Walton v. Mental Health Assn

Opinions of the United

1999 Decisions States Court of Appeals

for the Third Circuit

2-23-1999

Walton v. Mental Health Assn

Precedential or Non-Precedential:

Docket 97-2000

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Filed February 23, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-2000

SANDRA J. WALTON,

Appellant

v.

MENTAL HEALTH ASSOCIATION OF SOUTHEASTERN

PENNSYLVANIA

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. No. 96-cv-05682)

District Judge: Honorable Marjorie O. Rendell

ARGUED OCTOBER 7, 1998

BEFORE: Becker, Chief Judge, Nygaard, and

Noonan,* Circuit Judges.

(Filed February 23, 1999)

Ronald V. Cole (Argued)

Suite 2330

1601 Market Street

Philadelphia, PA 19103

Attorney for Appellant

_________________________________________________________________

*The Honorable John T. Noonan, Jr., Circuit Judge of the United States

Court of Appeals for the Ninth Circuit, sitting by designation.

Nancy C. Ryan (Argued)

Stouffer & Ryan

1515 Market Street

Suite 601

Philadelphia, PA 19102

Attorney for Appellee

OPINION OF THE COURT

NYGAARD, Circuit Judge,

Appellant, Sandra Walton, was fired by the Mental Health

Association of Southeastern Pennsylvania ("MHASP") and

sued under the Americans with Disabilities Act of 1990

("ADA"), 42 U.S.C. S 12101 et seq. (1994), claiming

harassment, disparate treatment, and failure to

accommodate. The District Court granted summary

judgment for MHASP on these claims and denied Walton's

motion to amend the complaint to add a discrimination

claim based on her obesity as a perceived disability. Walton

now challenges these decisions. We will affirm.

I.

The facts are generally uncontested and are accurately

set forth in the District Court's Memorandum. See Walton

v. Mental Health Assoc. of Southeastern Pa., No. CIV.A.96-

5682, 1997 WL 717053 (E.D. Pa. Nov. 17, 1997). We will

summarize.

Walton worked for MHASP, an advocacy organization for

people with mental illness, from January 1990 until she

was terminated on January 6, 1994. She was the Director

of Advocacy Consumer Training for New Opportunities

("ACT NOW"), a program within MHASP that provided

employment training and job placement for mental health

services consumers. As Director, Walton was responsible

for managing the program and supervising its staff. In

1992, Walton was assigned a new supervisor, Carmen

Meek. The relationship between the two was not good.

Like approximately eighty percent of MHASP's employees,

Walton is a mental health services consumer. Specifically,

2

she suffers from depression. As a result, she was

hospitalized six times between March 1990 and December

1993. Because of her illness, Walton was absent twenty-one

days in 1990, forty days in 1991, fifty days in 1992, and

fourteen and a half days in 1993 before taking leave on

October 26, 1993. On that date, Walton was hospitalized

for her illness, and she did not return to work before she

was terminated in January 1994. MHASP policy provides

eighteen days of sick leave per year.

For over a year before Walton was terminated, the results

of the ACT NOW program -- measured by actual job

placement -- had declined significantly. ACT NOW was

funded through grants from the Office of Vocational

Rehabilitation and the City of Philadelphia. The drop in job

placements led MHASP executives to fear for the continued

sponsorship and existence of the program.

Upon being hospitalized in October 1993, Walton

requested a leave of absence without pay. MHASP's Human

Resources Manager granted her request in a letter in which

he stated: "In the near future would you please let me know

the expected duration of your leave. It is our policy that a

leave without pay should not exceed 6 months." Walton

wrote MHASP a letter indicating that her doctor did not

want her to return to work until November 22 and that she

intended to be back on that date. She did not return on

that date. On December 30, Walton's doctor wrote MHASP

to inform them that Walton had regressed and that she

should not return to work for several weeks. On January 4,

1994, Walton notified MHASP that she would report to

work on January 10. On January 6, 1994, Walton was

terminated. The above facts are undisputed as are all

others material to the District Court's summary judgment

ruling.

Walton filed a discrimination complaint with the

Pennsylvania Human Relations Commission which, in turn,

lodged it with the Equal Employment Opportunity

Commission. The Human Relations Commission notified

Walton that it had found "No Cause" in its investigation of

her complaint, and she requested a Right-to-Sue Notice

from the EEOC. Walton then sued MHASP.

3

II.

Walton's first claim is that the District Court erred by

denying her petition to amend the complaint to add a claim

of discrimination based on the perceived disability of

obesity. We review the Court's decision for abuse of

discretion. See Berger v. Edgewater Steel Co., 911 F.2d

911, 916 (3d Cir. 1990).

When a complaint is not amended within the time that

amendments are allowed as a matter of course, a party may

amend its complaint "by leave of court or by written

consent of the adverse party; and leave shall be freely given

when justice so requires." Fed. R. Civ. P. 15(a).

Nevertheless, a trial court may consider whether the

amendment would be futile. See F.D.I.C. v. Bathgate, 27

F.3d 850, 874 (3d Cir. 1994). Here, the District Court held

that Walton's proposed new claim failed to state a claim

upon which relief could be granted. See Walton, 1997 WL

717053, at *15.

The ADA defines disability as "A) a physical or mental

impairment that substantially limits one or more of the

major life activities . . . ; B) a record of such an impairment;

or C) being regarded as having such an impairment." 42

U.S.C. S 12102(2). Walton argues that MHASP perceived her

as disabled because she is obese, and that this claim,

therefore, falls under the third prong of the disability

definition.

We have not recognized a cause of action against an

employer who discriminates against an employee because it

perceives the employee as disabled by obesity. Nor need we

do so now because Walton has not claimed that MHASP

discriminated against her because it perceived her as

disabled by some impairment that substantially limits one of

her major life activities.

Although the ADA does not define "major life activities,"

see Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996),

an individual is substantially limited in a major life activity

when she is "[u]nable to perform a major life activity that

the average person in the general population can perform"

or is "[s]ignificantly restricted as to the condition, manner

or duration under which [she] can perform a particular

4

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).

Major life activities include "functions such as caring for

oneself, performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning, and working." Id. S 1630.2(i).

Walton asserts that MHASP did not release a promotional

video in which she appeared because she was too obese.

She apparently argues that, if MHASP refused to publish

the video for this reason, it must have perceived her as

substantially limited in her ability to work because

appearing in the video was a part of her job. However,

"[w]ith respect to the major life activity of working[, t]he

term substantially limits means significantly restricted in

the ability to perform either a class of jobs or a broad range

of jobs in various classes as compared to the average

person having comparable training, skills and abilities." Id.

S 1630.2(j)(3)(i). Furthermore, "[t]he inability to perform a

single, particular job does not constitute a substantial

limitation in the major life activity of working." Id.

Even if MHASP did cancel the video because of Walton's

appearance (a fact MHASP disputes), her claim fails. By

asserting that MHASP prevented her from performing a

single minor aspect of her job, Walton simply has not

claimed that MHASP perceived her as substantially limited

in the major life activity of working under this standard.

Nor is there any indication that MHASP perceived her

obesity as limiting her other major life activities.

Finally, Walton argues that the District Court first asked

her to amend the complaint and then ignored the petition

to amend once filed. See Appellant's Brief at 26-27. This is

incorrect. The District Court did refer to Walton's delay in

petitioning to amend. It did not, however, ignore the

petition. Nor did the Court deny the petition because

Walton delayed. Rather, the District Court addressed

Walton's attempted amendment in the order granting

summary judgment. It denied the petition because Walton

failed therein to state a claim upon which relief could be

granted. Walton was not prejudiced by the Court's decision

5

to deny the petition to amend,1 and the Court did not abuse

its discretion.

III.

Walton also appeals the District Court's conclusion that

she did not produce sufficient evidence of an objectively

hostile work environment to make out a prima facie case of

harassment. The ADA states that "[n]o covered entity shall

discriminate against a qualified individual with a disability

because of the disability of such individual in regard to . . .

[the] terms, conditions, and privileges of employment." 42

U.S.C. S 12112(a). We have not previously determined

whether the ADA creates a cause of action for harassment

under this section. The District Court proceeded on the

assumption that a claim for a hostile workplace -- i.e.,

harassment -- could be stated under the ADA, see Walton,

1997 WL 717053, at *12, and the parties on appeal have

followed suit.

The Supreme Court has held that language in Title VII

that is almost identical to the above language in the ADA

creates a cause of action for a hostile work environment.

See Patterson v. McLean Credit Union, 491 U.S. 164, 180,

109 S. Ct. 2363, 2374 (1989). In addition, we have

recognized that:

[i]n the context of employment discrimination, the ADA,

ADEA and Title VII all serve the same purpose--to

prohibit discrimination in employment against

members of certain classes. Therefore, it follows that

the methods and manner of proof under one statute

should inform the standards under the others as well.

Indeed, we routinely use Title VII and ADEA caselaw

interchangeably, when there is no material difference

in the question being addressed.

Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 157 (3d Cir.

1995). This framework indicates that a cause of action for

harassment exists under the ADA. However, like other

_________________________________________________________________

1. Walton also requested amendment in order to assert a harassment

claim. The District Court treated this claim as having been stated in the

original complaint. See Part III, infra.

6

courts,2 we will assume this cause of action without

confirming it because Walton did not show that she can

state a claim.

A claim for harassment based on disability, like one

under Title VII, would require a showing that: 1) Walton is

a qualified individual with a disability under the ADA; 2)

she was subject to unwelcome harassment; 3) the

harassment was based on her disability or a request for an

accommodation; 4) the harassment was sufficiently severe

or pervasive to alter the conditions of her employment and

to create an abusive working environment; and 5) that

MHASP knew or should have known of the harassment and

failed to take prompt effective remedial action. See

McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558,

563 (5th Cir. 1998); see also Vendetta v. Bell Atlantic Corp.,

No. CIV.A. 97-4838, 1998 WL 575111, at *9 (E.D. Pa. Sep.

8, 1998).3

_________________________________________________________________

2. Many courts have proceeded on the assumption that the ADA creates

a cause of action for a hostile work environment but avoided confirming

that the claim exists. See, e.g., Wallin v. Minnesota Dept. of

Corrections,

153 F.3d 681, 687-88 (8th Cir. 1998), petition for cert. filed, 67

U.S.L.W.

3410 (U.S. Dec. 21, 1998) (No. 98-1007) ("We will assume, without

deciding, that such a cause of action exists."); Moritz v. Frontier

Airlines,

Inc., 147 F.3d 784, 788 (8th Cir. 1998) ("Although we are uncertain

whether such a cause of action exists, . . . [plaintiff] has failed to

establish a prima facie case of discrimination"); McConathy v. Dr.

Pepper/Seven Up Corp., 131 F.3d 558, 563 (5th Cir. 1998) (noting that

various district courts have assumed the claim's existence and assuming

its existence in order to dispense with appeal but stating that "[t]his

case

should not be cited for the proposition that the Fifth Circuit recognizes

or rejects an ADA cause of action based on hostile environment

harassment"). Our District Courts, likewise, have presumed the claim's

existence. See, e.g., Vendetta v. Bell Atlantic Corp., No. CIV.A. 97-4838,

1998 WL 575111 (E.D. Pa. Sep. 8, 1998) (noting that because the

Supreme Court has read a cause of action for harassment into Title VII,

the same is appropriate under the ADA). At least one circuit has

considered the claim without disavowing it. See Keever v. City of

Middletown, 145 F.3d 809, 813 (6th Cir.), cert. denied, 119 S. Ct. 407

(1998). Indeed, we have not discovered any case holding that the claim

cannot be asserted under the ADA.

3. Although the District Court did not mention the fifth element, it

correctly found that Walton had failed to meet others, and thus its

omission was harmless.

7

To prove an "abusive work environment" under Title VII,

the environment must be shown to be objectively hostile or

abusive, and the plaintiff must have perceived it as a

hostile or abusive environment. See Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 22, 114 S. Ct. 367, 371 (1993). Walton

would not need to prove that she suffered injury or that her

psychological well-being was seriously affected. See id., 114

S. Ct. at 371. She would, however, be called upon to show

that the harassment was "sufficiently severe or pervasive to

alter the conditions of [her] employment and create an

abusive working environment." Id. at 21, 114 S. Ct. at 370

(citing Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67, 106 S.

Ct. 2399, 2405 (1986)). To judge whether such an

environment is hostile or abusive, we must consider all

the circumstances, including "the frequency of the

discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance;

and whether it unreasonably interferes with an employee's

work performance." Id. at 23, 114 S. Ct. at 371. Walton

simply has not demonstrated that the asserted harassment

was pervasive or severe enough to meet the Harris

standard.

Walton asserts that various comments and actions by her

supervisor, Meek, amount to harassment,4 and she argues

that the District Court resolved disputed material factual

issues to rule on this claim at the summary judgment level.

We disagree.

Although it is clear that the relationship between Walton

and Meek was poor, Walton has not asserted facts that

_________________________________________________________________

4. The primary actions pointed to by Walton are: (1) Meek told Walton

that she would be fired if she did not attend the graduation ceremony for

ACT NOW (Walton is agoraphobic and later received permission not to

attend the graduation from one of Meek's superiors); (2) Meek once told

Walton she was "manic-depressive"; (3) Meek called her ten days

consecutively when she was first hospitalized, asking each day when she

would be returning to work (this upset Walton to the point that her

doctor asked her to request that Meek stop calling); (4) Meek stated in

her deposition that she believes persons with mental illness have

impaired judgment when they are suffering from their illness; and (5)

Meek forbade Walton's staff from speaking with her about the ACT NOW

program while she was hospitalized.

8

would allow a reasonable jury to find that Meek harassed

her because of her disability. See, e.g., Uhl v. Zalk Josephs

Fabricators, Inc., 121 F.3d 1133, 1137 (7th Cir. 1997) ("A

personality conflict doesn't ripen into an ADA claim simply

because one of the parties has a disability."). The fact that

Meek's behavior toward Walton may have been offensive

does not indicate that it was based on Walton's disability.

Finally, we agree with the District Court's conclusion that,

"[a]ll of these alleged incidents -- considered both

individually and together -- fall far short of meeting the

Harris standard." Walton, 1997 WL 717053, at *14.

IV.

Walton's disparate treatment claim asserted that MHASP

fired her while she was on leave because of her disability.

She now argues that she presented enough evidence to

raise an inference of pretext regarding MHASP's stated

reason for firing her, and thus to avoid summary judgment.

The McDonnell Douglas Title VII burden shifting rules apply

to claims of discriminatory treatment under the ADA. See

Lawrence v. National Westminster Bank N.J., 98 F.3d 61, 68

& n.7 (3d Cir. 1996). To establish a prima facie case of

disparate treatment, Walton "must prove by a

preponderance of the evidence that (1) [she] belongs to a

protected class; (2) [she] was qualified for the position; (3)

[she] was dismissed despite being qualified; and (4) [she]

was ultimately replaced by a person sufficiently outside the

protected class to create an inference of discrimination." Id.

at 68. The District Court assumed that Walton had stated

a prima facie case of discrimination under the ADA. 5 See

Walton, 1997 WL 717053, at *5.

Once the employee has established a prima facie case,

"the burden of production shifts to the employer to

`articulate some legitimate, nondiscriminatory reason for

the employee's rejection.' " See Fuentes v. Perskie, 32 F.3d

_________________________________________________________________

5. MHASP argued that Walton was not "qualified" under the ADA due to

her significant absences and therefore could not state a prima facie

discrimination claim. The District Court held that whether attendance

was essential to the job was a "hotly contested" fact in this case and

therefore construed the question in Walton's favor.

9

759, 763 (3d Cir. 1994) (quoting McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973)).

The District Court determined that MHASP had articulated

a legitimate, nondiscriminatory reason when it claimed that

Walton's failure to provide ACT NOW with the necessary

leadership and her extensive absences had led it to fear for

the program's future and therefore to dismiss Walton. See

Walton, 1997 WL 717053, at *6.

Because MHASP stated a "legitimate, nondiscriminatory"

reason for its action, Walton, to defeat summary judgment,

had to "point to some evidence, direct or circumstantial,

from which a fact finder could reasonably either (1)

disbelieve the employer's articulated legitimate reasons; or

(2) believe that an invidious discriminatory reason was

more likely than not a motivating or determinative cause of

the employer's action." Lawrence, 98 F.3d at 66. These

options enable a plaintiff to survive summary judgment,

without direct evidence, by producing "sufficient evidence to

raise a genuine issue of fact as to whether the employer's

proffered reasons were not its true reasons for the

challenged employment action."6 Sheridan v. E.I. DuPont de

Nemours and Co., 100 F.3d 1061, 1067 (3d Cir. 1996) (en

banc).

The defendant's intent in dismissing the plaintiff is a

factual question. See Chippolini v. Spencer Gifts, Inc., 814

F.2d 893, 899 (3d Cir. 1987) (en banc). Therefore, if Walton

can point to evidence that calls into question MHASP's

intent, she "raises an issue of material fact which, if

genuine, is sufficient to preclude summary judgment." Id. A

dispute regarding a material fact is genuine "if the evidence

is such that a reasonable jury could return a verdict for the

nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248, 106 S. Ct. 2505, 2510 (1986).

The District Court concluded that Walton had not offered

any evidence from which a reasonable jury couldfind that

MHASP's proffered reason for terminating Walton was

_________________________________________________________________

6. Of course, at trial, the plaintiff maintains the burden to persuade the

jury that the reason was pretextual and that the real reason for the

employer's action was discrimination. See St. Mary's Honor Center v.

Hicks, 509 U.S. 502, 511 n.4, 113 S. Ct. 2742, 2749 n.4 (1993).

10

pretextual. See Walton, 1997 WL 717053, at *7-10. Walton

argues that she produced both direct and indirect evidence

that MHASP's stated reasons were pretextual. She did not,

and we will affirm the District Court.

A. Direct Evidence of Pretext

Walton points to evidence that the high attrition rate in

the ACT NOW program, which MHASP claimed showed a

declining level of productivity in the program,"had long

been known to defendant," Appellant's Brief at 42, and was

due to such uncontrollable factors as the program

participants' "unreasonable expectations, insubordination,

absenteeism and drug abuse." Id. She asserts that she had

no control over the attrition rate. This argument is not

convincing. MHASP's concern with the program's declining

success rate and its reliance on the faltering results in its

decision to dismiss Walton was reasonable as long as

earlier program participants were faced with similar

difficulties. Walton did not claim that they were not.

Walton notes that it was Meek who pointed out

numerous faults in the program and claims that her

veracity is in doubt because she is the person who

purportedly harassed Walton. However, MHASP's

knowledge of ACT NOW's faltering results and of Walton's

significant absences did not depend on Meek's reports, and

Walton has not suggested that the data MHASP relied upon

was incorrect.7

B. Indirect Evidence of Pretext

Walton asserts that the timing and circumstances

surrounding her dismissal are sufficient to support an

inference that MHASP's stated reasons for terminating her

are pretextual. Factors including "the timing of an

employee's dismissal, and the employer's treatment of the

employee could raise an inference of pretext which would

make summary judgment for the employer inappropriate."

Josey v. John R. Hollingsworth Co., 996 F.2d 632, 638-39

(3d Cir. 1993).

_________________________________________________________________

7. Walton's assertion that MHASP cannot claim that it fired her for her

absences because her absences were largely a result of MHASP's abusive

treatment is unsupported by the facts. See Part III, supra.

11

Walton cites White v. Westinghouse Electric Co., 862 F.2d

56 (3d Cir. 1989), for authority that the circumstances

surrounding her discharge may be sufficient to raise a

genuine issue of material fact and preclude summary

judgment. White was dismissed when he was three months

short of serving thirty years, upon which he would have

been entitled to greater retirement benefits and the option

to retire at a younger age. We decided that these

circumstances indicated that White was discriminated

against based on his age. However, the rationale behind

White was rejected by the Supreme Court in Hazen Paper

Co. v. Biggins, 507 U.S. 604, 113 S. Ct. 1701 (1993). In

Hazen, the Court considered a claim under the ADEA by an

employee who had been fired just before his pension would

have vested. In holding that the employer did not violate

the ADEA by firing the employee to prevent his pension

from vesting, the Court emphasized that a firing that may

be wrongful in one sense (to purposefully avoid paying

benefits, for example) is not necessarily wrongful under the

ADEA (or, in Walton's case, the ADA) "unless the protected

trait actually motivates the employer's decision." Id. at 610,

611-12, 113 S. Ct. at 1706, 1707-08. Therefore, our

inference in White that a wrongful firing that occurred

because an employee was about to gain increased pension

benefits indicated a wrongful firing based on age was

unfounded. Hazen teaches that we must not infer a

particular type of discrimination from circumstances that

merely indicate a wrongful firing of some sort. That is just

what Walton is asking us to do.

To consider timing and/or employee treatment in relation

to a dismissal as evidence of discrimination, there must be

some logical connection between the timing or treatment

and the possibility of the particular discrimination at issue.

For example, in Josey, 996 F.2d at 632, a company owned

by seven white shareholder employees adopted a new

preference for hiring and maintaining shareholders in the

midst of unrest following the promotion of a black

nonshareholder supervisor ahead of a white shareholder.

We found that the timing of the adoption of the new

company policy preferring shareholders, together with facts

that indicated racial prejudice by at least one shareholder,

12

was sufficient to create an issue of fact as to whether the

action was racially motivated. See id. at 640-41.

Walton asserts that MHASP's hiring of her replacement a

month before she was notified that she had beenfired

showed that the reasons it gave for her dismissal were

pretextual. Although she was fired while on leave and was

not given notice that she had been replaced until she was

about to return to work, it would be wrong to infer from

this that MHASP's decision to dismiss her was based on her

disability. Here, nothing connects the timing of the

dismissal or the related circumstances with a

discriminatory motive. Rather, the reverse is true. Walton

was let go during her longest extended absence. This would

clearly have brought any concerns that MHASP previously

had regarding her ability to do her job to a head and

increased the pressure on the association to replace her.

V.

Finally, Walton argues that the District Court erred by

holding that her proposed accommodation (being left on

extended leave) created an undue burden on MHASP.

Under the ADA, discrimination includes: "not making

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

hardship entails "significant difficulty or expense in, or

resulting from, the provision of the accommodation." 29

C.F.R. S 1630, App. S 1630.2(p).

The circuits disagree whether the burdens of production

and persuasion on the issues of reasonable accommodation

and undue burden are properly placed on the plaintiff or

the defendant, or are divided between them. See Borkowski

v. Valley Cent. Sch. Dist., 63 F.3d 131, 136-37 (2d Cir.

1995) (recounting the various approaches). We now, like the

13

District Court, "chart a middle course," id. at 137, and

adopt the Borkowski approach:8

First, the plaintiff bears the burden of proving that she

is otherwise qualified; if an accommodation is needed,

the plaintiff must show, as part of her burden of

persuasion, that an effective accommodation exists

that would render her otherwise qualified. On the issue

of reasonable accommodation, the plaintiff bears only

the burden of identifying an accommodation, the costs

of which, facially, do not clearly exceed its benefits.

These two requirements placed on the plaintiff will

permit district courts to grant summary judgments for

defendants in cases in which the plaintiff 's proposal is

either clearly ineffective or outlandishly costly.

Id. at 139.

Following a prima facie showing by the plaintiff that a

reasonable accommodation exists which would make her

qualified, the burden shifts to the defendant to prove either

that the accommodation is unreasonable or that it creates

an undue hardship for the defendant. See id. at 138. These

two options before the defendant effectively "merge"

because "in practice meeting the burden of nonpersuasion

on the reasonableness of the accommodation and

demonstrating that the accommodation imposes an undue

hardship amount to the same thing." Id.

This distribution of burdens is both fair and efficient. The

employee knows whether her disability can be

accommodated in a manner that will allow her to

successfully perform her job. The employer, however, holds

the information necessary to determine whether the

proposed accommodation will create an undue burden for

it. See id. at 137. Thus, the approach simply places the

burden on the party holding the evidence with respect to

the particular issue.

Walton asserts that MHASP should have accommodated

_________________________________________________________________

8. We previously indicated, in dictum, our preference for the Borkowski

approach. See Shiring v. Runyon, 90 F.3d 827 (3d Cir. 1996) (a case

under the Rehabilitation Act).

14

her by continuing her leave of absence without firing her.9

The District Court concluded that Walton had made a facial

showing that unpaid leave was potentially a reasonable

accommodation for her sickness by introducing the letter

with which MHASP accepted her request for unpaid leave.

See Walton, 1997 WL 717053, at *11. Addressing MHASP's

decision to end its grant of unpaid leave, however, the

Court reasoned that the "same evidence that demonstrates

the legitimate, nondiscriminatory reason for firing plaintiff

. . . also demonstrates that the accommodation that

plaintiff seeks [continuation of her leave] created an undue

burden for the organization." Id. at *12. Therefore, the

Court held, MHASP had produced "sufficient

uncontroverted evidence to meet the burden of

demonstrating that the requested accommodation, although

possible, was not reasonable." Id.

We will affirm because Walton's requested

accommodation -- continued leave -- would have created

_________________________________________________________________

9. Walton originally alleged that MHASP failed to reasonably

accommodate her on a number of other occasions. She raises only this

instance on appeal.

In addition, she now argues that she could have been rehired "in a less

critical position than Director." In her reply brief, Walton further

extends

this argument by asserting that, because MHASP hired her replacement

without telling her, it failed to make a "good faith effort to communicate

with her regarding necessary and available accommodations."

MHASP responds that this argument is untimely because it was not

asserted by the plaintiff before the District Court. Walton originally

complained that "[d]efendant failed to reasonably accommodate

plaintiff 's request for a leave of absence without pay by violating its

own

stated policy respecting the duration of such absences." (The proposed

amended complaint did not alter this claim.) The District Court declined

to consider the reassignment issue because Walton did not raise the

issue in her complaint. See Walton, 1997 WL 717053, at *10 n.12. This

was not in error.

As to Walton's attempt to raise the issue before us,"absent exceptional

circumstances, an issue not raised in the district court will not be heard

on appeal." Altman v. Altman, 653 F.2d 755, 758 (3d Cir. 1981) (citation

omitted). In exceptional circumstances or when manifest injustice would

otherwise result, public interest can require that the issue be heard. See

id. This case does not present such circumstances.

15

an undue burden on MHASP. Reasonable accommodations

are "[m]odifications or adjustments to the work

environment, or to the manner or circumstances under

which the position held or desired is customarily

performed, that enable a qualified individual with a

disability to perform the essential functions of that

position." 29 C.F.R. S 1630.2(o)(1)(ii). Although unpaid leave

supplementing regular sick and personal days might, under

other facts, represent a reasonable accommodation, an

employer does not have to allow leave of this type to the

extent that MHASP had already granted it to Walton. A

blanket requirement that an employer allow such leave is

beyond the scope of the ADA when the absent employee

simply will not be performing the essential functions of her

position.

Walton attempts to use MHASP's past grants of unpaid

leave against it by arguing that these instances show that

the leave was a reasonable accommodation. Here, Holbrook

v. City of Alpharetta, Georgia, 112 F.3d 1522 (11th Cir.

1997), is informative. In Holbrook, the city accommodated a

visually-impaired police detective for a significant period of

time with respect to essential functions of his job which he

could not perform without assistance. The court held that

the city's decision to cease the accommodations did not

violate the ADA because the city's original accommodations

exceeded the level that the law required. See id. at 1528.

Similarly, the unpaid leave granted to Walton exceeded the

requirement of reasonable accommodation under the ADA,

and MHASP's decision to discontinue the accommodation

does not give her a cause of action against it.

VI.

In sum, Walton has not convinced us that the District

Court erred by granting MHASP's motion for summary

judgment on her claims of harassment, disparate

treatment, and failure to accommodate. Nor has she shown

that the District Court erred by not allowing her to amend

her complaint. Accordingly, we will affirm.

16

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

17