital

who diagnosed her illness as bipolar disorder and treated

her with lithium carbonate and an antipsychotic drug,

Navane, when lithium alone was insufficient. Once Taylor's

symptoms were brought under control by the combination

of drugs, she was discharged on September 20, 1993, and

her care was taken over by Dr. Louise Sonnenberg, a

psychiatrist in Phoenixville, Pennsylvania. Since her

discharge from the hospital, Taylor has continued to take

lithium, see Dr. Sonnenberg, and receive the necessary,

periodic blood tests.1

_________________________________________________________________

1. One widely-used text explains that: "Because lithium has an extremely

narrow therapeutic range, blood levels of the drug must be closely

3

Taylor's son stated in an affidavit that during his

mother's leave of absence, he had numerous phone

conversations with Ferrara in which he explained that his

mother would be absent from work because she had been

diagnosed with bipolar disorder and required

hospitalization. Mark Taylor also asserted in his affidavit

that during a phone call on October 8, one week before Ms.

Taylor resumed working, he told Ferrara that due to Ms.

Taylor's bipolar disorder, she "would require

accommodations when she returned to work." The affidavit

adds that he provided Ferrara with the information he

received from his mother's doctors "including diagnosis and

treatment information and medications." Coastal Plain

Hospital itself sent a letter to the school district on

September 13, 1993, identifying one of Taylor's physicians

and providing a phone number to address any additional

questions the school district might have.

According to Taylor, Ferrara did eventually contact one of

her treating physicians. Ferrara's own handwritten notes

show that she attempted to obtain copies of Taylor's

records from Coastal Plain Hospital and planned to speak

to at least one of Taylor's doctors. The school district had

_________________________________________________________________

monitored. The occurrence and intensity of side effects are, in most

cases, directly related to plasma concentrations of lithium... The main

toxic effects involve the gastrointestinal tract, the kidneys, the

thyroid,

the cardiovascular system, the skin, and the nervous system." Robert M.

Julien, A Primer of Drug Action, 8th ed., W.H. Freeman & Co., at 229-30

(1998). The Physicians' Desk Reference, 53rd ed., Medical Economics

Co., at 2750 (1999) likewise states that: "Lithium toxicity is closely

related to serum lithium levels and can occur at doses close to

therapeutic levels." Both authorities state that when the amount of

lithium in the blood is near and above the therapeutic range, side effects

can include nausea, vomiting, abdominal pain, slight tremor, lethargy,

impaired concentration, dizziness, slurred speech, ataxia, muscle

weakness, and nystagmus. Julien adds that memory problems and

weight gain are also frequent complaints with continued treatment. As

plasma levels rise higher, toxic effects include muscle rigidity, coma,

renal failure, cardiac arrhythmias, and death. Blood levels can fluctuate

for a variety of reasons. For example, Julien notes that "when a patient

lowers his or her salt intake or loses excessive amounts of salt (such as

through sweating), lithium blood levels rise and intoxication may

inadvertently follow." Id. at 228.

4

other contact with Taylor's doctors because before Taylor

was permitted to return to work, the school district

required her to submit a note from Dr. Sonnenberg saying

that Taylor was no longer disabled. Even prior to Mark

Taylor's October 8th phone call, Ferrara sent a letter to the

school district's superintendent which stated that:

Mrs. Taylor has been released from the Coastal Plain

Hospital in North Carolina and her son will be picking

her up this coming weekend to bring her back to

Pennsylvania. She will be receiving out-patient care in

Phoenixville through the Phoenixville Psychiatric

Associates. They will monitor her Blood Lithium [sic]

levels. It was stressed that she must maintain and

continue her medication. He felt, as well as the doctor,

that the first week should be easing her transition back

into the work place.

App. vol. I at 80.

A notation on the letter indicates that a copy was

forwarded to Menzel. However, Menzel has submitted an

affidavit denying that she saw the memo and asserting that:

"I did not learn the specifics of the Plaintiff's alleged

condition (i.e., bipolar disorder) until after reading a

newspaper article describing her filing of the current

lawsuit." App. vol. II at 2. Ferrara has also submitted an

affidavit asserting that "at no time was I or anyone else at

the School District aware of Plaintiff's alleged diagnosis of

bipolar disorder or the details or frequency of any

treatments she may have been receiving after returning

from Coastal Plain until after the current lawsuit was filed."

App. vol. II at 50.

After Taylor provided the note from Dr. Sonnenberg, she

resumed work on October 15, 1993 although, as Ferrara's

letter indicated, Taylor was only authorized to work half

days for the first week. Prior to her hospitalization, Taylor

had received high praise for her performance. In June of

1993, about two months before Taylor's hospitalization, the

outgoing principal, Dr. Herron, wrote that Taylor"excels in

all aspects" of her job, was a "credit to our school," and "a

tribute to excellence." App. vol. I at 86. In a subsequent

letter of recommendation, Dr. Herron again praised Taylor's

performance without reservation and stated that:

5

As a secretary, Mrs. Taylor served me and the entire

school family exceeding[ly] well... I felt comfortable in

leaving the building, sometimes for an extended

amount of time, because of Mrs. Taylor's skills. Indeed,

at such times, Mrs. Taylor carried on the full functions

of the school as if she herself was capable of running

the functions of the building without supervision, and,

indeed, in such cases, she was entirely capable of

doing so.

App. vol. I at 87.

Almost immediately upon Taylor's return to work,

Menzel, following Ferrara's advice, began documenting

errors Taylor committed. The errors were then compiled

into a bullet-format list, the list was presented to Taylor,

and soon thereafter Menzel and Ferrara would call Taylor

into a disciplinary meeting and offer her a chance to rebut

the charges. A representative from Taylor's union also

attended although it is unclear to what extent the

representative participated.

Taylor's first disciplinary notice, dated November 9, 1993,

listed errors as early as October 19, 1993, only four days

after Taylor's return to work and while she was still

working part time. Eight more disciplinary notices followed,

dated 11/23/93, 12/9/93, 1/6/94, 2/1/94, 3/11/94,

4/22/94, 9/2/94, and 10/27/94, the last arriving shortly

before Taylor was terminated. Over the course of the

disciplinary meetings, Taylor disputed some charges and

tried to explain others, but as 1994 wore on, Menzel

documented many errors that Taylor did not contest, and

the interpersonal friction between Menzel and Taylor

continued unabated. Disciplinary notices during this period

list problems such as missed deadlines, mishandling of

records, typing errors, interpersonal conflicts, and

undelivered messages.

Part of Taylor's complaint about her treatment is that

Menzel often did not speak to her informally and in-person

about problems as they arose. Instead, Taylor alleges that

Menzel documented every misstep, saved letters containing

typos, photographed Taylor's desk and trash can, as well as

the inside of the office refrigerator, and waited to confront

Taylor with the evidence in the disciplinary meetings.

6

Taylor also objects that the school district made her job

more difficult upon her return from the hospital. First,

during Taylor's absence, Menzel instituted a number of

changes in the office: she introduced new office policies,

created new forms, relocated documents, rearranged

furniture, threw out Taylor's old filing system, and

discarded files, including some in Taylor's desk. Taylor

claims that these changes were disorienting and made it

much more difficult to accomplish tasks she could easily

perform before the hospitalization. Of course, Taylor's

absence coincided with the first weeks Menzel served as

principal, and thus changes were inevitable and part of

Menzel's prerogative as a new principal. The gravamen of

Taylor's complaint, however, focuses on the abrupt,

seemingly hostile manner in which the changes were made.

Compounding Taylor's difficulties, a new computer

system was introduced to keep track of student records and

other data. The school district points out that plans to

introduce the computers had been underway prior to

Taylor's hospitalization, and according to an affidavit

submitted by a school-district employee, Taylor had more

difficulty than the other secretaries at a training session

conducted in July of 1993. Taylor does not appear to

dispute that the school district was entitled to switch to

computers; rather, the thrust of her objection seems to be

that the school district raised another hurdle by the

manner in which the new system was introduced when she

returned from her hospitalization.

Taylor claims that her job was made more difficult in

another, more straightforward way: Following her return,

her job description was changed, increasing the number of

her job responsibilities from 23 to 42. It is not clear from

the record when these changes were made, how substantial

they were, or to what extent the new list simply enumerated

in greater detail duties she already performed, but reading

the evidence in the light most favorable to Taylor, there is

reason to believe that the new list added significant

responsibilities and made her return more difficult.

On September 2, 1994 Taylor received a notice placing

her on probation for 30 days and informing her that if her

performance did not improve, she would be terminated. She

7

was in fact discharged on October 28, 1994 although

Taylor's union representative subsequently negotiated with

the school district to allow Taylor to "retire" and receive

some retirement benefits. Since her termination, Taylor has

applied at different times for unemployment benefits and

disability benefits.

II

The District Court had subject matter jurisdiction over

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

supplemental jurisdiction over Taylor's state-law claim

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

jurisdiction pursuant to 28 U.S.C. S 1291. Our review of a

district court's grant of summary judgment is plenary.

Olson v. General Electric Astrospace, 101 F.3d 947, 951 (3d

Cir. 1996). In evaluating the school district's motion for

summary judgment, we must determine whether there are

any genuine disputes of material fact, and if not, then

viewing the evidence in the light most favorable to the

plaintiff, we must decide whether the school district was

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

56; Celotex Corporation v. Catrett, 477 U.S. 317, 322-23,

106 S.Ct. 2548, 2552-53 (1986); Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2510-11

(1986).

III

A. Basic statutory framework

Under the ADA, employers are prohibited from

discriminating "against a qualified individual with a

disability because of the disability of such individual in

regard to job application procedures, the hiring,

advancement, or discharge of employees, employee

compensation, job training, and other terms, conditions,

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

"qualified individual with a disability" is defined by the ADA

as a person "with a disability who, with or without

reasonable accommodation, can perform the essential

functions of the employment position that such individual

holds or desires." 42 U.S.C. S 12111(8). A"disability" is

8

defined as: "(A) a physical or mental impairment that

substantially limits one or more of the major life activities

of [an] individual; (B) a record of such impairment; or (C)

being regarded as having such an impairment." 42 U.S.C.

S 12102(2).

In view of the foregoing definitions, we have held that in

order for a plaintiff to establish a prima facie case of

discrimination under the ADA, the plaintiff must show: "(1)

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

he is otherwise qualified to perform the essential functions

of the job, with or without reasonable accommodations by

the employer; and (3) he has suffered an otherwise adverse

employment decision as a result of discrimination." Gaul v.

Lucent Technologies, 134 F.3d 576, 580 (3d Cir. 1998)

(citing, Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996)).

Discrimination under the ADA encompasses not only

adverse actions motivated by prejudice and fear of

disabilities, but also includes failing to make reasonable

accommodations of disabilities. The ADA specifies that an

employer discriminates against a qualified individual with a

disability when the employer does "not mak[e] reasonable

accommodations to the known physical or mental

limitations of the individual unless the [employer] can

demonstrate that the accommodation would impose an

undue hardship on the operation of the business of the

[employer]." 42 U.S.C. S 12112(b)(5)(A).

Before turning to the first issue, whether Taylor has a

disability under the ADA, we mention that we will only

discuss Taylor's ADA claim because our analysis of an ADA

claim applies equally to a PHRA claim. Kelly v. Drexel

University, 94 F.3d 102, 105 (3d Cir. 1996).

B. Does Taylor have a disability under the ADA?

As set forth above, Taylor can establish that she has a

disability if she has a mental impairment that substantially

limits a major life activity, has a record of such an

impairment, or is regarded as having such an impairment.

42 U.S.C. S 12102(2). Taylor argues that she can satisfy

each of these standards, but because we conclude that she

has a mental impairment that substantially limits a major

life activity, we need not reach the other two grounds.

9

No one disputes that bipolar disorder counts as a mental

impairment under the ADA. The ADA's regulations define a

"physical or mental impairment" as including "[a]ny mental

or psychological disorder, such as... emotional or mental

illness..." 29 C.F.R. S 1630.2(h)(2). While the District Court

agreed that bipolar disorder clearly qualifies as a "mental

impairment," the District Court nonetheless concluded that

Taylor's impairment did not substantially limit one of her

major life activities. Our analysis therefore begins with the

definitions for "substantially limits" and"major life

activities."

While we have observed that "[t]he ADA does not define

`major life activities,' " Kelly, 94 F.3d at 105 (citation

omitted), the ADA's regulations provide a nonexhaustive list

of major life activities that includes "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).

According to the ADA's regulations, an impairment

"substantially limits" a major life activity when the person

is either: "(i) Unable to perform a major life activity that the

average person in the general population can perform; or (ii)

Significantly restricted as to the condition, manner or

duration under which an individual can perform a

particular major life activity as compared to the condition,

manner, or duration under which the average person in the

general population can perform that same major life

activity." 29 C.F.R. S 1630.2(j)(1). The regulations list the

following factors to use in evaluating when someone is

substantially limited in a major life activity:"(1) The nature

and severity of the impairment; (ii) The duration or

expected duration of the impairment; and (iii) The

permanent or long term impact, or the expected permanent

or long term impact of or resulting from the impairment."

29 C.F.R. S 1630.2(j)(2). A separate analysis is applied

under the regulations to determine when the major life

activity of working is substantially limited, see

Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778 (3d

Cir. 1998); 29 C.F.R. S 1630.2(j)(3), but since we find

Taylor's illness affected major life activities even more

fundamental than working, we need not analyze her

disorder's impact on her ability to work.

10

When someone must be confined to a hospital because

she is psychotic, increasingly agitated, and gripped by

delusions, it is manifest that her abilities to think, care for

herself, concentrate, and interact with others are

substantially limited. As Taylor's records from Coastal Plain

Hospital document, before Taylor was treated with lithium

and an antipsychotic drug, she suffered paranoid delusions

that people were trying to kill her, inducing her to disguise

herself at the train station. On the car ride, she thought her

son's life was in danger, believed that the highway patrol

was escorting her, and thought the highway was filled with

"firefighters" there to protect her. Unable to recognize that

these beliefs were baseless, she explained at the time of her

admission that she was there for "acute stress." Symptoms

like these constitute severe limitations in a person's ability

to think.

We have previously held that disabilities should be

evaluated based on the plaintiff's unmedicated state.

Matczak v. Frankford Candy and Chocolate Co., 136 F.3d

933 (3d Cir. 1997). In Matczak we explained that according

to the United States Equal Employment Opportunity

Commission's (EEOC) interpretive guidelines, whether an

impairment "substantially limits" a major life activity

should be evaluated "without regard to mitigating measures

such as medicines, or assistive or prosthetic devices." Id. at

937 (quoting 29 C.F.R. Pt. 1630, App. S 1630.2(j) at 348).

We recognized that although the EEOC's interpretive

guidelines are not entitled to the same degree of deference

as regulations, we give the EEOC's interpretations"a great

deal of deference since Congress charged the EEOC with

issuing regulations to implement the ADA." Id. We added

that "we must give the EEOC's interpretation of its own

regulations `controlling weight unless it is plainly erroneous

or inconsistent with the regulation[s].' " Id. (quoting, Thomas

Jefferson University v. Shalala, 512 U.S. 504, 512, 114

S.Ct. 2381, 2386 (1994)).

Legislative history reinforces the EEOC's position and

shows that Congress intended mitigating measures to be

excluded from the evaluation of when an impairment

substantially limits a major life activity: "[P]ersons with

impairments, such as epilepsy or diabetes, which

11

substantially limit a major life activity are covered under

the first prong of disability, even if the effects of the

impairment are controlled by medication." Id. (quoting H.R.

Rep. No. 101-485(II), at 52 (1990), reprinted in 1990

U.S.C.C.A.N. 334) See also H.R. Rep. No. 101-485(III), at 28

(1989), reprinted in 1990 U.S.C.C.A.N. 451; S.Rep. No. 101-

116, at 23 (1989).

We recognize that the Tenth Circuit has rejected this view

and held that disabilities should be evaluated based on

their mitigated state. See Sutton v. United Air Lines, Inc.,

130 F.3d 893, 902 (10th Cir. 1997), cert. granted, 119 S.Ct.

790 (Jan. 8, 1999). And we are aware that the Supreme

Court has decided to review Sutton along with two similar

cases. See Murphy v. United Parcel Service, 141 F.3d 1185

(10th Cir. 1998)(unpublished table decision), cert. granted,

119 S.Ct. 790 (Jan. 8, 1999); Kirkingburg v. Albertson's

Inc., 143 F.3d 1228 (9th Cir. 1998), cert. granted, 119 S.Ct.

791 (Jan. 8, 1999). Nonetheless, we remain firm in our

belief that legislative history and deference to the

administering agency require the rule announced in

Matczak, and we are, of course, bound by our prior

precedent. We would add that the majority of circuits which

have considered the issue have held that disabilities should

be judged based on their unmitigated state. See Arnold v.

United Parcel Service, Inc., 136 F.3d 854, 857-866 (1st Cir.

1998); Roth v. Lutheran Gen. Hosp., 57 F.3d 1446, 1454

(7th Cir. 1995); Doane v. City of Omaha, 115 F.3d 624,

627-28 (8th Cir. 1997); Holihan v. Lucky Stores, Inc., 87

F.3d 362, 366 (9th Cir. 1996); Harris v. H & W Contracting

Co., 102 F.3d 516, 520-21 (11th Cir. 1996); but see

Washington v. HCA Health Services of Texas, Inc., 152 F.3d

464 (5th Cir. 1998)(only "serious impairments" like

diabetes, epilepsy, and hearing impairments will be

assessed in their unmitigated state; permanent corrections

will be evaluated based on the mitigated condition); Gilday

v. Mecosta County, 124 F.3d 760, 767-68 (6th Cir.

1997)(Kennedy, J., concurring in part); id. at 768 (Guy, J.,

concurring in part and dissenting in part)("impact of

mitigating measures must be decided on a case-by-case

basis"). Except for the Tenth Circuit, even those circuits

rejecting the EEOC's rule have allowed that serious

conditions, which we believe Taylor's illness is, should be

12

judged based on their unmitigated state. As the First

Circuit pointed out in Arnold, 136 F.3d at 861, it makes

little sense to insist that serious, chronic conditions like

diabetes, epilepsy, or bipolar disorder cannot be disabilities

unless they are so poorly controlled that it becomes all but

inevitable that no reasonable accommodation is possible.2

_________________________________________________________________

2. Employers need not fear that discounting mitigating factors will

establish a flood of new-found disabilities and demands for

accommodations. First, many widely-treated conditions simply do not

significantly restrict a person's functioning as compared to the average

person's - even when those conditions are left untreated. If, on the other

hand, a condition is disabling when untreated, but really is fully

corrected by mitigating measures, then it is very unlikely that employers

will need to make much in the way of accommodations, for by

hypothesis, the condition imposes no restrictions on the employee.

The value of looking to the unmitigated condition is that it allows the

ADA to encompass serious, chronic conditions like diabetes or bipolar

disorder that, while capable of being controlled by medication, are not

always perfectly controlled. Medical treatments for many chronic

conditions can in some instances themselves create limitations. See, e.g.,

supra note 1. The problem with insisting that these uncontrolled

symptoms must themselves be substantially limiting before

accommodations are required is that once the symptoms of a serious,

chronic condition are no longer kept in check, they can rapidly become

totally disabling. As a result, employees with these disabilities would be

denied the right to accommodations when modest accommodations could

help them surmount significant although not substantially limiting

symptoms. And "disability" status would only be achieved when their

health had deteriorated so precipitously that no reasonable

accommodation was possible. To take Taylor's case, she would not be

legally entitled under the ADA to even the most simple accommodations

for blood tests until she experienced the onset of another manic episode

which could easily result in her becoming psychotic, requiring another

commitment to an institution.

It might be thought that those who have serious, chronic conditions

can turn to the "regarded as disabled" prong to establish a disability and

obtain accommodations when symptoms or the side effects of treatments

flare. However, aside from the fact that an employer may not regard the

employee as disabled, it remains an open question in this circuit

whether employees are entitled to accommodations if they can only

satisfy the "regarded as" prong for demonstrating a disability. See Deane

v. Pocono Medical Center, 142 F.3d 138, 140-41 (3d Cir. 1998)(en banc).

13

The District Court concluded that Taylor was not

disabled because she failed to show that her bipolar

disorder was more than a temporary condition. Closely

related to this point was the District Court's alternative

statement that Taylor did not suffer a disability at the time

the adverse employment decision was made, i.e., on the

District Court's view, the date of her termination.

Concerning the District Court's second statement, we

want to clarify that Taylor alleges the school district refused

to accommodate her throughout the period starting

immediately after she returned to work from the hospital

and continuing until the date of her termination. Thus, the

proper inquiry is whether Taylor was disabled during the

period she says she sought and was denied reasonable

accommodations. We do not narrow the inquiry and ask

only whether Taylor was psychotic or had some

uncontrolled symptoms of her bipolar disorder on the

specific day she was terminated, for that would vitiate the

rule that a disability controlled by medication is still a

disability and would ignore the fact that the alleged failure

to accommodate began before the termination.

The District Court's position properly understood seems

to be that Taylor failed to prove that her illness continued

beyond the date of her discharge from Coastal Plain, and

therefore, the school district was not required to

accommodate a disability that no longer existed. The

trouble with this view is that Taylor provided ample

evidence that her disability has continued since the date of

her hospitalization.3

_________________________________________________________________

3. We have previously held that some temporary impairments will not

qualify as disabilities under the ADA even during the time the

impairment actively affects the individual. McDonald v. Com. of Pa., Dept.

of Public Welfare, 62 F.3d 92 (3d Cir. 1995). We explained in McDonald

that the EEOC's guidelines provide that "temporary, nonchronic

impairments of short duration, with little or no long term permanent

impact, are usually not disabilities." Id. at 95 (quoting 29 C.F.R. Pt.

1630, App. S1630.2(j) at 347-48) We also reviewed the factors set forth

in 29 C.F.R. S 1630.2(j)(2) for determining when an impairment

"substantially limits" a major life activity: the impairment's nature and

severity, its expected duration, and its long-term impact. Because we

conclude that Taylor's condition was chronic and substantially limiting,

we need not delve into the question of which acute conditions are

excluded from the ADA's definition of a disability.

14

The District Court noted that Taylor's records from

Coastal Plain Hospital did not discuss her prognosis after

the discharge. The records only stated that at the time of

discharge, Taylor was doing well, was "not overtly

psychotic," and would be "followed by a psychiatrist of her

choice in her home town." These statements certainly are

not inconsistent with Taylor's having a chronic condition,

and by indicating that her symptoms are currently under

control and that she will receive further treatment, the

records at least imply that the condition is ongoing. Other

evidence before the District Court affirmatively

demonstrated that Taylor has a continuing illness. Most

obviously, Taylor has continued to take lithium and see a

psychiatrist. Dr. Sonnenberg, Taylor's treating physician,

stated that Taylor's bipolar disorder "is not cured but

controlled with her medication" and "without the medicine

Mrs. Taylor's symptoms are likely to be exhibited."4

The District Court evidently refused to consider Dr.

Sonnenberg's opinion because the Court said, citing Gaul v.

AT&T, Inc., 955 F. Supp. 346 (D.N.J. 1997), Taylor could

not rely on the opinion of her own treating physician. But

Gaul stated that "[i]t is well settled that treating physicians

may testify as to any subject relevant to the evaluation and

treatment of their patients." Id. at 349. At issue in Gaul was

whether testimony by the plaintiff 's treating physician

satisfied the New Jersey Supreme Court's holding that

"expert medical testimony is required to establish the fact

of the employee's [handicap]." Id. (quoting Clowes v.

Terminex International, Inc., 109 N.J. 575, 597 (1988)). Just

as the District Court in Gaul deemed admissible the

opinion of a plaintiff 's treating physician, we hold that a

plaintiff in an ADA case can rely on the testimony of his or

her treating physician to demonstrate that the plaintiff has

a disability.

The District Court also cited the report of the school

district's expert witness, Dr. Rieger. Dr. Rieger stated that:

_________________________________________________________________

4. The DSM-IV states that: "Bipolar I Disorder is a recurrent disorder -

more than 90% of the individuals who have a single Manic Episode go

on to have future episodes." Diagnostic and Statistical Manual of Mental

Disorders, 4th Ed., American Psychiatric Association, at 353 (1994).

15

There is no doubt in my mind that Ms. Taylor

experienced a biologic psychiatric illness in which

genetic factors play a role. These illnesses can appear

even fairly late in life regardless of life events and

stressors...

When I examined Ms. Taylor[,] she had a normal

mental state. Her chronic biological psychiatric illness

was obviously well controlled by medication. If she

continues to take her medications as instructed[,] she

will be able to work. She is now not at all disabled from

a psychiatric point of view... If she were somehow not

compliant with the medication[,] she might relapse into

psychosis and then might become disabled.

Theoretically there is a very small chance that she

could develop another psychotic break even while being

properly treated.

App. vol. I at 157 and 159.

The District Court placed great weight on the fact that

Dr. Rieger said that Taylor "might relapse" if she ceased

taking medication. Given that both parties' experts agree

that Taylor's condition is chronic, we conclude that the

District Court erred in reasoning that Taylor's condition

could be temporary. We would add that Dr. Sonnenberg

stated that without medication Taylor's symptoms "are

likely to be exhibited," and nothing in Dr. Rieger's report

suggests that it is likely Taylor would be fine without

medication. When both parties' experts agree that the

plaintiff's condition is chronic, both agree that the plaintiff

could relapse without medication, and the plaintiff's

treating physician has decided the risk of relapse is serious

enough to warrant having the plaintiff continue taking a

drug that imposes significant burdens, the plaintiff has

established that her condition is not temporary. 5

_________________________________________________________________

5. Although the evidence cited above is sufficient for our holding, we

note

that a leading text on bipolar disorder states: "We wish to emphasize the

common clinical belief that the great majority of bipolar patients

withdrawn from lithium will eventually relapse. The wisdom of this

assumption is reinforced by long-term follow-up studies... The Page

study involved 101 bipolar and recurrent unipolar patients maintained

on lithium for a median of 13 years. Of the 31 who stopped lithium, all

but 2 suffered relapses, and those 2 were unipolar patients; that is, all

bipolar patient who discontinued lithium relapsed." Frederick Goodwin

and Kay Redfield Jamison, Manic-Depressive Illness, Oxford University

Press, at 680-81 (1990). See also Julien, supra note 1, at 232.

16

We have previously held that a plaintiff with epilepsy,

whose condition had been controlled for thirty years with

medication, could still demonstrate that he had a disability.

Matczak, 136 F.3d at 937-38. The likelihood of relapse was

never an issue; it was simply assumed reasonably enough

that if continuing drug treatment was medically indicated,

the condition persisted. We would add that the EEOC has

said chronic, episodic conditions can be substantially

limiting, see 2 EEOC Compliance Manual, Enforcement

Guidance for Psychiatric Disabilities, at 9 (March 25, 1997),

and indeed, it seems reasonable to say that conditions that

cause periodic, substantial shifts in a person's ability to

function can be highly disabling. Many activities in life, and

certainly most jobs, require a consistent level of

functioning. A career interrupted by hospitalization,

especially hospitalization punctuated by strange,

embarrassing behavior, is not an easy one.

Should our discussion above create any doubt, we want

to emphasize that even once a plaintiff establishes that her

condition persists or is chronic, the plaintiff still must

show, as we specifically required in Matczak, 136 F.3d at

938, that her persistent condition substantially limits a

major life activity when left untreated. Not every chronic

condition is a disability under the ADA. But as discussed

above, Taylor has shown that the untreated symptoms of

her chronic illness do substantially limit a number of her

major life activities. The school district's own expert agreed

that Taylor had bipolar disorder which caused "an acute

psychotic break, necessitating hospitalization," and that

Taylor "clearly had paranoid delusions" and was

"hyperactive and euphoric" before and during her

hospitalization. App. vol. I at 156 and 159.

Because we find that the undisputed evidence in the

record shows that Taylor had a disability, we believe that

judgment should be entered in Taylor's favor on this issue.

The school district had a full opportunity to present its side

on this question, and both parties' experts agree on the

essential facts. See Fabric v. Provident Life & Accident

Insurance Co., 115 F.3d 908, 915 (11th Cir. 1997), cert.

denied, 118 S.Ct. 1563 (1998)("Summary judgment in favor

of a non-moving party has become an accepted method for

17

an appellate court to expedite litigation... [However,] [i]f a

party did not have an opportunity to present his side of a

dispute, granting summary judgment for a non-moving

party would be improper.")(citations omitted). See also 10A.

C. Wright, A. Miller, and M. Kane, Federal Practice and

Procedure: Civil 3d S 2716 at 292-93 (1998).

C. Reasonable accommodations

Having concluded that Taylor was entitled to judgment as

a matter of law that she has a disability under 42 U.S.C.

S 12102(2)(A), we must consider whether the school district

failed to provide reasonable accommodations. On this issue,

we find that the District Court applied the wrong legal

standards and that under the correct standard, disputes of

material fact remain, requiring remand.

As stated above, an employer commits unlawful

discrimination under the ADA if the employer does"not

mak[e] reasonable accommodations to the known physical

or mental limitations of an otherwise qualified individual

with a disability who is an applicant or employee, unless

[the employer] can demonstrate that the accommodation

would impose an undue hardship on the operation of the

business of [the employer]." 42 U.S.C.S 12112(b)(5)(A).

In evaluating whether a plaintiff is a "qualified individual

with a disability," we have held that a plaintiff must

"satisf[y] the prerequisites for the position, such as

possessing the appropriate educational background,

employment experience, skills, licenses, etc." and, the

plaintiff must be able to "perform the essential functions of

the position held or desired, with or without reasonable

accommodations." Gaul, 134 F.3d at 580 (quoting, 29

C.F.R. Pt. 1630, App. S 1630.2(m) at 351). Because Taylor

held her position as secretary to the principal for many

years, receiving high praise, there is no serious dispute that

she satisfies the prerequisites for the position. The critical

issue is whether Taylor could, with reasonable

accommodations, perform the essential functions of her job

following her return from her hospitalization.

The Interactive Process

The ADA's regulations state that: "To determine the

appropriate reasonable accommodation it may be necessary

18

for the [employer] to initiate an informal, interactive process

with the [employee] in need of accommodation. This process

should identify the precise limitations resulting from the

disability and the potential reasonable accommodations

that could overcome those limitations." 29 C.F.R.

S 1630.2(o)(3). Similarly, the EEOC's interpretive guidelines

provide that: "Once a qualified individual with a disability

has requested provision of a reasonable accommodation,

the employer must make a reasonable effort to determine

the appropriate accommodation. The appropriate

reasonable accommodation is best determined through a

flexible, interactive process that involves both the employer

and the [employee] with a disability." 29 C.F.R. Pt. 1630,

App. S 1630.9 at 359.

We have previously recognized both this regulation and

the EEOC's interpretive guideline and applied them to a

claim brought under the Rehabilitation Act, 29 U.S.C.

S 701, et seq. Mengine v. Runyon, 114 F.3d 415, 419-20 (3d

Cir. 1997); see also Deane v. Pocono Medical Center, 142

F.3d 138, 149 (3d Cir. 1998)(en banc).6 Based on the

regulation and interpretive guidelines, we held in Mengine

that "both parties have a duty to assist in the search for

appropriate reasonable accommodation and to act in good

faith." Id. We noted that other circuits have taken this view.

See, e.g., Beck v. University of Wisconsin Bd. of Regents, 75

F.3d 1130, 1135 (7th Cir. 1996)("A party that obstructs or

delays the interactive process is not acting in good faith. A

party that fails to communicate, by way of initiation or

response, may also be acting in bad faith."); Taylor v.

Principal Financial Group, Inc., 93 F.3d 155, 165 (5th Cir.

1996)(The "employee's initial request for an

accommodation... triggers the employer's obligation to

participate in the interactive process...").

In Bultemeyer v. Fort Wayne Community Schools, 100

F.3d 1281 (7th Cir. 1996) an employee diagnosed with

_________________________________________________________________

6. While Mengine involved a claim under the Rehabilitation Act, the

regulation and interpretive guidelines applied in the case were from the

ADA. Furthermore, according to 42 U.S.C. S 12201(a), the ADA should

not be construed to apply a lesser standard than the Rehabilitation Act.

See also Bragdon v. Abbott, 118 S.Ct. 2196, 2202 (1998).

19

paranoid schizophrenia and bipolar disorder sought to

return from an extended disability leave to his job as a

custodian. His employer informed him that he would be

reassigned to the largest school operated by Fort Wayne

Community Schools, and added that he would not receive

any special accommodation. The employer then instructed

the plaintiff to take a physical and report to work or else he

would be terminated. After touring the new school with the

custodial foreman, the plaintiff told his employer that he

did not think he was equal to the task but said he was not

resigning. The plaintiff subsequently failed to take the

physical or report to work although he did have his

psychiatrist send a letter to the employer which stated that

due to the plaintiff 's illness, it would be in the plaintiff 's

best interest to work at a less stressful school. The

employer never responded and terminated the plaintiff. The

Seventh Circuit, reversing summary judgment for the

employer, concluded that there was a genuine dispute as to

whether the employer engaged in the interactive process of

seeking accommodations.

We agree with the Seventh Circuit which held that:

An employee's request for reasonable accommodation

requires a great deal of communication between the

employee and employer... [B]oth parties bear

responsibility for determining what accommodation is

necessary... `[N]either party should be able to cause a

breakdown in the process for the purpose of either

avoiding or inflicting liability. Rather, courts should

look for signs of failure to participate in good faith or

failure by one of the parties to help the other party

determine what specific accommodations are

necessary. A party that obstructs or delays the

interactive process is not acting in good faith. A party

that fails to communicate, by way of initiation or

response, may also be acting in bad faith. In essence,

courts should attempt to isolate the cause of the

breakdown and then assign responsibility.'

Bultemeyer, 100 F.3d at 1285 (quoting Beck, 75 F.3d at

1135).

Our analysis of the interactive process in the present

case is divided into two steps: first, we will clarify what

20

notice must be given to the employer to trigger the

employer's obligations under the interactive process, and

second, we will elaborate on the employee's and the

employer's duties once the interactive process comes into

play.

1. Notice of the disability and request for ac commodation

The first question we must address is who must make

the request for accommodation and what form that request

must take. The EEOC compliance manual provides that"a

family member, friend, health professional, or other

representative may request a reasonable accommodation on

behalf of an individual with a disability." 2 EEOC

Compliance Manual, Enforcement Guidance for Psychiatric

Disabilities, at 20-21. Likewise, in Bultemeyer the Seventh

Circuit allowed that an employee's psychiatrist could make

a request for accommodations on behalf of an employee.

Bultemeyer, 100 F.3d at 1286. In our case, therefore,

Taylor's son could make the initial request for

accommodations.

The EEOC's manual further provides that "[r]equests for

reasonable accommodations do not need to be in writing,"

2 EEOC Compliance Manual, Enforcement Guidance for

Psychiatric Disabilities, at 21, and "[t]o request

accommodation, an individual may use `plain English' and

need not mention the ADA or use the phrase `reasonable

accommodation.' " Id. at 19. The Seventh Circuit said that

"properly participating in the interactive process means

that an employer cannot expect an employee to read its

mind and know that he or she must specifically say`I want

reasonable accommodation,' particularly when the

employee has a mental illness." Bultemeyer, 100 F.3d at

1286.

The EEOC's manual makes clear, however, that while the

notice does not have to be in writing, be made by the

employee, or formally invoke the magic words "reasonable

accommodation," the notice nonetheless must make clear

that the employee wants assistance for his or her disability.

In other words, the employer must know of both the

disability and the employee's desire for accommodations for

that disability.

21

These rules are consistent with the statute which says

that the employer must make reasonable accommodations

to an employee's "known" disability. 42 U.S.C.

S 12112(b)(5)(A). What matters under the ADA are not

formalisms about the manner of the request, but whether

the employee or a representative for the employee provides

the employer with enough information that, under the

circumstances, the employer can be fairly said to know of

both the disability and desire for an accommodation.

What information the employee's initial notice must

include depends on what the employer knows. In Taylor v.

Principal Financial Group, Inc., 93 F.3d 155 (5th Cir. 1996),

an employee whose job performance had fallen off

mentioned to his employer that he was diagnosed with

bipolar disorder. Nothing the employee had done suggested

the nature of his illness. When the employer, who said he

did not know about the illness, asked the employee if he

was okay, the employee responded that he was. The

employee never offered further information about his

disorder and, even more significantly, could not confirm

that he ever explicitly asked for an accommodation or help

of any sort. Under these circumstances, the employee has

not been given sufficient notice to trigger the employer's

duty to engage in the interactive process. Cf. Crandall v.

Paralyzed Veterans of America, 146 F.3d 894 (D.C. Cir.

1998)(Employee with bipolar disorder could not state a

claim under the Rehabilitation Act when he never told his

employer of his mental illness and never requested

accommodations.). Employers cannot assume employees

are disabled and need accommodations.

Our case differs markedly. It is undisputed that Taylor

became psychotic at work, that the school district knew she

was hospitalized immediately thereafter, and that Coastal

Plain Hospital contacted the school district by letter about

Taylor's hospitalization and provided a phone number to

answer questions. It is also undisputed that Ferrara wrote

a note saying she planned to contact Taylor's doctors and

that she wrote a letter to the superintendent, stating that

"Phoenixville Psychiatric Associates... will monitor [Taylor's]

Blood Lithium [sic] levels. It was stressed that she must

maintain and continue her medication." The school district

22

also does not deny that it required Taylor to submit a note

from Dr. Sonnenberg, further demonstrating that the school

district knew how to get information from Taylor when it

deemed it necessary.

Based on this evidence, the school district had more than

enough information to put it on notice that Taylor might

have a disability, and therefore, in order to trigger the

school district's obligation to participate in the interactive

process, Taylor or her representative only needed to request

accommodation. In light of the undisputed background

information putting the school district on notice that Taylor

had recently developed a serious disability, we think it

would be especially inappropriate to insist that Taylor's son

must have specifically invoked the ADA or used the words

"reasonable accommodation" when he requested

accommodations. Under the circumstances, it hardly

should have come as a surprise that Taylor would want

some accommodations, particularly as the successive

disciplinary meetings began to mount for an employee who

had previously performed very well. We would add that the

school district had ample time to seek legal advice on its

obligation to provide reasonable accommodations.

Regardless, Taylor's son has submitted an affidavit saying

that not only did he provide diagnostic and treatment

information to the school district, he also asked for

"accommodations" for his mother.

Menzel's affidavit asserts that she did not "learn the

specifics" of Taylor's disorder until after this litigation was

started. Ferrara's affidavit states that: "To my knowledge, at

no time was I or anyone else at the School District aware

of Plaintiff 's alleged diagnosis of bipolar disorder or the

details or frequency of any treatments she may have been

receiving after returning from Coastal Plain until after the

current lawsuit was filed."

We want to make clear that the school district's duty to

participate in the interactive process is triggered if Taylor

notified either Menzel who was Taylor's supervisor and East

Pikeland's principal, or Ferrara, the school district's

administrative assistant for personnel. Thus, if Taylor's son

requested accommodations from Ferrara, then the school

district would have a duty to participate in the interactive

23

process regardless of how much Menzel knew about

Taylor's disorder.

We would add that to trigger the school district's duty to

participate in the interactive process, it is not essential that

Ferrara or Taylor knew the specific name of Taylor's

condition although Taylor's son has created a factual

dispute on this issue by saying that he provided Ferrara

with diagnostic and treatment information. Suffice it to say

that there is no genuine dispute that the school district was

aware that Taylor exhibited serious psychiatric problems

and those problems were severe enough to require her to be

hospitalized for roughly three weeks. Following Taylor's

discharge from the hospital, the school district knew that

Phoenixville Psychiatric Associates monitored the lithium

Taylor was taking and that Taylor continued to see a

psychiatrist. Taylor also provided the school district with a

number of avenues for obtaining further information from

her doctors, avenues that the school district used. If there

was any further information that the school district felt it

needed to justify an accommodation, it was incumbent on

the school district to ask for it. As the Seventh Circuit has

said, "[t]he employer has to meet the employee half-way."

Bultemeyer, 100 F.3d at 1285. To raise the bar for

triggering the interactive process any further would

essentially nullify the process.

Once the employer knows of the disability and the

employee's desire for accommodations, it makes sense to

place the burden on the employer to request additional

information that the employer believes it needs. Disabled

employees, especially those with psychiatric disabilities,

may have good reasons for not wanting to reveal

unnecessarily every detail of their medical records because

much of the information may be irrelevant to identifying

and justifying accommodations, could be embarrassing,

and might actually exacerbate workplace prejudice. An

employer does not need to know the intimate details of a

bipolar employee's marital life, for example, in order to

identify or justify an accommodation such as a temporary

transfer to a less demanding position.

Another reason for placing some burden on the employer

is that, as the Seventh Circuit recognized in Bultemeyer, an

24

employee with a mental illness may have difficulty

effectively relaying medical information about his or her

condition, particularly when the symptoms are flaring and

reasonable accommodations are needed. Id. See also Criado

v. IBM Corp., 145 F.3d 437, 444 (1st Cir. 1998)(When an

employer terminated an employee with a mental illness due

to an alleged miscommunication over a leave of absence, a

jury could find that the employer failed to live up to its

responsibility to help find accommodations.). It is worth

noting that Taylor's hospital records specifically stated that

at the time of her hospitalization, she "lacked insight" into

her condition and believed her only problem was"acute

stress."

2. Application of the interactive process foll owing adequate

notice

Viewing the evidence in the light most favorable to Taylor,

we believe that a reasonable jury could conclude, based on

the evidence presented thus far, that the school district did

not meet its burden under the interactive process. Taylor's

version of the case can be stated succinctly as follows: After

Menzel and Ferrara watched Taylor become manic and

require hospitalization, the two decided that Menzel should

begin documenting Taylor's every error within days of her

return, despite the fact that Taylor's son requested

accommodations, informed them about Taylor's condition,

and provided them with the means to obtain more

information if needed. Notwithstanding Taylor's previous

twenty years of strong performance and the school district's

clear notice of Taylor's disability and desire for

accommodations, the school district offered no

accommodations or assistance in finding them, made

Taylor's job more difficult, and simply sat back and

continued to document her failures. A reasonable jury

could conclude that the school district did not engage in an

interactive process of seeking accommodations and is

responsible for the breakdown in the process.

The school district emphasizes that the only

accommodation Taylor specifically requested was transfer

to another position, which Taylor later conceded was not

feasible. We do not think that it is fatal to Taylor's claim

that her son did not request a specific accommodation or

25

that Taylor's request in March of 1994 was for an

accommodation that she admitted was not possible. The

interactive process, as its name implies, requires the

employer to take some initiative. In Bultemeyer , the court

explained that: "If the note [from the psychiatrist requesting

accommodation] was too ambiguous and [the employer] did

not know what Bultemeyer wanted, [the employer] easily

could have called [the psychiatrist] for a clarification."

Bultemeyer, 100 F.3d at 1285. The interactive process

would have little meaning if it was interpreted to allow

employers, in the face of a request for accommodation,

simply to sit back passively, offer nothing, and then, in

post-termination litigation, try to knock down every specific

accommodation as too burdensome. That's not the

proactive process intended: it does not help avoid litigation

by bringing the parties to a negotiated settlement, 7 and it

unfairly exploits the employee's comparative lack of

information about what accommodations the employer

might allow. In addition, in some cases courts may be

better positioned to judge whether the employer met with

the employee in good faith than to judge how burdensome

a particular accommodation really is.

The ADA's regulations make clear that the purpose of the

interactive process is to determine the appropriate

accommodations: "This process should identify the precise

limitations resulting from the disability and the potential

reasonable accommodations that could overcome those

limitations." 29 C.F.R. S 1630.2(o)(3). Therefore, it would

make little sense to insist that the employee must have

_________________________________________________________________

7. In Deane we emphasized the value of the interactive process for

avoiding litigation: "we take this opportunity to observe that this

protracted (and very much ongoing) litigation would likely have been

unnecessary had the parties taken seriously the precepts announced in

our opinion in Mengine." Deane, 142 F.3d at 149 (citation omitted). We

would add that the interactive process can be thought of as a less

formal, less costly form of mediation. See 67 U.S.L.W. 2255 (noting the

value of mediated settlement in ADA cases). Mediated settlements, the

article explains, are cheaper than litigation, can help preserve

confidentiality, allow the employee to stay on the job, and avoid

monetary damages for an employer's initially hostile responses to

requests for accommodations. The interactive process achieves these

same goals even more effectively.

26

arrived at the end product of the interactive process before

the employer has a duty to participate in that process. The

EEOC's interpretive guidelines squarely place some of the

burden on the employer by stating that "the employer must

make a reasonable effort to determine the appropriate

accommodation." 29 C.F.R. Pt. 1630, App. S 1630.9 at 359.

As we explained in Mengine, the process must be

interactive because each party holds information the other

does not have or cannot easily obtain. We noted that

"employers will not always know what kind of work the

worker with the disability can do, and conversely, the

worker may not be aware of the range of available

employment opportunities, especially in a large company.

Thus, the interactive process may often lead to the

identification of a suitable position." Mengine, 114 F.3d at

420. More specifically, we explained that while an employee

who wants a transfer to another position ultimately has the

burden of showing that he or she can perform the essential

functions of an open position, the employee does not have

the burden of identifying open positions without the

employer's assistance. "In many cases, an employee will not

have the ability or resources to identify a vacant position

absent participation by the employer." Mengine, 114 F.3d

420.8 Taylor's concession that she knew of no other open

positions, therefore, should not necessarily be the end of

the matter if the school district made no effort to help

investigate.

When transfer is not sought, as was presumably the case

when Taylor's son first requested accommodations, the

employer likewise will often hold more information than the

employee about what adjustments are feasible in the

employee's current position. The Seventh Circuit pointed

out in Bultemeyer that: "When Bultemeyer worked at North

Side High School, a simple adjustment in his duties was

_________________________________________________________________

8. Our opinion in Gaul v. Lucent Technologies, Inc., 134 F.3d 576 (3d Cir.

1998) should be distinguished because there the employee's proposed

accommodation, a transfer whenever he decided he was stressed, was

unreasonable as a matter of law. If an employee insists on a single

accommodation that is unreasonable as a matter of law, then the

employee will be at fault for the breakdown in the interactive process.

27

enough of an accommodation to enable him to work there.

But this time, we do not know what might have happened,

because [the employer] was unwilling to engage in the

interactive process and accommodation him." Bultemeyer,

100 F.3d at 1285.

In short, an employer who has received proper notice

cannot escape its duty to engage in the interactive process

simply because the employee did not come forward with a

reasonable accommodation that would prevail in litigation.

Participation is the obligation of both parties, however, so

an employer cannot be faulted if after conferring with the

employee to find possible accommodations, the employee

then fails to supply information that the employer needs or

does not answer the employer's request for more detailed

proposals. And while a specific request may not always be

necessary to initiate the process, it certainly helps bolster

the employee's claim that the employer knew that the

employee wanted accommodations.

The interactive process does not dictate that any

particular concession must be made by the employer; nor

does the process remove the employee's burden of showing

that a particular accommodation rejected by the employer

would have made the employee qualified to perform the

job's essential functions. See Walton v. Mental Health

Association of Southeastern Pennsylvania, No. 97-2000,

1999 WL 86818, at *8 (3d Cir. Feb. 23, 1999). All the

interactive process requires is that employers make a good-

faith effort to seek accommodations.

Employers can show their good faith in a number of

ways, such as taking steps like the following: meet with the

employee who requests an accommodation, request

information about the condition and what limitations the

employee has, ask the employee what he or she specifically

wants, show some sign of having considered employee's

request, and offer and discuss available alternatives when

the request is too burdensome. These steps are consistent

with the recommendations in the EEOC's interpretive

guideline. See 29 C.F.R. Pt. 1630, App.S 1630.9 at 359-61.

We do not think this process is especially burdensome. As

we found in Mengine, the Postal Service engaged in good

faith in the interactive process when it exchanged a number

28

of letters with an employee in an effort to identify a vacant

position for reassignment and sent the employee multiple

job descriptions of vacant positions. Mengine, 114 F.3d at

421.9

The school district can be understood as arguing

implicitly that it did not have to participate in the

interactive process because there was no feasible

accommodation that would have made Taylor capable of

performing the essential functions of her job. In Mengine we

stated that "if reasonable accommodation is impossible,

nothing more than communication of this fact is required.

Nonetheless, if an employer fails to engage in the interactive

process, it may not discover a way in which the employee's

disability could have been reasonably accommodated,

thereby risking violation of the Rehabilitation Act." Mengine,

114 F.3d at 420-21. We explained that whether an

employer's duty to participate in the interactive process has

been discharged will often be a matter of "timing": i.e., the

employer will almost always have to participate in the

interactive process to some extent before it will be clear that

it is impossible to find an accommodation that would allow

the employee to perform the essential functions of a job.

Put differently, because employers have a duty to help

the disabled employee devise accommodations, an employer

who acts in bad faith in the interactive process will be liable

if the jury can reasonably conclude that the employee

would have been able to perform the job with

accommodations. In making that determination, the jury is

entitled to bear in mind that had the employer participated

in good faith, there may have been other, unmentioned

possible accommodations. On the other hand, as we

_________________________________________________________________

9. Employers may find it useful to take advantage of the Job

Accommodation Network although we do not in any way suggest that

employers are obliged to make use of this service. The EEOC compliance

manual explains that: "The Job Accommodation Network (JAN) provides

advice free-of-charge to employers and employees contemplating

reasonable accommodation. JAN is a service of the President's

Committee on Employment of People with Disabilities which, in turn, is

funded by the U.S. Department of Labor. JAN can be reached at 1-800-

ADA-WORK." EEOC Compliance Manual, Enforcement Guidance for

Psychiatric Disabilities, at 23, n. 56.

29

explained in Mengine, "[t]he ADA, as far as we are aware, is

not intended to punish employers for behaving callously if,

in fact, no accommodation for the employee's disability

could reasonably have been made." Mengine, 114 F.3d at

420 (quoting, Willis v. Conopco, Inc., 108 F.3d 282, 285

(11th Cir. 1997)).

When an employee has evidence that the employer did

not act in good faith in the interactive process, however, we

will not readily decide on summary judgment that

accommodation was not possible and the employer's bad

faith could have no effect. To assume that accommodation

would fail regardless of the employer's bad faith would

effectively eliminate the requirement that employers must

participate in the interactive process. An employer who

acted in bad faith would be in essentially the same, if not

better, position than one who participated; that is, both

employers would be arguing that the employee failed to find

an accommodation making him or her able to perform the

essential function of the job. The less the employer

participated, the easier this would become, and as a result,

the requirement that employers participate in the

interactive process would be toothless. Thus, where there is

a genuine dispute about whether the employer acted in

good faith, summary judgment will typically be precluded.

Cf. Hendrick-Robinson v. Excel Corp., 154 F.3d 685 (7th Cir.

1998)(Refusing to grant an employer summary judgment

because it may not have participated in good faith in

finding accommodations); Baert v. Euclid Beverage, Ltd.,

149 F.3d 626 (7th Cir. 1998)(Refusing to grant an employer

summary judgment because disputes of fact remained

about which party caused the breakdown in the interactive

process).10 When the disability involved is one that is

_________________________________________________________________

10. The Ninth Circuit has expressed disagreement with our decision in

Mengine and concluded that employers are not obliged to participate in

the interactive process. See Barnett v. U.S. Air, Inc., 157 F.3d 744, 753

(9th Cir. 1998). The majority in Barnett worried that an employer could

be held liable for failing to engage in the interactive process even

though

the employee was successfully accommodated. We believe that where an

employer has successfully made reasonable accommodations, a court

can conclude as a matter of law that the employer did not act in bad

faith. The Barnett majority also objected that it was not clear when an

30

heavily stigmatized in our society - as is true when the

employee is voluntarily or involuntarily committed to a

mental institution - courts should be especially wary on

summary judgment of underestimating how well an

employee might perform with accommodations or how

much the employer's bad faith may have hindered the

process of finding accommodations.

In Taylor's case we believe that there are genuine

disputes about the school district's good faith participation

in the interactive process, and assuming the school district

did act in bad faith, nothing the school district points to

demonstrates that it would be impossible to accommodate

Taylor. Prior to her hospitalization, Taylor performed her

job effectively for nearly two decades. But after becoming

disabled and seeking accommodations, she has presented

evidence that the school district made no response to her

request and instead increased the difficulty of her job.

Given the evidence Taylor presents of bad faith on the

school district's part, we will not decide on summary

judgment that it would have been fruitless for the school

district to make some modest and fairly obvious efforts to

accommodate.

_________________________________________________________________

employer would incur process liability. Bad faith can, of course, take

many different forms, just as negligence can, precluding easy statement

of a general rule about when bad faith has occurred. However, we believe

that jurors should be able to distinguish between stonewalling and

assisting an employee in finding accommodations. The fact that there

may be some hard cases is hardly unique in law. The Barnett majority's

last objection was that 29 C.F.R. S 1630(o)(3) only states that it "may be

necessary" for the employer to engage in an interactive process. But the

EEOC's interpretive guidelines state that once an employee requests

accommodations, the employer "must make a reasonable effort to

determine the appropriate accommodation." 29 C.F.R. Pt. 1630, App.

S 1630.9 at 359. The guidelines continue that in some instances the

interactive process may not be necessary because it is clear to both

parties involved what accommodation will work. For example, the

guidelines explain that an employee in a wheelchair may want her desk

elevated with blocks so that her wheelchair will slide under. No

interactive process will be needed here. Id. at 360. The regulation uses

the phrase "may be necessary," in other words, because sometimes the

necessary accommodation is obvious. We have also recognized that the

process is not necessary in cases where accommodation is impossible.

31

In particular, the school district could have increased

Taylor's job responsibilities more slowly, given more time to

introduce the computer, or communicated less by formal,

written reprimands. The EEOC compliance manual for

psychiatric disorders provides that some adjustments in

supervisory methods can qualify as legitimate

accommodations.11 The ADA itself specifically provides that

reasonable accommodations can include "job restructuring,

part-time or modified work schedules, reassignment to a

vacant position, acquisition or modification of equipment or

devices, appropriate adjustment or modifications of

examinations, training materials or policies, the provision of

qualified readers or interpreters, and other similar

accommodations for individuals with disabilities." 42 U.S.C.

S 12111(9)(B).

The fact that Taylor's potential accommodations are

modest should not encourage us to dismiss Taylor's claim

on summary judgment on the theory that they would be

useless; that would have the bizarre implication that the

more demanding a plaintiff's accommodations were, the

more likely the plaintiff is to survive summary judgment.

Plaintiffs who wish to participate in good faith in the

interactive process are more likely to have scaled back their

demands and asked for modest accommodations. More

importantly, we think it is worth remembering that

sometimes comparatively modest accommodations can reap

large returns in how well a disabled employee performs.

_________________________________________________________________

11. The EEOC compliance manual states that: "Supervisors play a

central role in achieving effective reasonable accommodations for their

employees. In some circumstances, supervisors may be able to adjust

their methods as a reasonable accommodation by, for example,

communicating assignments, instructions, or training by the medium

that is most effective for a particular individual (e.g., in writing, in

conversation, or by electronic mail)." 2 EEOC Compliance Manual,

Enforcement Guidance for Psychiatric Disabilities, at 26. However, the

manual continues that "[r]easonable accommodation... does not require

lowering standards or removing essential functions of the job." Id. at 26,

n. 62. We would hasten to add that a disabled employee is not entitled

to a supervisor ideally suited to his or her needs. We held in Gaul, for

instance, that an employee is not entitled to transfer whenever the

employee deems that his co-workers are causing him inordinate stress.

134 F.3d at 579.

32

We want to reiterate the limits of the interactive process.

We are not holding that an employer who has made a good

faith effort to accommodate must be saddled with a

secretary who consistently makes typos and fails to deliver

messages. Nor do we hold that an employer cannot

introduce a new computer system or switch an employee to

a less forgiving supervisor. What we do hold is that an

employer, having received adequate notice of an employee's

disability and desire for accommodations, cannot fail to

engage the employee in the interactive process offinding

accommodations, increase the disabled employee's job

responsibilities, and then simply document the employee's

failures.

To show that an employer failed to participate in the

interactive process, a disabled employee must demonstrate:

1) the employer knew about the employee's disability; 2) the

employee requested accommodations or assistance for his

or her disability; 3) the employer did not make a good faith

effort to assist the employee in seeking accommodations;

and 4) the employee could have been reasonably

accommodated but for the employer's lack of good faith.

Mengine, 114 F.3d at 420; Bultemeyer, 100 F.3d at 1285;

Taylor, 93 F.3d at 165.

We believe that a reasonable jury could conclude that

Taylor requested accommodations, that the school district

made no effort to help Taylor find accommodations and was

responsible for the breakdown in the process, and that

there were accommodations that the school district could

have provided that would have made Taylor able to perform

the essential functions of her job. If a jury concludes that

the school district was not responsible for the breakdown in

the interactive process, Taylor must demonstrate that a

specific, reasonable accommodation would have allowed her

to perform the essential functions of her job.

We have viewed the evidence in the light most favorable

to Taylor, as we must on summary judgment. The school

district is, of course, free on remand to argue that it did not

receive notice of Taylor's request for accommodation, that it

tried to assist Taylor in seeking accommodations, or,

assuming the school district was responsible for the

breakdown in the process, that no accommodation would

33

have allowed Taylor to perform the essential functions of

her job.12

IV

For the foregoing reasons, we will reverse the March 20,

1998 grant of summary judgment by the District Court and

remand the case for further proceedings.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________

12. The District Court treated Taylor's case as possibly raising a

disparate-treatment claim. Because Taylor represents on appeal that she

did not intend to raise such a claim, we need not reach the issue.

34