Skerski v. Time Warner Cable Co.

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

7-9-2001

Skerski v. Time Warner Cable

Precedential or Non-Precedential:

Docket 00-3199

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Filed July 9, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-3199

LARRY S. SKERSKI,

Appellant

v.

TIME WARNER CABLE COMPANY, a Division of TIME

WARNER ENTERTAINMENT COMPANY , L.P., aka TIME

WARNER NEWHOUSE ANNEX CORPORATION, aka

TWE-ADVANCE/NEWHOUSE

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 98-cv-00341)

District Judge: Hon. Donetta W. Ambrose

Argued January 8, 2001

Before: SLOVITER, ROTH, and RENDELL,

Circuit Judges

(Filed: July 9, 2001)

William A. Penrod

Susan A. Meredith (Argued)

Caroselli, Beachler, McTier nan

& Conboy

Pittsburgh, PA 15222

Attorneys for Appellant

William G. Merchant (Argued)

Papernick & Gefsky

Monroeville, PA l5l46

Attorney for Appellee

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Appellant Larry S. Skerski filed suit in the United States

District Court for the Western District of Pennsylvania

against his former employer Time W arner Cable Co.,

alleging discrimination on the basis of a disability in

violation of the Americans with Disabilities Act ("ADA"), 42

U.S.C. S 12101 et seq. The District Court granted Time

Warner's motion for summary judgment and Skerski

appeals.

I.

At all times relevant to this action, appellee Time Warner

and its predecessor in interest operated a television cable

franchise in the Coraopolis/Moon Township ar ea of

Western Pennsylvania. Time Warner's predecessor, New

Channels,1 hired Skerski in 1982 to upgrade cable

converters in customers' homes. Several months later ,

Skerski was trained and began working as a cable service

technician to install and disconnect cable television service

for customers. As part of his job as an installer technician,

Skerski serviced cable wires at aerial cable plants (hereafter

_________________________________________________________________

1. Time Warner refers to this company as "New Channels" whereas

Skerski refers to it as "Astro Cablevision" or "Newhouse Annex

Corporation." We shall refer to it as"New Channels."

2

referred to as "overhead work") and underground plants

(hereafter referred to as "underground work").2 Performing

the overhead work required Skerski to climb ladders, poles,

and towers, and work at heights. In his deposition

testimony, Skerski first asserted that "ther e was more

underground [work] than over head [work]," app. at 352, but

he later agreed that approximately 50% of his job required

climbing, app. at 41-42. The written description of Skerski's

job prepared by New Channels included"repetitive . . . pole

climbing . . . and ladder climbing" among the"Physical

Tasks." App. at 143.

In May 1993, more than 10 years after he began working

as an installer technician at New Channels, Skerski began

experiencing dizziness, nausea, and irregular heartbeats

while working at heights. In June 1993, Skerski was

examined by Dr. Stephen G. Brodsky and was diagnosed as

having a panic and anxiety disorder associated with

premature ventricular contractions of the heart. Dr.

Brodsky referred Skerski to Dr . Stuart L. Steinberg, a

psychologist, for his panic condition. Dr. Steinberg

recommended that Skerski cease climbing ladders and

poles, and otherwise working at heights.

Upon learning of Dr. Steinberg's diagnosis, Skerski's

supervisor at New Channels, David Kane, modified

Skerski's schedule so as to permit him to continue working

as an installer technician. Thus, New Channels limited

Skerski's assignments to underground work. The

assignments were distributed each day at Kane's direction.

Skerski continued to perform under this"modified

arrangement," app. at 361, after New Channels was

acquired by Time Warner in March 1995, and until

January 1997.

Under Time Warner, Skerski's job effectively remained the

same. Time Warner's written description of Skerski's

position listed the nine essential functions as:

_________________________________________________________________

2. There are occasional refer ences in the briefs and in the Appendix to

"ground work" as well, but there is no attempt to distinguish such work

from "underground work." We assume there is no difference, but if there

is, it is clear that neither form of work involves climbing. For our

purposes, we will simply discuss "undergr ound work."

3

1. Conducts CLI testing and repairs, checks amplifier

levels in the feeder system for signal quality, and

handles routine plant maintenance.

2. Performs FSM calibration and r epairs system

problems (i.e., power supplies, active and passive

devices and cable).

3. Responds to and completes subscriber technical

service calls. Repairs include, but are not limited

to: drop wiring, matching xformers, converter

replacement, and TV fine tuning.

4. Repairs and replaces strand, lashing, pole line

transfers and general construction.

5. Installs new trunk, feeder cables, and associated

hardware.

6. Installs and maintains subscriber contr ol and

distribution system for multi-subscriber systems.

7. Maintains and stocks necessary materials and

tools for company vehicle.

8. Records data on system equipment and

operation/services and accurately completes all

paperwork as assigned.

9. Recognizes, practices, and enforces safety rules

and procedures when performing technical tasks.

App. at 145-146. Each essential function described aspects

of that function. One of the four aspects under the fourth

essential function was "[m]ay climb poles to perform line

transfers." App. at 145. The position description also

included "climbing" within the "Special Skills, Knowledges

and Abilities" section. As in the New Channels' description,

the "Physical Requirements" section included "[c]limbing on

ladders, telephone poles, and/or towers." App. at 147.

At some point in 1995, Kane resigned due to poor health

and was temporarily replaced by Donna Gruseck before

Time Warner hired Richar d Hanning in the fall of 1996 to

serve as technical operations manager. In that position,

Hanning was Skerski's immediate supervisor. In October

1996, Hanning gave Skerski a below-standard per formance

4

review because of his inability to climb. T ime Warner

concedes that otherwise "Skerski's perfor mance was

superior." Br. of Appellee at 8. However, at that time

Hanning told Skerski that Time War ner could not permit

him to continue working on his modified no-climbing

schedule. According to Skerski, this was thefirst time since

the onset of his panic and anxiety disorder in 1993 that

anyone at either New Channels or Time W arner had

demanded that he climb.

Skerski described the conversation in his deposition. He

testified that he told Hanning that he could continue to

climb "with an accommodation," and asked if he"could

have a bucket truck," which he had used befor e

successfully, even after his panic disorder was diagnosed.

App. at 83. Hanning responded that Time W arner didn't

have any bucket trucks to give him, but Skerski believed it

did have an extra bucket truck, which he referr ed to as "an

older one." App. at 84. Skerski said that he asked Hanning

that he be permitted to continue with his underground

work but that Hanning responded, " `Y ou need to be 100

percent.' He said Time War ner will not accommodate me,

nor do they have to." App. at 85.

At about this time, Time Warner offered Skerski the

opportunity to complete a 90-day training pr ogram to allow

him to re-acquire the climbing skills necessary to continue

in his job as a technician. In a perfor mance review memo

dated October 28, 1996, Hanning wrote that"[f]ailure to

successfully complete [the 90-day program] and the interim

goals will lead to additional disciplinary action up to and

including termination." App. at 156.

Skerski attempted, but was unable to complete the

training program. He repeatedly complained, "I can't be

doing this" because of his anxiety disorder . App. at 388. Dr.

Steinberg, who had continued to treat Skerski, sent a letter

dated November 21, 1996 reinforcing his prior medical

opinion that, inter alia, "[t]he fear of panic attacks is

incapacitating and interferes with [Skerski's] work and his

private life." App. at 150. Time War ner then stopped the

training program without explanation.

It was Time Warner's intention to terminate Skerski's

employment as an installer technician in light of his

5

continued inability to climb. It did, however , offer him as an

alternative to termination a newly-cr eated warehouse

position that paid considerably less than the technician

position -- $12.50 per hour in the warehouse compared to

the $19.45 per hour he had received as a technician. This

may have been in response to Skerski's letter dated

November 24, 1996, expressing his inter est in a newly-

created position in the warehouse, although Skerski made

clear in that letter that he preferred to continue working in

the same capacity as he had worked in the pr evious three

years. At the end of January 1997, Skerski accepted the

warehouse position but stated in his deposition that he did

so "only under duress," as Time W arner "[was] threatening

[him] with termination." App. at 92.

Shortly after beginning the warehouse position in early

February 1997, a position for which Skerski claims he

"didn't have the skills," app. at 92, he injur ed his back

while lifting and carrying heavy material. Skerski has not

returned to work since then, having developed severe lower

back pain. He has received workers' compensation benefits

based on his salary as an installer technician.

Skerski commenced this civil action under the Americans

with Disabilities Act in February 1998, seeking to r ecover

money damages from Time War ner and reinstatement to

his "modified duty status" as an installer technician. App.

at 13. The District Court granted Time W arner's motion for

summary judgment on January 27, 2000. See Skerski v.

Time Warner Cable Co., No. 98-341 (W.D. Pa. Jan. 27,

2000). The court determined that there is a genuine issue

of material fact as to whether Skerski is "disabled" and

acknowledged Time Warner's concession that there is a

genuine issue of material fact as to whether he suf fered "an

otherwise adverse employment decision" under the ADA.

Nonetheless it granted summary judgment to T ime Warner

because it found that climbing was an essential function of

the installer technician's job that Skerski could not perform

and that the transfer to a warehouse position was a

reasonable accommodation. Accordingly, the District Court

determined that Skerski failed to set forth sufficient

evidence to establish a prima facie case under the ADA.

6

Skerski timely filed a notice of appeal. The District Court

exercised subject matter jurisdiction over Skerski's ADA

claim pursuant to 28 U.S.C. S 1331 and we have appellate

jurisdiction over the District Court's grant of summary

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

II.

Summary judgment is appropriate where"there is no

genuine issue as to any material fact and the moving party

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

56(c). In considering a motion for summary judgment, a

court must draw all reasonable inferences from the

underlying facts in the light most favorable to the non-

moving party. See Battaglia v. McKendry, 233 F.3d 720,

722 (3d Cir. 2000). The burden is on the moving party to

demonstrate that the evidence creates no genuine issue of

material fact. See Ideal Dairy Farms, Inc. v. John Labatt,

Ltd., 90 F.3d 737, 743 (3d Cir. 1996). Once the moving

party has met this initial burden, the non-moving party

must present concrete evidence that supports each

essential element of its claim. See id. A district court's grant

of summary judgment is subject to plenary review. See

Pittston Co. Ultramar Am. Ltd. v. Allianz Ins. Co. , 124 F.3d

508, 515 (3d Cir. 1997).

The Americans with Disabilities Act prohibits employers

from discriminating based upon the known physical or

mental impairments of "a qualified individual with a

disability." 42 U.S.C. S 12112. To make out a prima facie

case under the ADA, a plaintiff must establish that s/he (1)

has a "disability," (2) is a "qualified individual," and (3) has

suffered an "adverse employment decision" as a result of

that disability. Deane v. Pocono Med. Ctr ., 142 F.3d 138,

142 (3d Cir. 1998) (en banc). The District Court found that

there were disputed issues of material fact with regard to

the first and third prongs of this test, but relied on the

second prong for its judgment. The court deter mined that

as a matter of law Skerski is not a "qualified individual"

under the ADA, and therefore held that he had failed to set

forth a prima facie case of discrimination that could survive

Time Warner's motion for summary judgment.

7

Under the ADA, a "qualified individual" is one "who, with

or without reasonable accommodation, can per form the

essential functions of the employment position that such

individual holds or desires." 42 U.S.C.S 12111(8). To satisfy

this requirement, a plaintiff mustfirst demonstrate that

s/he "satisfies the requisite skill, experience, education and

other job-related requirements of the employment position

that such individual holds or desires." Deane, 142 F.3d at

145. Second, a plaintiff must establish that s/he, "with or

without reasonable accommodation, can per form the

essential functions of the position held or sought." Id. There

is no dispute as to the first part of this analysis as Time

Warner readily concedes that Skerski was an experienced

installer technician. Rather, the issues in the instant case

revolve around the latter question.

Turning our attention to this second question requires us

to conduct another two-part inquiry. First, we must

determine whether Skerski can perfor m the essential

functions of his job without accommodation. If this is the

case, we will consider him a "qualified individual," thereby

satisfying the second part of a prima facie case under the

ADA. If Skerski cannot perform the essential functions of

his job as an installer technician without accommodation,

we must then inquire whether he can per form those same

functions with a reasonable accommodation. Again, if he

can do so, he will be considered a "qualified individual"

under the ADA. See id. at 146. If we determine that genuine

issues of material fact exist as to whether Skerski is a

"qualified individual" under the ADA, we must reverse the

District Court's grant of summary judgment to T ime

Warner and remand the case for trial.

A.

Climbing as an "Essential Function"

Skerski first argues that the District Court erred in

determining that climbing is an essential function of his job

as an installer technician as a matter of law. He contends

that, at the very least, there is a genuine issue of material

fact as to whether climbing is essential which should be

reserved for a jury.

8

We look first to the relevant agency r egulations to

determine whether climbing is an essential function of

Skerski's job as an installer technician. A job's"essential

functions" are defined in 29 C.F.R.S 1630.2(n)(1) as those

that are "fundamental," not "mar ginal." The regulations list

several factors for consideration in distinguishing the

fundamental job functions from the marginal job functions,

including: (1) whether the performance of the function is

"the reason the position exists;" (2) whether there are a

"limited number of employees available among whom the

performance of that job function can be distributed;" and

(3) whether the function is "highly specialized so that the

incumbent in the position is hired for his or her expertise."

29 C.F.R. S 1630.2(n)(2). The r egulations further set forth a

non-exhaustive list of seven examples of evidence that are

designed to assist a court in identifying the "essential

functions" of a job. They include:

(i) The employer's judgment as to which functions are

essential;

(ii) Written job descriptions prepar ed before

advertising or interviewing applicants for the job;

(iii) The amount of time spent on the job per forming

the function;

(iv) The consequences of not requiring the incumbent

to perform the function;

(v) The terms of a collective bargaining agreement;

(vi) The work experience of past incumbents in the

jobs; and/or

(vii) The current work experience of incumbents in

similar jobs.

29 C.F.R. S 1630.2(n)(3).

As is apparent, "[w]hether a particular function is

essential is a factual determination that must be made on

a case by case basis." EEOC Interpretive Guidance on Title

I of the Americans with Disabilities Act, 29 C.F .R. pt. 1630,

App. 1630.2(n) (2000) [hereafter "EEOC Interpretive

Guidance"]. It follows that none of the factors nor any of the

evidentiary examples alone are necessarily dispositive.

9

See Stone v. City of Mount Vernon, 118 F.3d 92, 97 (2d Cir.

1997).

In granting summary judgment, the District Court stated

that "reasonable jurors could onlyfind that climbing is an

essential element of the installer technician position."

Skerski, slip op. at 7. Referring to the r egulations, the

District Court found significant that Time W arner's own

judgment and the written job descriptions issued by both

Time Warner and New Channels suggested that climbing

was an essential job requirement, and that Skerski himself

admitted in his deposition that as an installer technician he

spent a considerable portion of his time climbing. The court

further dismissed Skerski's reliance on evidence that

another co-worker spent most of his time working on

underground work, explaining that "Skerski does not . . .

introduce any evidence suggesting that this co-worker

never climbs." Id. at 8 (emphasis in original).

Looking to the three factors included in S 1630.2(n)(2), it

is evident that two are not present in this case as installer

technicians are not hired solely to climb or even because of

their climbing expertise. See 29 C.F .R. S 1630.2(n)(2)(i) and

(iii). On the other hand, the other factor supports the

District Court's conclusion that climbing is an essential

function of the job of installer technician. Ther e is evidence

to suggest that Time Warner employs a limited number of

installer technicians in Skerski's work area-- only 7 or 8,

according to Skerski -- and that this small number

hampers Time Warner's ability to allow certain technicians

to avoid climbing. The significance of this factor is pointed

out in the Interpretive Guidance to S 1630.2(n), which

explains, "if an employer has a relatively small number of

available employees for the volume of work to be per formed,

it may be necessary that each employee perfor m a

multitude of different functions. Ther efore, the performance

of those functions by each employee becomes mor e critical

and the options for reorganizing the work become more

limited." EEOC Interpretive Guidance, 29 C.F .R. pt. 1630,

App. 1630.2(n).

But this is only one of the three factors. Mor eover,

consideration of the seven evidentiary examples included in

S 1630.2(n)(3) suggests caution against any pr emature

10

determination on essential functions as at least some of

them lean in Skerski's favor. Of course, as r equired by

S 1630.2(n)(3)(i), we owe some deference to Time Warner

and its own judgment that climbing is essential to the

installer technician position. And the written job

descriptions, as the District Court noted, "clearly identify

climbing as a job requirement." Skerksi, slip op. at 7.

However, describing climbing as a requir ement is not

necessarily the same as denominating climbing as an

essential function. In fact, the job descriptions pr epared by

both New Channels and Time Warner list various duties

and responsibilities under the heading "Essential

Functions," but neither identifies climbing as"essential."3

Instead, New Channels includes climbing under the

heading "Physical Tasks," app. at 143, and Time Warner

includes climbing under "Special Skills[ ]" and "Physical

Requirements," app. at 147. Although "may climb poles" is

listed as an aspect of one of Time War ner's essential

functions, the failure of both job descriptions to list

"climbing" under the heading "Essential Functions"

suggests one could view climbing as a useful skill or

method to perform the essential functions of the job but

that it is not itself an essential function of the installer

technician position.

The distinction was made by Representative Fish when

he introduced amendments to the bill that became the ADA

relating to the definition of a "qualified individual" and the

reasonable accommodation requirement and which were

incorporated into the ADA. In his comments, he stated:

[T]he essential function requirement focuses on the

desired result rather than the means of accomplishing

it. For example, in one case under the Rehabilitation

_________________________________________________________________

3. The nine essential functions set forth in T ime Warner's job

description

are set forth in the text. New Channels listed the following as "Essential

Job Functions" in its written description of Skerski's installer

technician

position: (1) "Must possess a valid driver's license, have ability to

drive

company vehicles and have a good driving recor d;" (2) "Public relations

skills to the extent that they are needed for verbal and written

communication of both technical and non-technical information to

customers and fellow employees;" and (3) "Must have mechanical ability

to use small tools." App. at 143.

11

Act, the employer required each employee to be able to

perform the job with both arms. Prewitt v. U.S. Postal

Service, 662 F.2d 292 (5th Cir. 1981). The plaintiff was

unable to do this because his disability resulted in

limited mobility in his left arm. The court found that

the essential function of the job was the ability to lift

and carry mail which the employee had proven that he

could do, not the ability to use both arms. Moreover,

the court found that the employer was requir ed to

adapt the work environment to determine whether the

employee with the disability could perfor m the essential

requirements of the job with reasonable adaptations.

Likewise, in a job requiring the use of a computer,

the essential function is the ability to access, input,

and retrieve information from the computer. It is not

essential that the person be able to use the keyboar d or

visually read the computer screen, if the provision of

adaptive equipment or software would enable the

person with the disability -- for example, impair ed

vision or limited hand control -- to contr ol the

computer and access the information. The r elevant

question would be whether the acquisition of the

equipment would be a reasonable accommodation,

given the factors to be considered in making that

determination.

136 Cong. Rec. 11,451 (1990).

Among the facts and circumstances relevant to each case

is, of course, the employee's actual experience as well as

that of other employees. See 29 C.F.R. S 1630.2(n)(3)(iv), (vi)

and (vii). It is undisputed that from the time Skerski began

as an installer technician in 1982 until the time he was

diagnosed with his panic disorder in 1993, a significant

portion of his job responsibilities requir ed climbing. There

is a basis to find that Skerski spent appr oximately 50% of

his time before his 1993 diagnosis perfor ming work that

required climbing. However, for the three and a half years

after his diagnosis in which he continued to work as an

installer technician, Skerski performed virtually no

overhead work at all. He only did so when he was "trying to

see if [he] could do it." App. at 375. As we noted above,

Time Warner conceded that Skerski continuously received

12

high ratings for his performance during this time. Skerski

testified at his deposition that there always was enough

underground work to do, that he always worked 40-hour

weeks and even worked enough to earn a couple thousand

dollars per year in overtime, and that he had never

experienced problems at work because of his panic disorder

until Hanning became his supervisor in the fall of 1996.

For further support, Skerski points to the experience of

one of his co-workers, Bill Bajnowski, who allegedly worked

almost exclusively on underground assignments. We are

unable to give that experience much weight because

Bajnowski, unlike Skerski, was never put on "modified"

duty, app. at 369, and Skerski admitted that no other

installer technicians had ever been restricted from overhead

work like he was.

Skerski argues that his own experience exemplifies that

no negative consequences resulted from his failure to

perform the climbing function of his job, which is another

of the illustrations listed in the regulations. See 29 C.F.R.

S 1630.2(n)(3)(iv). However, ther e is support in the record

for Time Warner's contention that Skerski's inability to

climb caused it considerable administrative difficulties.

Approximately 75%, or 170 miles, of Time Warner's cable

system in the relevant area consists of overhead aerial

cable, which requires installer technicians to climb to

service the cables. Hanning testified that Skerski's inability

to climb "made the routing process extr emely

cumbersome," app. at 121, because the assignment process

had to be done by hand instead of computer. He also

claimed that Skerski's inability to climb necessitated the

hiring of outside contract labor to meet demand, and that

Skerski was not always as busy as he should have been

due to his restricted work schedule. In an affidavit, Michael

Flynn, Time Warner's technical operations manager in

Skerski's area since January 1998, stated that the need to

climb on a particular assignment may not be deter mined

until the technician actually arrives at the location of the

service call and it is therefore often difficult to predict

whether overhead or underground work will be needed on

a given day.

13

But Time Warner's evidence does not stand undisputed.

Skerski testified that he always knew in advance whether

an assignment would require climbing, and that his former

supervisors Kane and Gruseck each had doled out

assignments by hand without difficulty. Mor eover, at oral

argument before us, Time War ner's counsel acknowledged

that he knows of no instance in which Skerski went out on

assignment, only to have to return because the assignment

required climbing. And Skerski claimed in his letter of

November 24, 1996 that his "fellow employees, both field

and office, have expressed their support in the companies

[sic] accommodation with my current position." App. at

158.

In support of its argument that climbing is an essential

function of Skerski's job, Time War ner relies on two district

court decisions from outside this circuit. Of course, neither

binds us but inasmuch as the facts presented ar e not

dissimilar to those presented here, we consider them. In

Lodderhose v. Viacom Cable, Inc., No. C96-4282 SI, 1998

WL 57025 (N.D. Cal. Jan. 27, 1998), a cable installer

technician suffering from multiple scler osis sought to

continue in his job even after his doctors opined that he

could not safely work at heights because of his decr eased

coordination and balance problems. Although the cable

company transferred him to another position in the

company as a field sales representative, albeit with smaller

income, and offered alternate accommodations, Lodderhose

sued, alleging discrimination under the ADA.

The court stated that Lodderhose did not r eally dispute

whether climbing was an essential function of his job. See

id. at *6. The unpublished opinion thus focused on whether

the employer could have reasonably accommodated the

plaintiff by reassigning him or r estructuring his job. In

contrast, Skerski has set forth evidence that places into

dispute whether climbing was an essential function of his

job. Specifically, Skerski argues that he did work for more

than three years in his capacity as installer technician

without climbing. Therefore, this case is distinguishable

from Lodderhose.

Time Warner responds that the fact that Skerski was

assigned underground work for thr ee years following his

14

1993 diagnosis is not relevant to this court's determination

of what functions are essential to the job of installer

technician. It notes that in Allen v. Geor gia Power Co., 980

F. Supp. 470 (N.D. Ga. 1997), the court held that certain

physical movements that an electrician could not per form

because of a back injury were "essential functions of the

position of electrician" even though the electrician had

continued in his job for 30 months after the injury in a

"light duty" capacity in which he perfor med none of those

movements. Id. at 476. But the plaintif f in Allen based his

argument that climbing was not an essential function of his

job on the ground that the essential functions of his job

changed when his employer switched from a supervisor-

directed job-assignment system to one in which each

employee was self-directed. The plaintif f readily admitted

that climbing had been an essential function of his job, but

argued that after the switch, "the only essential function of

the position of electrician was to keep himself busy." Id. In

contrast, in the case before us there was no change in the

manner in which job assignments were distributed; rather,

Skerski argues that climbing was never an essential

function of his job.

Skerski emphasizes that the Allen plaintif f could not

perform the majority of the assignments generally given to

electricians whereas he can perfor m the majority of the

functions of an installer technician. These ar e jury

arguments. Skerski's ability to perfor m as an installer

technician for more than three years without climbing

might lead a reasonable juror to infer that Skerski's

inability to climb had no adverse consequences for his

employer, a factor that is relevant to determining what is an

essential function. See 29 C.F.R.S 1630.2(n)(3)(iv). In light

of the conflicting deposition testimonies of fered by Skerski

and Hanning, it is unclear what effect Skerksi's inability to

climb had on the servicing of Time War ner's cable system

in the Coraopolis area.

We do not suggest that the District Court her e had no

basis for its conclusion that climbing is an essential

function of Skerski's position as installer technician or even

that, if we were the triers of fact, we would not so hold. But

upon reviewing the three factors listed in 29 C.F.R.

15

S 1630.2(n)(2) and the seven evidentiary examples provided

by 29 C.F.R. S 1630.2(n)(3), it is apparent that a genuine

issue of material fact exists as to whether climbing is an

essential function of the job of installer technician at Time

Warner. Although the employer's judgment and the written

job descriptions may warrant some deference, Skerski has

put forth considerable evidence that contradicts T ime

Warner's assertions, particularly the uncontradicted fact

that following his 1993 diagnosis he worked for mor e than

three years as an installer technician for T ime Warner

without ever having to perform over head work. Moreover,

certain evidence suggests that during these thr ee-plus

years Skerski received repeated commendations for his

work and never received any complaints fr om supervisors

or co-workers, that is until Hanning became his immediate

supervisor in the fall of 1996.

Skerski's situation is not dissimilar from that of Deane,

a nurse who was unable to do heavy lifting without

assistance. The hospital for which she worked contended

that lifting was an essential function of her position, and

that because she was unable to lift she was not a"qualified

individual" under the ADA. Deane conceded that lifting was

part of a nurse's duties but claimed that the heavy lifting

she was restricted from doing was not an essential function

of a nurse. In light of the evidence produced by both, this

court en banc found that there was a genuine issue of

material fact that must be decided by a jury. See Deane,

142 F.3d at 148. We therefor e conclude that the District

Court incorrectly decided that "reasonable jurors could only

find that climbing is an essential element of the installer

technician position." Skerski, slip op. at 7. Because a

genuine issue of material fact exists as to whether climbing

is an essential function, and therefore whether Skerksi is a

"qualified individual" under the ADA, this case must be

remanded for trial.

B.

"Reasonable Accommodation"

Skerski argues that even if climbing is an essential

function, there is a genuine issue of material fact whether

16

he can, with a "reasonable accommodation," perform the

job as an installer technician, and that summary judgment

was therefore improper.

As explained earlier, a disabled employee may establish a

prima facie case under the ADA if s/he shows that s/he

can perform the essential functions of the job with

reasonable accommodation and that the employer refused

to make such an accommodation. According to the ADA, a

"reasonable accommodation" includes:

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 relevant r egulations define

reasonable accommodations as "[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).

In Walton v. Mental Health Ass'n of Southeastern Pa., 168

F.3d 661 (3d Cir. 1999), this court established that, "[o]n

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." Id. at

670 (quotation omitted); see also Borkowski v. V alley

Central Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995).

Summary judgment may be granted for a defendant only

"in cases in which the plaintiff's pr oposal is either clearly

ineffective or outlandishly costly." Walton, 168 F.3d at 670

(quotation omitted) (emphasis added).

If the plaintiff satisfies his or her bur den, the defendant

then has the burden to demonstrate that the pr oposed

accommodation creates an "undue hardship" for it. See id.;

42 U.S.C. S 12112(b)(5)(A). The ADA defines"undue

hardship" as "an action requiring significant difficulty or

17

expense, when considered in light of [a series of factors]."

42 U.S.C. S 12111(10)(A). Among the factors to be

considered are "the effect on expenses and resources, or

the impact otherwise of such accommodation upon the

operation of the facility." 42 U.S.C. S 12111(10)(B).

The District Court found that Time War ner fulfilled its

responsibilities under the ADA by reassigning Skerski to a

warehouse position. The District Court noted that

regulations implementing the ADA list "r eassignment to a

vacant position" as a possible reasonable accommodation.

See Skerski, slip op. at 9 (quoting 29 C.F .R.

S 1630.2(o)(2)(ii)). The District Court found significant the

fact that Skerski had previously requested a transfer to the

warehouse. Skerski argues that his prior request for such

a transfer does not prove that it qualifies as a reasonable

accommodation. He testified in his deposition that he had

requested the warehouse transfer "only under duress"

because he was afraid he was going to lose his job. App. at

398. Skerski stated, "I'll take anything at that point, but I

wanted my tech job." App. at 398. Therefor e, no inference

that the transfer was reasonable can be drawn from

Skerski's request.

The District Court apparently was also awar e that a

transfer is not a reasonable accommodation if the employee

is not qualified for the new position, see Mengine v.

Runyon, 114 F.3d 415, 418 (3d Cir . 1997) (discussing the

Rehabilitation Act, the analysis of which is equivalent to

that of the ADA), as the court noted that Skerski had failed

to argue that he lacked the training, education, or skills

required for the warehouse position. However, there is

evidence in the record that suggests that Skerski was not

qualified for the warehouse position. In his deposition,

Skerski stated that he lacked the necessary computer and

inventory skills, and that the warehouse position was "a

more physically demanding job." App. at 398. Time Warner

has not contested these assertions. In light of all these

outstanding factual questions, there is a genuine issue of

material fact as to whether reassignment to the

considerably lower-paying warehouse position ($12.50 per

hour compared with the installer technician position paying

$19.45 per hour) was a reasonable accommodation that

satisfied the ADA.

18

Of even more significance is the fact that the EEOC's

commentary to the regulations makes clear that

661<!>reassignment "should be considered only when

accommodation within the individual's curr ent position

would pose an undue hardship." EEOC Interpr etive

Guidance, 29 C.F.R. pt. 1630, App. 1630.2(o) (emphasis

added). The commentary continues: "[a]n employer may

reassign an individual to a lower graded position if there

are no accommodations that would enable the employee to

remain in the current position and ther e are no vacant

equivalent positions for which the individual is qualified

with or without reasonable accommodation." Id. In the

instant case, it is not at all clear that a r easonable

accommodation within Skerski's installer technician

position was not possible.

Time Warner's defense in this case has been, in essence,

that it would have been "inconvenient" for it to make the

adjustments needed to retain Skerski in the position that

he previously had. However, the ADA was enacted to

compel employers to look deeper and more cr eatively into

the various possibilities suggested by an employee with a

disability. As is evident from the section on r easonable

accommodation in the House Report to the Act, to which

the Senate receded, it is only when the accommodation

suggested would constitute an undue hardship that the

employer can justify failure to accommodate in that

manner. See H.R. Rep. No. 101-485 (II), at 67-68 (1990),

reprinted in 1990 U.S.C.C.A.N. 303, 349-50.

Skerski contends that Time Warner should have

permitted him to use a bucket truck to work at heights as

an installer technician, which would have enabled him to

avoid climbing.4 Skerski testified in his deposition that, in

_________________________________________________________________

4. Skerski also argued in the District Court that Time Warner should

have permitted him to continue to work under the modified schedule in

which he only performed undergr ound work. The District Court

determined that this proposal would not be a reasonable

accommodation. Because Skerski has not challenged this finding on

appeal, we need not review the District Court's determination on this

matter. We note, however, that while the fact that Time Warner

previously permitted Skerski to work without performing overhead work

19

response to Hanning's demand in the fall of 1996 that he

resume the climbing functions of his installer technician

position, he offered to use a bucket truck instead, and that

this bucket truck would enable him to perfor m all of the

required overhead work. Although T ime Warner rejected

this proposition, Skerski further testified that it was his

understanding that Time Warner had a bucket truck

available for use at the time. Time War ner does not contest

Skerski's claim that he requested the use of a bucket truck

before being reassigned.

At oral argument, Time War ner's counsel asserted that

providing Skerski with a bucket truck would have been

"clearly ineffective" in light of a letter from Skerski's

treating physician, Dr. Steinber g, in which Dr. Steinberg

stated that Skerski's panic disorder "pr events him from

climbing ladders more than a single extension, working in

a bucket truck over that height, working on the r oof of his

home, . . . or approaching any height situation that

increases his premature ventricular contractions or fear of

having a panic attack. The fear emanates from a panic

attack resulting in loss of balance and falling to the

ground." App. at 150. Time War ner points out that in

Lodderhose the district court accepted the defendant's

similar argument that a proposed accommodation was

unreasonable because the proposal r equired the plaintiff to

undertake activity that his own doctors had deemed

"unsafe." 1998 WL 57025, at *7.

Notwithstanding the district court's analysis in

Lodderhose, we find present her e a genuine issue of

material fact as to whether providing Skerksi with a bucket

truck would have been a reasonable accommodation. There

does not appear to have been much, if any, attention

devoted to this issue in the proceedings befor e the District

_________________________________________________________________

for three years is relevant to whether his working at heights was

essential to his job, it is not relevant to whether his disability can be

accommodated. This is because employers are not required to

accommodate an employee by removing an essential function or

restructuring a job so as to avoid it, but, rather, they are to provide an

accommodation so as to enable the employee to per form such a function.

See EEOC Interpretive Guidance, 29 C.F .R. pt. 1630, App. 1630.2(o).

20

Court. The court did not refer to a bucket truck in its

opinion, and the only references in the r ecord to the

possibility of its use were Skerski's testimony in his

deposition that he proposed this alternative to Time Warner

and that Time Warner owned bucket trucks at the time,

and the reference in Dr. Steinber g's letter to Skerski's

inability to work in a variety of jobs at heights. T ime

Warner has not argued befor e us that bucket trucks were

unavailable for Skerski's use or that providing Skerski with

a bucket truck would have posed an undue har dship on it.

In fact, Time Warner conceded at oral argument that there

were three or four bucket trucks in its system, but of

course it is a factual issue whether one could have been

put at Skerski's disposal.

Time Warner's reliance on the letter from Dr. Steinberg

may ultimately carry the day. However, as Skerski's counsel

pointed out, Dr. Steinberg has never been questioned,

much less cross-examined, as to whether a bucket truck

was a viable alternative, or the circumstances under which

Skerski might have been able to use a bucket truck. The

weight to be given to Dr. Steinberg's letter is a question that

should ultimately be decided by a jury.

If the jury were to find that the bucket truck was a

reasonable accommodation, the reassignment to the

warehouse position did not satisfy the r equirements of the

ADA. See EEOC Interpretive Guidance, 29 C.F.R. pt. 1630,

App. 1630.2(o). We therefore find that there is a genuine

issue of material fact as to whether Time W arner provided

Skerski with a reasonable accommodation, ther eby making

summary judgment inappropriate.

III.

For the foregoing reasons, we will r everse the District

Court's order granting summary judgment to T ime Warner

on Skerski's claim under the ADA. We believe there are

genuine issues of material fact as to whether climbing is an

"essential function" of Skerski's job as an installer

technician, and, if it is, whether Time W arner provided

Skerski with a "reasonable accommodation" under the ADA.

21

Accordingly, we will remand for further pr oceedings

consistent with this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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