Conneen v. MBNA Amer Bank NA

Opinions of the United

2003 Decisions States Court of Appeals

for the Third Circuit

6-27-2003

Conneen v. MBNA Amer Bank NA

Precedential or Non-Precedential: Precedential

Docket No. 02-1504

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PRECEDENTIAL

Filed June 27, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-1504

MARGARET D. CONNEEN,

Appellant

v.

MBNA AMERICA BANK, N.A.

On Appeal from the United States District Court

for the District of Delaware

(Dist. Ct. No. 00-cv-00944)

District Judge: Hon. Gregory M. Sleet

Argued: November 7, 2002

Before: McKEE, GREENBERG, Circuit Judges and

LIFLAND,* District Judge

(Opinion Filed: June 27, 2003)

JEFFREY. K. MARTIN, ESQ. (Argued)

Jeffrey K. Martin, P.A.

1509 Gilpin Avenue

Wilmington, Delaware 19806

Attorney for Appellant

* Honorable John C. Lifland, Senior Judge of the United States District

Court for the District of New Jersey, sitting by designation.

2

BENJAMIN N. GUTMAN, ESQ.

(Argued)

Equal Employment Opportunity

Commission

1801 L. Street, N.W.,

Washington, DC 20507

Attorney for Amicus-Curiae-EEOC

SHELDON N. SANDLER, ESQ.

(Argued)

JOANNE C. SPRINGER-MESSICK

Young Conaway Stargatt &

Taylor, LLP

The Brandywine Building

1000 West Street, 17th Floor

P.O. Box 391

Wilmington, Delaware 19899-0391

Attorneys for Appellee

OPINION OF THE COURT

McKEE, Circuit Judge.

Margaret Conneen1 appeals the district court’s dismissal

of the suit she brought against MBNA America Bank, N.A.,

her former employer. She alleges that her termination from

MBNA was a violation of the Americans with Disabilities Act

of 1990, 42 U.S.C. § 12101 and 28 U.S.C. § 1343(a)(4) (the

“ADA”), and a breach of obligations imposed on MBNA by

the covenant of good faith and fair dealing implied under

Delaware law. The district court granted summary

judgment in favor of MBNA, and against Conneen, and this

appeal followed. The court concluded that Conneen was not

entitled to the protection of the ADA because she could not

demonstrate that she could perform the essential functions

of her job with or without an accommodation. Although we

disagree with that conclusion, we nevertheless affirm the

grant of summary judgment in favor of MBNA as there is no

genuine issue of material fact that would allow a reasonable

1. Margaret Conneen is now known as Margaret Dayton. To avoid

confusion, we will refer to her as “Conneen.”

3

juror to conclude that MBNA terminated Conneen because

of her disability or that MBNA failed to engage in the

interactive process as required under the ADA.

I. BACKGROUND

Conneen was employed by MBNA from July 21, 1986

through June 25, 1998. During that time she rose to the

position of Marketing Production Manager. She went on

short-term disability leave in September of 1996, after she

began suffering from clinical depression. Her treating

psychiatrist, Dr. Alan Seltzer, diagnosed her as suffering

from a “major depressive episode with severe psychotic

symptoms.” The medications he prescribed included

Effexor, an antidepressant.

In December of 1996, Dr. Seltzer noted that Conneen was

“in partial remission” and “no longer psychotic,” and he

removed her from all medications except Effexor. Shortly

thereafter, on February 18, 1997, Conneen met with an

MBNA Health Services nurse, who approved Conneen’s

return to work. The very next day, Conneen returned to

work on a part-time basis, working four hours per day. In

March of 1997, Conneen resumed her regular hours

working full-time from 8:00 a.m. to 5:00 p.m. with no

restriction or accommodation for her depression. However,

Conneen continued to take Effexor pursuant to Dr. Seltzer’s

recommendation, and that medication purportedly resulted

in “morning sedation,” which made it difficult for her to

function in the mornings.2

John Miller, Conneen’s manager at the time, expressed

concern about Conneen’s frequent tardiness, and suggested

to Conneen that she speak with a representative of MBNA’s

Health Services unit if her tardiness was related to illness.

2. Dr. Seltzer was actually quite equivocal about the relationship

between Conneen’s medication and difficulties she had arriving for work

on time. At his deposition he testified that “[i]t is possible but not likely,”

that the Effexor was the cause of Conneen’s tardiness in the morning.

App. at B116. However, inasmuch as we are reviewing a grant of

summary judgment we must view this evidence in the light most

favorable to Conneen. Matczak v. Frankford Candy and Chocolate

Company, 136 F.3d 933 (3rd Cir. 1997).

4

On June 5, 1997, Conneen met with an MBNA nurse. As a

result of that conversation, MBNA agreed to accommodate

Conneen by allowing her to begin work at 8:30 a.m. instead

of 8:00 a.m.

In a subsequent visit on June 16, 1997, Dr. Seltzer

concluded that Conneen’s depression was in partial

remission, and by October 28, 1997, Dr. Seltzer concluded

that Conneen was “doing well.” Nevertheless, sometime in

1997, Conneen was allowed to begin reporting to work at

9:00 a.m. and working until 6:00 p.m. rather than working

from 8.00 a.m. to 5:00 a.m. However, in spite of this

further accommodation, Conneen’s punctuality was

“substandard,” sometimes arriving as late as 9:30 a.m. On

November 4, 1997, MBNA gave Conneen a “final warning”

because she had reported to work intoxicated two days

earlier. In that warning, MBNA warned Conneen that she

would be terminated for any further misconduct.

Conneen next visited Dr. Seltzer on January 20, 1998,

and the doctor noted that she had been “doing well for six

months.” Nevertheless, the doctor decided against altering

Conneen’s dose of Effexor because she was then struggling

through divorce proceedings and the doctor was concerned

about the impact of those proceedings on Conneen’s

depression.

On January 30, 1998, Conneen met with her new

manager at MBNA, Rose Behm, to discuss her schedule.

Behm did not know that Conneen had an adjusted

schedule nor was she aware of Conneen’s history of

depression or morning sedation resulting from her

medication. Conneen told Behm that her schedule had

been adjusted to allow her to start work an hour later, but

she did suggest that the adjustment was related to an

accommodation for a medical condition. Behm asked

Conneen if anything prevented her from returning to a

normal 8:00 a.m. to 5:00 p.m. schedule. Despite the

problems Conneen was continuing to have with

punctuality, she assured Behm that there was no reason

she could not resume reporting to work at 8:00 a.m. and

working until 5:00 p.m. Conneen did not request

continuation of the accommodation of a later starting time,

5

nor did she give Behm any reason to believe that an

accommodation may be necessary.

Accordingly, Conneen began reporting to work at 8:00

a.m. on February 9, 1998. However, Conneen’s tardiness

soon resurfaced and she was late for work on February 18,

19, 20, and 24, 1998. On February 24, 1998, Conneen’s

acting supervisor, Anne Casey,3 and Fran Hahn, Casey’s

supervisor, met with Conneen to discuss the recurring

tardiness. During this conversation, Conneen was asked

once again if there was any reason why she (Conneen) was

unable to report to work on time, and she once again said

there was no reason she could not do so. Conneen was

then warned that “continued excessive, unexcused

tardiness would not be tolerated,” Appellee’s Br. at 6, and

Conneen agreed to be on time in the future.

Despite that promise of punctuality, less than a week

went by before Conneen was again late for work. She

reported late on February 26 and 27 as well as March 2, 3,

4, and 5, 1998. On March 6, 1998, Conneen again met with

Hahn, Casey, and Catherine Willey, a representative from

MBNA’s Personnel Department. At that meeting, Conneen

was told that her continued tardiness could result in

dismissal. Conneen then informed them for the first time

that she had a medical condition that caused her to be late,

and that she could provide documentation from her

physician to justify her need for an accommodation.

Conneen’s managers requested the offered documentation

and Conneen asked Dr. Seltzer to supply it.

In response to Conneen’s request, Dr. Seltzer drafted a

letter to MBNA in which he stated: “because of Ms.

Conneen’s condition, she will be generally unable to begin

work before 9:00 a.m.” App. at B3, B122. Based upon that

documentation, MBNA allowed Conneen to work from 9:00

a.m. to 6:00 p.m. each day.

However, inasmuch as there was some question as to

how long Conneen would need that accommodation, Nurse

Patricia Peterson obtained Conneen’s permission to contact

3. Ms. Behm, Conneen’s actual supervisor, was on maternity leave

during this time.

6

Dr. Seltzer on behalf of MBNA to determine when Conneen

could resume a regular schedule.4 Nurse Peterson

subsequently testified that, based upon the ensuing

conversation with Dr. Seltzer on April 7, she concluded that

Conneen’s morning sedation was a temporary reaction to

medication, that the dosage would be corrected, and that

Conneen would be able to resume her regular schedule in

a couple of weeks.5

Dr. Seltzer also filled out an MBNA disability form in

response to Nurse Peterson’s request for documentation to

support affording Conneen a later starting time. On the

form, Dr. Seltzer described Conneen as suffering from

“dysphoria.” Dr. Seltzer did not, however, suggest that an

adjusted schedule was necessary, nor did he affirm that

Conneen’s condition or medication interfered with her

getting to work on time.

As a result of Nurse Peterson’s conversation with Dr.

Seltzer, Casey advised Conneen that she could continue to

report to work at 9:00 a.m. through April 22, 1998, but

that she must thereafter resume reporting at 8:00 a.m.

Conneen testified at her deposition that she relied on Nurse

Peterson’s description of the contents of her conversation

with Dr. Seltzer. However, Conneen also testified that she

did tell Nurse Peterson that she was not comfortable with

the change, and that she disagreed with the decision to

remove the accommodation of an hour extra to report for

4. Dr. Seltzer testified at his deposition that he intended to allow

Conneen to arrive at 9:00 temporarily, not permanently.

5. The precise content of Nurse Peterson’s April 7 discussion with Dr.

Seltzer is disputed. In his deposition, Dr. Seltzer denied that he told

Nurse Peterson or anyone else at MBNA that Conneen would be able to

return to work at 8:00. Dr. Seltzer testified that he was certain of this

because he never allows a patient to have her schedule modified without

first seeing and speaking with the patient. However, Dr. Seltzer also

testified that Nurse Peterson’s notes of their conversation corroborated

her recollection of the conversation and that Conneen returning to the

earlier schedule in two weeks “made sense medically,” because two

weeks is a reasonable time to adjust to a change in medication.

Moreover, Dr. Seltzer stated in his affidavit, “if the nurse said that she

spoke with me on that date, . . . I had no reason to doubt it.” App. at

A36, B126-7.

7

work in the morning. Conneen nevertheless asserts that

she felt that she had no alternative but to begin working at

8:00 as Peterson requested. Nevertheless, despite being

allowed to report at 9:00 a.m. for a few more weeks,

Conneen showed up for work after 9:00 a.m. on April 17.6

On April 24, Casey and Willey met with Conneen yet

again to remind her that she was to begin work at 8:00

starting on April 27, and Conneen agreed to resume

starting at 8:00 a.m. She did not request continuation of

the accommodation of the later start time of 9:00 a.m.

Conneen explains her failure to ask for continuation of the

accommodation at this meeting by arguing that she did not

feel comfortable discussing her medical situation with her

manager or anyone from the personnel department at

MBNA. Appellant’s Br. at 9. However, it is uncontested that

she also failed to thereafter ask Dr. Seltzer to contact

MBNA on her behalf or to suggest that Nurse Peterson have

another conversation with Dr. Seltzer to confirm that she

was ready to resume reporting to work at 8:00 a.m. Rather

than attempting to have MBNA continue an adjusted work

schedule or contact Dr. Seltzer before making a final

decision in that regard, Conneen agreed to the resumption

of her 8:00 a.m. to 5:00 p.m. schedule and assured Casey

and Willey that she would be punctual.

However, Conneen’s history was a more accurate

predictor of her future performance than those assurances

were. Despite the assurances of punctuality, Conneen

arrived late on April 27, 28, and 29 as well as May 1, 1998.

On May 1, Willey urged Conneen to speak with Nurse

Peterson. Conneen did meet with Nurse Peterson and the

two discussed Conneen’s adjustment to her medication as

well as concerns about Conneen’s punctuality. During that

meeting Conneen again failed to even suggest that her

tardiness might be related to her medication or history of

depression. Moreover, despite that meeting, Conneen’s

pattern of late arrivals continued and she was late for work

again on May 6, 8, and 11, 1998.

6. Conneen does not suggest that she needed more than an extra hour

to report for work in the morning.

8

On May 15, Conneen and Willey met and Willey offered

Conneen a brief leave of absence with pay so that Conneen

could consider whether she wanted to continue working as

an officer at MBNA. Willey also offered Conneen the

opportunity to transfer to a non-officer, non-manager

position, which would have allowed her to work a different

schedule. Finally, Willey told Conneen that in lieu of

termination, she would accept her resignation if Conneen

wished to pursue that path. On May 18, 1998, Conneen

rejected each of those alternatives and told Willey that she

would be on time each day.

Following that meeting, Conneen did begin to report for

work on time, but her punctuality was again short lived.

After reporting punctually at 8:00 a.m. for almost a full

month, she lapsed back into tardiness and was late on

June 16, 17, 18, and 22. Willey met with her once again on

June 23 to discuss the situation. Amazingly, given her

current claims under the ADA, Conneen still refrained from

suggesting a link between her medication and her tardiness

at the June 23 meeting despite warnings of termination and

offers to accept her resignation. Conneen still requested no

further accommodation. Rather than suggest a medicinal

reason for her behavior or attempt to involve her treating

physician, she attempted to explain her most recent

tardiness by claiming: she had been “stuck in traffic,” her

dog “made a mess,” and that she needed to give her mother

a ride one day.7

On June 25, 1998, MBNA finally terminated Conneen for

her excessive tardiness. Immediately following her

termination, Conneen contacted Dr. Seltzer, who informed

her that he had never told Nurse Peterson that Conneen

was ready to begin working at 8:00 a.m. Shortly after that

contact with Conneen, Dr. Seltzer wrote a letter to MBNA in

which he stated that Conneen needed to be allowed to

arrive late for work because of her condition and asking

MBNA to reinstate her.8

7. She later admitted that each of the excuses was a lie.

8. On January 14, 2000, MBNA in-house counsel, Omar McNeill, and

Nurse Peterson contacted Dr. Seltzer to discuss his April 1998

conversation with Nurse Peterson. During that conversation, Peterson

9

II. PROCEDURAL HISTORY

Conneen subsequently filed this civil action against

MBNA in the United States District Court for the District of

Delaware. In the first count of her complaint she alleges

that MBNA violated the ADA by “withdrawing from the

previously granted accommodation which permitted her to

report to work one hour later than other managers.”

Conneen v. MBNA Am. Bank, 182 F. Supp. 2d 370, 373 (D.

Del. 2002). In the second count she alleges that MBNA

breached its duty of good faith and fair dealing under

Delaware law.

The district court granted MBNA’s motion for summary

judgment and dismissed both claims. The court held that

MBNA did not “fail to accommodate Conneen because it did

not have notice of her disability at the relevant time.” Id. at

377. The court also held that reporting to work at 8:00 a.m.

was an essential function of Conneen’s job. Accordingly, the

court concluded that Conneen could not establish a prima

facie case of disability discrimination since she “could not

perform the essential functions of her job with

accommodation,” id., and she was therefore not protected

under the ADA. The court also rejected Conneen’s assertion

that MBNA had acted in bad faith. This appeal followed.

In addition to appealing the aforementioned rulings,

Conneen argues that the district court’s finding that Dr.

Seltzer authorized resumption of the 8:00 a.m. schedule

was error because the Unemployment Insurance Appeal

Board had reached a contrary conclusion and the court

was therefore collaterally estopped from reaching a different

factual conclusion.

and McNeill formed the impression that Dr. Seltzer had indeed approved

Conneen’s return to her 8:00 starting time. McNeill sent Dr. Seltzer a

letter confirming that understanding and Dr. Seltzer verified the

accuracy of it with a handwritten note.

Conneen later produced an affidavit in which Dr. Seltzer alleged that

he found several inaccuracies in McNeill’s letter after he signed and

verified it. In the affidavit, Dr. Seltzer reiterated that he never told MBNA

that Conneen was ready to begin working at 8:00 a.m.

10

III. DISCUSSION9

A. The ADA Claims

Conneen first claims that MBNA’s withdrawal of the

accommodation of allowing her to start work an hour later

was unreasonable. She argues that the continuing effects of

her medication made it exceedingly difficult to consistently

report for work at 8:00 a.m. and insists that she could have

performed the essential functions of her job had MBNA

continued allowing her to report for work at 9:00 a.m.

An employer commits unlawful disability discrimination

under the ADA if he/she “does not mak[e] reasonable

accommodations to the known physical or mental

limitations of an [employee who is an] otherwise qualified

individual with a disability. . . .” 42 U.S.C. § 12112(b)(5)(A);

Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 311 (3d Cir.

1999). Here, MBNA does not contest that Conneen suffered

from a disability, nor that it was aware of the disability.

Indeed, MBNA accommodated that disability for some time.

“Rather, the dispute centers around whether Conneen

voiced her desire for further accommodation to MBNA after

the initial accommodation.” Conneen, 182 F. Supp. 2d at

377. Put another way, the issue before us is whether the

breakdown in the interactive process required under the

ADA is attributable to MBNA or Conneen. Before resolving

that question, however, we must first determine if reporting

to work at 8:00 a.m. was an essential function of Conneen’s

job. As noted, the ADA prohibits discrimination against one

who is a “qualified individual with a disability.” 42 U.S.C.

§ 12112(a). A qualified individual with a disability is defined

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

9. Our review of the district court’s decision to grant summary judgment

is plenary. Summary judgment should be affirmed if there is “no genuine

issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247-48 (1986). We must examine the evidence in the light most favorable

to the nonmoving party, Conneen, and resolve all reasonable inferences

in her favor. Stewart v. Rutgers, 120 F.3d 426, 431 (3d Cir. 1997). In

employment discrimination cases, the summary judgment standard is

“applied with added rigor” because “intent and credibility are crucial

issues.” Id. (quoting Robinson v. PPG Indus. Inc., 23 F.3d 1159, 1162

(7th Cir. 1994)).

11

reasonable accommodation, can perform the essential

functions of the employment position that such individual

holds or desires.” 42 U.S.C. § 12111(8). MBNA argues that

Conneen cannot recover under the ADA because starting

work at 8:00 a.m. was an essential function of her job. The

district court agreed and concluded that MBNA is therefore

entitled to judgment as a matter of law.

1. Was The Earlier Starting Time An Essential

Function of Conneen’s Job?

In order to establish that a plaintiff is “qualified” under

the ADA, the employee must show that he/she “satisfies

the requisite skill, experience, education and other job-

related requirements of the employment position that such

individual holds or desires.” Skerski v. Time Warner Cable

Co., 257 F.3d 273, 278 (3rd Cir. 2001). If the plaintiff is

able to make that showing, he/she must then establish

that “with or without reasonable accommodation, [he/she]

can perform the essential functions of the position held or

sought.” Id. MBNA does not contest that Conneen

possesses the requisite “skill, experience, education,” her

job requires or that she has the ability to satisfactorily

perform her duties. Rather, as noted above, MBNA insists

that reporting for work is an essential component of

Conneen’s job, and her inability to do that on a consistent

basis renders her unqualified for the managerial position

she claims she is entitled to. However, we disagree with

that position and conclude that the district court erred in

accepting it.

“Essential functions” must be “fundamental” to one’s job

and not simply “marginal.” Skerski, 257 F.3d at 279

(quoting 29 C.F.R. § 1630.2(n)(1)). The inquiry into whether

a job requirement is essential to one’s job “is a factual

determination that must be made on a case by case basis

[based upon] all relevant evidence.” Deane v. Pocono Med.

Ctr., 142 F.3d 138, 148 (3rd Cir. 1998) (en banc)) (quoting

29 C.F.R. pt. 1630, app. § 1630.2(n)). Relevant evidence

may include, but is certainly not limited to, “ ‘the

employer’s judgment as to which functions are essential’

and ‘written job descriptions prepared before advertising or

interviewing applicants for the job.’ ” Id. However, the

12

employee’s actual experience is also relevant to the inquiry.

Skerski, 257 F.3d at 281.

The plaintiff in Deane was a nurse who was unable to lift

heavy weights because of a work related injury. The

employer/hospital claimed that lifting heavy objects was an

essential function of Deane’s job as evidenced by the job

description. That job description included “frequent lifting

of patients” as one of the “major tasks, duties and

responsibilities” of a nurse in Deane’s position. Deane, 142

F.3d at 148. Deane admitted that lifting heavy objects,

including patients, was a “critical job demand[ ],” and the

hospital insisted that a “nurse’s inability to lift patients”

could create a dangerous situation for Deane’s patients. Id.

Deane countered the hospital’s claim of job necessity

with a vocational expert who asserted that heavy lifting was

not one of the “four critical tasks” for nurses under the

Department of Labor’s Dictionary of Occupational Titles Job

Descriptions. 142 F.3d at 147. The expert drew a

distinction between nurses who did not need to lift

patients, and orderlies who did. The latter are classified as

“heavy-duty labor.” Id. The expert criticized the hospital’s

job description to the contrary for incorrectly characterizing

the lifting requirements for nurses. Deane’s expert insisted

that nurses are required to lift much less frequently than

the hospital’s job description suggested. Id. Despite the

intuitive appeal of the hospital’s argument, we concluded

that the factual question remained for the jury. Id. at 148.

The employer in Skerski also made an argument that had

superficial appeal. There, plaintiff was employed by Time

Warner to service cables, wires, and aerial cable plants

Time Warner maintained as part of its cable television

service. This required both climbing poles and working at

heights. After approximately ten years on the job, Skerski

was diagnosed with panic and anxiety disorder, and his

doctor recommended that he stop climbing and working at

heights. 257 F.3d at 276. Thereafter, Skerski asked his

supervisor to provide him with a bucket truck so that he

could continue working at heights, but the supervisor

claimed that the company did not have any. Id.10 The

10. There was some discrepancy about whether the company had a

bucket truck or not. Skerski claimed the company had an old one that

13

employer did offer to retrain Skerski to allow him to “re-

acquire the climbing skills necessary to continue his job as

a technician,” but the training program abruptly stopped

without explanation after Skerski’s doctor confirmed that

Skerski’s incapacitating anxiety prevented him from

working at heights. Id. at 277. Skerski eventually accepted

another position with the company at a significantly lower

salary while expressing a desire to continue doing

underground repair work as he had since the onset of his

anxiety disorder. Id. Skerski subsequently injured his back

and began receiving workers’ compensation benefits, and

thereafter filed suit under the ADA to recover money

damages and reinstatement to his “ ‘modified duty status’

as an installer technician.” Id.

The district court granted Time Warner’s motion for

summary judgment even though it found a genuine issue of

material fact as to whether Skerski was disabled and

whether the alternative position he was offered constituted

a reasonable accommodation under the ADA. Id. The court

reasoned that “climbing was an essential function of the

installer technician’s job that Skerski could not perform

. . . .” Id. Accordingly, the court held that Time Warner was

entitled to judgment as a matter of law because Skerski

was not “an otherwise qualified individual” under the ADA

and therefore could not establish a prima facie case for

disability discrimination. Id. We reversed.

After discussing the definition of “essential functions” set

forth in 29 C.F.R. § 1630.2(N)(1), we stated:

[t]he 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

could have been made available to him, but his supervisor denied that.

The supervisor also insisted that Skerski had to be “100%” to continue

working at heights. 257 F.3d at 277.

14

the function is highly specialized so that the incumbent

in the position is hired for his or her expertise.

257 F.3d at 279 (internal quotation marks omitted). We

also noted the non-exhaustive list of examples of probative

evidence set forth in the regulations. Id. That evidence

includes:

(I) The employer’s judgment as to which functions are

essential;

(ii) Written job descriptions prepared before advertising

or interviewing applicants for the job;

(iii) The amount of time spent on the job performing 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.

Id. (citing 29 C.F.R. § 1630.2(n)(3)).

After analyzing the evidence submitted by Skerski and

Time Warner in context with the aforementioned

regulations, we concluded that a genuine issue of material

fact remained as to whether climbing was an essential job

function for a cable installer. In doing so, we did not ignore

Time Warner’s claim that it was an essential function, nor

the fact that the written job description identified climbing

as a job requirement. However, neither did we ignore

Skerski’s testimony that his own experience suggested that

he had been able to satisfactorily perform as a cable

installer even though he had not been able to climb for

three years. We reasoned: “consideration of the seven

evidentiary examples included in § 1630.2(n)(3) suggests

caution against any premature determination on essential

functions as at least some of them lean in Skerski’s favor.”

257 F.3d at 280. Here, of course, MBNA’s assertion that an

8:00 a.m. start time is an essential function of the job is

15

substantially weaker than Time Warner’s position in

Skerski, or the hospital’s position in Deane.

Here, MBNA rests its claim of the importance of

punctuality largely upon the need for its officers to set an

example by coming to work “on time.” It can hardly be

seriously doubted that an employer has a right to expect its

managerial employees to set an example for other

employees. MBNA thus argues that “the responsibility of

showing an example is an essential function.” Appellee’s Br.

at 34. However, that argument can attach with equal force

to any one of numerous aspects of a bank officer’s job that

an employer might justifiably want employees to emulate. It

could include a requirement that male managers wear

business suits and ties. Though such examples may be

justifiable from the employer’s point of view, even important

to the professional atmosphere and decorum that is largely

defined by the conduct of managers, that hardly elevates

such preferences to fundamental functions. Absent more

than appears on this record, we are not prepared to

conclude that beginning work at 8:00 a.m. as opposed to

9:00 a.m. is an essential job function. That is especially

true here as MBNA does not suggest that Conneen did not

perform her job satisfactorily once she did arrive, or that

MBNA’s business was injured by the extra hour it gave her

to report for work during the period of the accommodation.

MBNA cites Earl v. Mervyns Inc., 207 F.3d 1361 (11th

Cir. 2000) to support its assertion that setting an example

can be an essential job function. However, there the

employee was charged with opening a department in a

small retail store. Earl, 207 F.3d at 1366. Obviously,

customers will go elsewhere and sales will be lost if a retail

establishment (especially one as small as the defendant in

Earl) cannot open according to its posted hours.

Accordingly, an employer in those circumstances may be

able to establish that punctuality is essential to the

employee’s job.

However, Conneen’s situation is in no way analogous to

that. Nor are we persuaded that allowing flexibility in an

officer’s starting times “ignores the wishes of the employer

and sends a message to all employees that starting work at

16

the prescribed time does not matter, as long as you get

your work done,” as MBNA argues. Appellee’s Br. at 34.11

MBNA has every right to require its employees to start

work “at the prescribed time.” Id. That is not the issue here.

Rather, the issue is whether MBNA can define an essential

job function for an employee in a managerial position in an

office setting with nothing more to substantiate the

importance of that requirement than a desire that a

manager set a good example. We can find nothing on this

record beyond MBNA’s own ipse dixit to suggest that

Conneen’s delayed starting time injured MBNA or interfered

with Conneen doing her job.

MBNA’s argument that it “explained to Conneen that

because she was employed as an officer she was required to

start work at 8:00 a.m,” is relevant to our inquiry, but not

determinative. Appellee’s Br. at 35. “Describing

[punctuality] as a requirement is not necessarily the same

as denominating [punctuality] is an essential function.”

Skerski, 257 F.3d at 280.12

Although there clearly may be some situations where an

employee’s starting time cannot be altered because it is an

essential function of the job, nothing on this record leads

us to conclude that to be the case here. Accordingly, we

hold that the district court erred in concluding that

Conneen was not a “qualified individual” under the ADA

because she could not perform an essential job function.

11. MBNA’s insistence that managers arrive on time to set an example

also ignores the rather obvious fact that Conneen would demonstrate

punctuality as long as she consistently arrived at work promptly before

her designated starting time even if the starting time was 9:00.

12. Ironically, Conneen concedes that punctuality and attendance are

essential functions of any position of employment. She states that she

“believe[s] that attendance and punctuality are essential functions of any

position.” See Appellant’s Br. at 29. However, she claims that the issues

here “do not involve attendance and punctuality.” Id. In spite of this

concession, Conneen goes on to argue that “changing of the work time

by one hour was not an essential function for the position.” Id. at 32. We

interpret this to mean that she does not concede that it was essential for

her to report at 8:00 as opposed to 9:00 a.m. insofar as an analysis of

“essential job functions” under the ADA is concerned.

17

She presented sufficient evidence to establish that she was

a qualified individual under the ADA despite her tardiness.

Nevertheless, we hold that the district court correctly

entered summary judgment in favor of MBNA and against

Conneen because Conneen is responsible for the

breakdown of the interactive process required under the

ADA.

2. The Interactive Process

“The ADA itself does not refer to [an] ‘interactive

process.’ ” Shapiro v. Township of Lakewood, 292 F.3d 356,

359 (3d Cir. 2002). Rather, the text of the ADA requires

only that an employer make a reasonable accommodation

to the known physical or mental disability of a qualified

person with a disability unless the employer can show that

the accommodation would impose an undue hardship on

the employer. 42 U.S.C. § 12112(b)(5)(A). However,

applicable regulations provide that in order “[t]o determine

the appropriate reasonable accommodation it may be

necessary 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. § 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.

1630.9 at 359.

In Mengine v. Runyon, we held that “both parties have a

duty to assist in the search for an appropriate reasonable

accommodation and to act in good faith.” 114 F.3d 415, 420.13

13. Mengine involved the interactive process implicated under the

Rehabilitation Act, but the discussion applies with equal force to

accommodations under the ADA. See, Taylor v. Phoenixville School

District, 184 F.3d at 312, n.5.

18

In Taylor v. Phoenixville Sch. Dist., we concluded that the

interactive process must include sufficient notice to inform

the employer that an employee is requesting an

accommodation followed by good faith participation of the

employer and employee in that interactive process. 184

F.3d 296, 319-20 (3d Cir. 1999). “[T]he purpose of the

interactive process is to determine the appropriate

accommodations: ‘[t]his process should identify the precise

limitations resulting from the disability and the potential

reasonable accommodations that could overcome those

limitations.’ ” Id. at 316. “When the interactive process

works well, it furthers the purposes of the . . . ADA.”

Mengine, 114 F.3d at 420. It may, in fact, not only lead to

identifying a specific accommodation that will allow a

disabled employee to continue to function as a dignified

and valued employee, it may also help sensitize the

employer to the needs and worth of the disabled person. It

therefore furthers the interest of the employer, and the

dignity and humanity of the disabled employee.

Here, MBNA and Conneen did engage in the interactive

process as required under the ADA. However, not

surprisingly, each side blames the other for the breakdown

in that process. Conneen argues:

Query: Which party was responsible for the breakdown

in the interactive process? The facts are abundantly

clear that the reasonable accommodation requested by

Ms. Conneen had been granted and it was only

through the unilateral actions of the employer that the

accommodation was withdrawn from plaintiff. We

submit that there is no other way to interpret these

facts. The accommodation was there, it was agreed

upon and there was medical support for same.

Appellant’s Br. at 22.

MBNA argues:

While the employer’s duty to accommodate is a

continuing one that is not exhausted by a single effort

alone, the employee still needs to keep her employer

current on her situation. Failure to accommodate

claims are extinguished when, as here, the employee

19

fails to renew a request for an accommodation after

problems resurface.

Appellee’s Br. at 26. In Taylor, we stated that an employee

who tries to hold his/her employer responsible for a

breakdown in the interactive process under the ADA must

show:

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.

Taylor, 184 F.3d at 319-20. Here, MBNA concedes that it

knew of Conneen’s disability, and that Conneen initially

requested an accommodation. However, MBNA claims that

it had no reason to believe that the accommodation it

initially provided was still necessary and that Conneen has

no one other than herself to blame for that. MBNA argues:

Here, all evidence available to MBNA in June 1998

indicated that the alleged disability had ended. MBNA

had returned Conneen to the normal 8 a.m. starting

time and, after some false starts, she was warned, and

proceeded to arrive on time for a month. When she was

again tardy repeatedly and was asked for an

explanation, she said nothing about a medical

condition, even when asked if this was the problem.

Under these circumstances, MBNA acted reasonably in

concluding that no disability issue existed at the time.

Appellee’s Br. at 25-26 (citations omitted). We agree.

Although an employer is liable for discriminating against

an employee in need of accommodation based upon the

employee’s known disability, neither the law nor common

sense can demand clairvoyance of an employer in MBNA’s

position. See 42 U.S.C. § 12112(b)(5)(A) (requiring only

reasonable accommodations to known disability); Beck v.

Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1134 (7th Cir.

1996) (noting initial duty of employee to inform employer of

disability is dictated by “common sense lest a disabled

20

employee keep his disability a secret and sue later for

failure to accommodate.”) Although MBNA clearly knew of

Conneen’s allegedly disabling morning sedation, it had

every reason to believe that the condition no longer existed

at the time of the June 1998 meeting, and Conneen did

nothing to inform MBNA that it did. In fact, through words

and deeds she confirmed and corroborated MBNA’s

conclusion that it did not.

We realize, of course, that there is a dispute of fact about

the exact contents of the April 7 conversation Dr. Seltzer

had with Nurse Peterson regarding the duration of

Conneen’s disability. However, given what is not disputed,

that discrepancy does not rise to the level of a material fact.

Dr. Seltzer’s March 13, 1998 note to MBNA simply states

that Conneen should be allowed to report at a later time

without stating any medical basis for the request. All

parties to this controversy, including Dr. Seltzer, viewed the

accommodation of a later starting time as temporary.

Moreover, even Dr. Seltzer agrees that Nurse Peterson’s

conclusion that the accommodation would only be

necessary for two more weeks following her April 7

discussion with him was medically reasonable. More

importantly, however, when Conneen was asked numerous

times to explain her tardiness after the initial

accommodation was terminated, she never once suggested

a medical problem or medication interfered with arriving at

8:00 a.m. Rather, she assured MBNA that she could report

at 8:00 a.m. and then blamed her failure to do so on traffic,

giving her mother a ride, and her dog’s gastric and/or

urinary distress. Moreover, Conneen was given numerous

chances after initially being warned on March 6, 1998, that

any further tardiness would result in dismissal. Each

warning was accompanied with an opportunity to offer an

explanation that should have opened the door for Conneen

to communicate about her morning sedation or involve Dr.

Seltzer in the discussions.

We realize, of course, that someone with a disability may

be reluctant to discuss it with anyone, particularly his/her

employer. This is especially true where, as here, the

underlying problem implicates one’s mental or emotional

stability. See Taylor, 184 F.3d at 315 (noting that

21

“[d]isabled employees, especially those with psychiatric

disabilities, may have good reasons for not wanting to

reveal unnecessarily every detail of their medical records

. . . the information may be irrelevant . . . and . . . could

be embarrassing, and might actually exacerbate workplace

prejudice.”). However, that does not alter our analysis

under these circumstances.

Although we can envision situations where an employee

would be reluctant to admit to having a disability even if

the employer already knows, Conneen had already given

MBNA permission to speak with her psychiatrist, and she

was aware that the appropriate personnel from MBNA had

spoken to him. Moreover, nothing here suggests that the

work environment was anything other than supportive of

Conneen, and conducive to candid and sensitive discussion

about the underlying cause of her tardiness. MBNA invited

that communication numerous times, and we are less than

persuaded by Conneen’s attempt to charge MBNA for the

fact that she declined the invitations and openings it

afforded her.

The law does not require any formal mechanism or

“magic words,” to notify an employer such as MBNA that an

employee needs an accommodation. Taylor, 184 F.3d at

313. Moreover, as the court noted in Bultemeyer v. Fort

Wayne Cmty. Sch., 100 F.3d 1281, 1285 (7th Cir. 1996),

circumstances will sometimes require “[t]he employer . . . to

meet the employee half-way, and if it appears that the

employee may need an accommodation but doesn’t know

how to ask for it, the employer should do what it can to

help.” However, either by direct communication or other

appropriate means, the employee “must make clear that the

[he/she] wants assistance for his or her disability.” Jones v.

United Parcel Serv., 214 F.3d 402, 408 (3d Cir. 2000). The

employer must have enough information to know of “both

the disability and desire for an accommodation,” Taylor,

184 F.3d at 313, or circumstances must at least be

sufficient to cause a reasonable employer to make

appropriate inquiries about the possible need for an

accommodation.

The quantum of information that will be required will,

therefore, often depend on what the employer already

22

knows. Taylor, 184 F.3d at 313. However, nothing that

MBNA knew here suggested that Conneen was still

suffering from the effects of her medication. She told MBNA

that she was not, and MBNA is not to be faulted for taking

her at her word under these circumstances.14

Despite MBNA’s prior knowledge of Conneen’s morning

sedation, the interactive process requires an employee in

her position to do something more than proffer excuses of

heavy traffic, giving a parent a ride, or cleaning up after a

pet when asked to explain tardiness. This is especially true

given the repeated warnings MBNA had given Conneen.15

After being given repeated chances and offering repeated

assurances of punctuality, Conneen was on time for nearly

a month before she was finally terminated. MBNA cannot

be held liable for failing to read Conneen’s tea leaves.

Conneen had an obligation to truthfully communicate any

need for an accommodation, or to have her doctor do so on

her behalf if she was too embarrassed to respond to

MBNA’s many inquiries into any reason she may have had

for continuing to be late.

As we have noted here and elsewhere many times,

both the employer and the employee have a duty to act in

good faith once the interactive process begins. Taylor, 184

F.3d at 312 (quoting Mengine, 114 F.3d 415, 419-20 (3d

Cir. 1997)). “All the interactive process requires is that

employers make a good-faith effort to seek

accommodations.” Id. at 317.

14. Cf. Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 163-64 (5th

Cir. 1996) (where employee only asked employer to reduce workload,

employee failed to provide evidence that employer knew of limitations

arising out of disability); Taylor v. Phoenixville Sch. Dist., 184 F.3d at

313-14 (employee’s psychotic episode at work coupled with employer’s

plan to discuss situation with employee’s doctor was sufficient to trigger

employer’s obligation to engage in interactive process).

15. It must be remembered that the pattern of tardiness here included

Conneen’s reporting for work late and inebriated on one occasion.

Nothing suggests that her apparent inebriation was in any way related

to her medication or that MBNA had reason to suspect a medical cause

for that behavior.

23

The district court’s analysis of MBNA’s good faith is very

instructive and merits quoting at length. The court stated:

Although the court can understand her reluctance to

share every detail of her illness, three factors weigh

heavily against Conneen.

First, [she] had previously requested—and was granted

—accommodation on at least three occasions.

Therefore, she knew what needed to be done in order

receive accommodation. For example, in March 1998,

when Conneen was told to provide medical

documentation of her condition in order to be granted

accommodation, she immediately contacted Dr. Seltzer

and obtained a medical excuse. However, once MBNA

threatened to withdraw the accommodation, Conneen

remained silent. Conneen never contacted Dr. Seltzer,

and never notified the MBNA health staff of her

condition. Although Conneen argues that she relied on

Nurse Peterson’s statements regarding Dr. Seltzer’s

opinion, the record fails to reveal any explanation as to

why—if Conneen disagreed with these purported

statements—she did not immediately contact Dr.

Seltzer for clarification. . . . [Conneen] cannot

reasonably expect that MBNA was required to obtain

the medical information necessary for her

accommodation on its own volition.

The second factor that weighs against Conneen is the

fact that all parties—including Dr. Seltzer—understood

that the initial accommodation was temporary.

Conneen was thus on notice that at some point in

time, if her problems continued, she would have to go

back to MBNA and provide further documentation.

Nevertheless, she failed to take the steps necessary to

notify MBNA that she required further assistance.

The final factor that causes the court to find that

Conneen was the party that acted in bad faith is the

fact that not only did she fail to communicate, she

affirmatively misrepresented her situation, thus

thwarting MBNA’s attempts to learn about her

condition. . . .

24

Conneen, 182 F. Supp. 2d at 380 (citations omitted). The

court also noted the following undisputed evidence

supported MBNA’s good faith:

First, when Conneen presented documentation to

MBNA in March 1998, she was immediately

accommodated. Second, MBNA did not withdraw any

accommodations without Conneen’s knowledge or

consent. For example, MBNA only terminated

Conneen’s accommodation in February 1998 after she

assured her supervisors that she was able to report on

time. Third, even after the accommodations were

withdrawn, MBNA always provided Conneen with time

to adjust, rather than making the changes effective

immediately. Fourth and most important, MBNA’s

supervisory and medical staff met with Conneen on

multiple occasions in an attempt to encourage her to

discuss any medical reasons for her tardiness. The

defendant even offered her another position with a

schedule more conducive to her needs.

Id. (citations omitted). Finally, the district court concluded

that “MBNA acted with patience and prudence in this

situation, given the information available to it at the time.”

Id. at 381. We agree. On this record, we can confidently

conclude as a matter of law that MBNA made a good faith

effort to engage in the interactive process and assist

Conneen with her frequent tardiness, and no reasonable

juror could conclude otherwise.

B. The Implied Covenant of Good Faith and Fair

Dealing

Next, Conneen alleges that MBNA breached its implied

covenant of good faith and fair dealing under Delaware law.

Delaware courts have been reluctant to recognize a broad

application of this covenant out of concern that the implied

covenant of good faith and fair dealing could swallow the

doctrine of employment at will. E.I. Dupont de Nemours &

Co. v. Pressman, 679 A.2d 436, 442 (Del. 1996). While

employment at will remains a strong presumption, the

Delaware Supreme Court has recognized the limited

application of the covenant to an at-will employment

25

contract. Id. at 440 (citing Merrill v. Crothall-American, Inc.,

606 A.2d 96 (Del. Super. Ct. 1992)).

Accordingly, Delaware law recognizes four situations

where a breach of the implied covenant of good faith and

fair dealing may occur in an at-will employment situation:

(I) where the termination violated public policy;

(ii) where the employer misrepresented an important

fact and the employee relied thereon either to accept a

new position or remain in a present one;

(iii) where the employer used its superior bargaining

power to deprive an employee of clearly identifiable

compensation related to the employee’s past service;

and

(iv) where the employer falsified or manipulated

employment records to create fictitious grounds for

termination.

Lord v. Souder, 748 A.2d 393, 400 (Del. 2000) (citing

Pressman, 679 A.2d at 442-44). Conneen alleges that

MBNA breached its implied covenant of good faith and fair

dealing on grounds (I), (ii), and (iv) above. Appellant’s Br. at

34-6.

Given the preceding discussion of Conneen’s

responsibility for the breakdown in the interactive process,

and MBNA’s good faith, we need not even respond to her

attempt to rely upon grounds (I) or (ii), and we need only

offer brief discussion of her attempt to establish liability

under ground (iv). That latter claim rests upon Conneen’s

allegation that “Nurse Peterson falsely stated the opinion of

Dr. Seltzer with regard to plaintiff ’s prospective change in

her work schedule.” Appellant’s Br. at 36. She insists that

Dr. Seltzer never told Nurse Peterson that she could resume

her normal work schedule at 8:00 a.m. However, even if we

assume that Dr. Seltzer did not specifically tell Nurse

Peterson that Conneen could begin reporting to work at

8:00 a.m., it is clear from Dr. Seltzer’s own testimony that

Conneen can establish, at best, a misunderstanding on the

part of Nurse Peterson regarding the April 7 conversation.

Moreover, given Dr. Seltzer’s further testimony that Nurse

Peterson’s conclusion was not unreasonable, Conneen

26

cannot elevate that misunderstanding into a deliberate

attempt to falsify records even under the deferential

summary judgment standard that we must apply to that

“dispute.” As noted above, no one from MBNA contacted Dr.

Seltzer without Conneen’s prior consent, and the record

does not support Conneen’s attempts to impute nefarious

motives to Nurse Peterson or anyone else at MBNA.16

IV. CONCLUSION

For the reasons set forth above, we will affirm the district

court’s grant of summary judgment in favor of MBNA

America Bank.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

16. We do not reach Conneen’s claim that MBNA is collaterally estopped

from litigating the precise contents of Dr. Seltzer’s April 7 conversation

with Nurse Peterson because we agree with the district court’s

conclusion that it is irrelevant. Even if we view that conversation in the

light most favorable to Conneen, as we must when reviewing summary

judgment, we would still be left with Conneen’s failure to engage in the

interactive process for months after that conversation. Moreover, despite

Conneen’s view of that conversation, it is undisputed that Dr. Seltzer

testified that Nurse Peterson’s recollection of the conversation was not

unreasonable. This combined with the information that Dr. Seltzer had

initially put on Conneen’s disability form clearly supports MBNA’s

conclusion that Conneen’s disability was a temporary reaction to

medication. In fact, Dr. Seltzer’s testimony is not to the contrary. Thus,

the dispute about the content of the April conversation is hardly fatal to

MBNA’s summary judgment.