Taylor v. Phoenixville Sch Dst

Opinions of the United
1999 Decisions States Court of Appeals
for the Third Circuit

4-5-1999

Taylor v. Phoenixville Sch Dst
Precedential or Non-Precedential:

Docket 98-1273

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

Recommended Citation
"Taylor v. Phoenixville Sch Dst" (1999). 1999 Decisions. Paper 89.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/89

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1999 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed April 5, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-1273

KATHERINE L. TAYLOR,

Appellant

v.

PHOENIXVILLE SCHOOL DISTRICT

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 96-cv-08470)
District Judge: Honorable J. Curtis Joyner

Argued December 17, 1998

Before: SLOVITER and COWEN, Circuit Judges and
RODRIGUEZ,* District Judge

(Filed April 5, 1999)

Joseph A. Ryan, Esq. (Argued)
13 Paoli Court
Paoli, PA 19301

Counsel for Appellant

_________________________________________________________________

*Honorable Joseph H. Rodriguez, U.S. District Judge for the District of
New Jersey, sitting by designation.
 Michael I. Levin, Esq. (Argued)
Michael I. Levin & Associates
1800 Byberry Road
1402 Masons Mill Business Park
Huntington Valley, PA 19006

Counsel for Appellee

OPINION OF THE COURT

COWEN, Circuit Judge.

Katherine Taylor brought suit under the Americans with
Disabilities Act of 1990 (ADA), 42 U.S.C. S 12101 et seq.,
and the Pennsylvania Human Relations Act (PHRA), 43
Pa.Cons.Stat.Ann. S 951 et seq., alleging that her former
employer, the Phoenixville School District, failed to provide
her reasonable accommodations for her mental illness. The
District Court granted summary judgment for the school
district, reasoning that Taylor's mental illness, bipolar
disorder, or manic depression as it is sometimes called, did
not qualify as a disability under the ADA. Alternatively, the
District Court held that even if Taylor did have a disability,
the only accommodation she specifically requested, transfer
to another position, was not possible and, consequently,
she was not an otherwise qualified individual with a
disability. We will reverse and remand for further
proceedings.

I

Before she was terminated on October 28, 1994,
Katherine Taylor had worked for twenty years as the
principal's secretary at the East Pikeland Elementary
School in the Phoenixville School District. Prior to the fall
of 1993, Taylor had not received a single disciplinary notice
from any of the various principals she worked with over the
years, and when formal evaluations were instituted in the
1991-92 school year, she received high praise.

Trouble began after Taylor suffered the onset of bipolar
disorder in late August of 1993, regrettably during the first

2
full week that a new principal, Christine Menzel, assumed
her duties at East Pikeland. While Taylor was at work
during that week, she began acting strangely, alarming
Menzel and Linda Ferrara, the school district's
administrative assistant for personnel. Menzel and Ferrara
were so disturbed by Taylor's behavior that they doubted
Taylor's capacity to leave on a train by herself and had
someone at the school district contact Taylor's son, Mark
Taylor. He soon drove his mother to Coastal Plain Hospital,
a psychiatric institution in Rocky Mount, North Carolina,
where she was admitted as an in-patient on August 31,
1993.

Hospital records indicate that Taylor had become manic
and was increasingly agitated and psychotic. According to
the records, Taylor hid herself at the train station, believing
that someone was after her, and tried to disguise herself by
covering her head with a scarf. On the car ride from
Pennsylvania to the hospital, she was delusional and
announced that the car was being escorted by state
troopers and helicopters. She also claimed that her son's
boss was after him and that there were many people on the
highway who were "firefighters" who were trying to protect
her. The hospital report noted that Taylor did not have any
insight into the severity of her condition and believed she
was being admitted due to "acute stress." The school
district's own expert, Dr. Rieger, agreed that during Taylor's
hospitalization, she "clearly had paranoid delusions" and
was hyperactive and psychotic.

Taylor was treated by two psychiatrists at the hospital
who diagnosed her illness as bipolar disorder and treated
her with lithium carbonate and an antipsychotic drug,
Navane, when lithium alone was insufficient. Once Taylor's
symptoms were brought under control by the combination
of drugs, she was discharged on September 20, 1993, and
her care was taken over by Dr. Louise Sonnenberg, a
psychiatrist in Phoenixville, Pennsylvania. Since her
discharge from the hospital, Taylor has continued to take
lithium, see Dr. Sonnenberg, and receive the necessary,
periodic blood tests.1
_________________________________________________________________

1. One widely-used text explains that: "Because lithium has an extremely
narrow therapeutic range, blood levels of the drug must be closely

3
Taylor's son stated in an affidavit that during his
mother's leave of absence, he had numerous phone
conversations with Ferrara in which he explained that his
mother would be absent from work because she had been
diagnosed with bipolar disorder and required
hospitalization. Mark Taylor also asserted in his affidavit
that during a phone call on October 8, one week before Ms.
Taylor resumed working, he told Ferrara that due to Ms.
Taylor's bipolar disorder, she "would require
accommodations when she returned to work." The affidavit
adds that he provided Ferrara with the information he
received from his mother's doctors "including diagnosis and
treatment information and medications." Coastal Plain
Hospital itself sent a letter to the school district on
September 13, 1993, identifying one of Taylor's physicians
and providing a phone number to address any additional
questions the school district might have.

According to Taylor, Ferrara did eventually contact one of
her treating physicians. Ferrara's own handwritten notes
show that she attempted to obtain copies of Taylor's
records from Coastal Plain Hospital and planned to speak
to at least one of Taylor's doctors. The school district had
_________________________________________________________________

monitored. The occurrence and intensity of side effects are, in most
cases, directly related to plasma concentrations of lithium... The main
toxic effects involve the gastrointestinal tract, the kidneys, the
thyroid,
the cardiovascular system, the skin, and the nervous system." Robert M.
Julien, A Primer of Drug Action, 8th ed., W.H. Freeman & Co., at 229-30
(1998). The Physicians' Desk Reference, 53rd ed., Medical Economics
Co., at 2750 (1999) likewise states that: "Lithium toxicity is closely
related to serum lithium levels and can occur at doses close to
therapeutic levels." Both authorities state that when the amount of
lithium in the blood is near and above the therapeutic range, side effects
can include nausea, vomiting, abdominal pain, slight tremor, lethargy,
impaired concentration, dizziness, slurred speech, ataxia, muscle
weakness, and nystagmus. Julien adds that memory problems and
weight gain are also frequent complaints with continued treatment. As
plasma levels rise higher, toxic effects include muscle rigidity, coma,
renal failure, cardiac arrhythmias, and death. Blood levels can fluctuate
for a variety of reasons. For example, Julien notes that "when a patient
lowers his or her salt intake or loses excessive amounts of salt (such as
through sweating), lithium blood levels rise and intoxication may
inadvertently follow." Id. at 228.

4
other contact with Taylor's doctors because before Taylor
was permitted to return to work, the school district
required her to submit a note from Dr. Sonnenberg saying
that Taylor was no longer disabled. Even prior to Mark
Taylor's October 8th phone call, Ferrara sent a letter to the
school district's superintendent which stated that:

Mrs. Taylor has been released from the Coastal Plain
Hospital in North Carolina and her son will be picking
her up this coming weekend to bring her back to
Pennsylvania. She will be receiving out-patient care in
Phoenixville through the Phoenixville Psychiatric
Associates. They will monitor her Blood Lithium [sic]
levels. It was stressed that she must maintain and
continue her medication. He felt, as well as the doctor,
that the first week should be easing her transition back
into the work place.

App. vol. I at 80.

A notation on the letter indicates that a copy was
forwarded to Menzel. However, Menzel has submitted an
affidavit denying that she saw the memo and asserting that:
"I did not learn the specifics of the Plaintiff's alleged
condition (i.e., bipolar disorder) until after reading a
newspaper article describing her filing of the current
lawsuit." App. vol. II at 2. Ferrara has also submitted an
affidavit asserting that "at no time was I or anyone else at
the School District aware of Plaintiff's alleged diagnosis of
bipolar disorder or the details or frequency of any
treatments she may have been receiving after returning
from Coastal Plain until after the current lawsuit was filed."
App. vol. II at 50.

After Taylor provided the note from Dr. Sonnenberg, she
resumed work on October 15, 1993 although, as Ferrara's
letter indicated, Taylor was only authorized to work half
days for the first week. Prior to her hospitalization, Taylor
had received high praise for her performance. In June of
1993, about two months before Taylor's hospitalization, the
outgoing principal, Dr. Herron, wrote that Taylor"excels in
all aspects" of her job, was a "credit to our school," and "a
tribute to excellence." App. vol. I at 86. In a subsequent
letter of recommendation, Dr. Herron again praised Taylor's
performance without reservation and stated that:

5
 As a secretary, Mrs. Taylor served me and the entire
school family exceeding[ly] well... I felt comfortable in
leaving the building, sometimes for an extended
amount of time, because of Mrs. Taylor's skills. Indeed,
at such times, Mrs. Taylor carried on the full functions
of the school as if she herself was capable of running
the functions of the building without supervision, and,
indeed, in such cases, she was entirely capable of
doing so.

App. vol. I at 87.

Almost immediately upon Taylor's return to work,
Menzel, following Ferrara's advice, began documenting
errors Taylor committed. The errors were then compiled
into a bullet-format list, the list was presented to Taylor,
and soon thereafter Menzel and Ferrara would call Taylor
into a disciplinary meeting and offer her a chance to rebut
the charges. A representative from Taylor's union also
attended although it is unclear to what extent the
representative participated.

Taylor's first disciplinary notice, dated November 9, 1993,
listed errors as early as October 19, 1993, only four days
after Taylor's return to work and while she was still
working part time. Eight more disciplinary notices followed,
dated 11/23/93, 12/9/93, 1/6/94, 2/1/94, 3/11/94,
4/22/94, 9/2/94, and 10/27/94, the last arriving shortly
before Taylor was terminated. Over the course of the
disciplinary meetings, Taylor disputed some charges and
tried to explain others, but as 1994 wore on, Menzel
documented many errors that Taylor did not contest, and
the interpersonal friction between Menzel and Taylor
continued unabated. Disciplinary notices during this period
list problems such as missed deadlines, mishandling of
records, typing errors, interpersonal conflicts, and
undelivered messages.

Part of Taylor's complaint about her treatment is that
Menzel often did not speak to her informally and in-person
about problems as they arose. Instead, Taylor alleges that
Menzel documented every misstep, saved letters containing
typos, photographed Taylor's desk and trash can, as well as
the inside of the office refrigerator, and waited to confront
Taylor with the evidence in the disciplinary meetings.

6
Taylor also objects that the school district made her job
more difficult upon her return from the hospital. First,
during Taylor's absence, Menzel instituted a number of
changes in the office: she introduced new office policies,
created new forms, relocated documents, rearranged
furniture, threw out Taylor's old filing system, and
discarded files, including some in Taylor's desk. Taylor
claims that these changes were disorienting and made it
much more difficult to accomplish tasks she could easily
perform before the hospitalization. Of course, Taylor's
absence coincided with the first weeks Menzel served as
principal, and thus changes were inevitable and part of
Menzel's prerogative as a new principal. The gravamen of
Taylor's complaint, however, focuses on the abrupt,
seemingly hostile manner in which the changes were made.

Compounding Taylor's difficulties, a new computer
system was introduced to keep track of student records and
other data. The school district points out that plans to
introduce the computers had been underway prior to
Taylor's hospitalization, and according to an affidavit
submitted by a school-district employee, Taylor had more
difficulty than the other secretaries at a training session
conducted in July of 1993. Taylor does not appear to
dispute that the school district was entitled to switch to
computers; rather, the thrust of her objection seems to be
that the school district raised another hurdle by the
manner in which the new system was introduced when she
returned from her hospitalization.

Taylor claims that her job was made more difficult in
another, more straightforward way: Following her return,
her job description was changed, increasing the number of
her job responsibilities from 23 to 42. It is not clear from
the record when these changes were made, how substantial
they were, or to what extent the new list simply enumerated
in greater detail duties she already performed, but reading
the evidence in the light most favorable to Taylor, there is
reason to believe that the new list added significant
responsibilities and made her return more difficult.

On September 2, 1994 Taylor received a notice placing
her on probation for 30 days and informing her that if her
performance did not improve, she would be terminated. She

7
was in fact discharged on October 28, 1994 although
Taylor's union representative subsequently negotiated with
the school district to allow Taylor to "retire" and receive
some retirement benefits. Since her termination, Taylor has
applied at different times for unemployment benefits and
disability benefits.

II

The District Court had subject matter jurisdiction over
Taylor's ADA claim pursuant to 28 U.S.C. S 1331 and
supplemental jurisdiction over Taylor's state-law claim
pursuant to 28 U.S.C. S 1367. We have appellate
jurisdiction pursuant to 28 U.S.C. S 1291. Our review of a
district court's grant of summary judgment is plenary.
Olson v. General Electric Astrospace, 101 F.3d 947, 951 (3d
Cir. 1996). In evaluating the school district's motion for
summary judgment, we must determine whether there are
any genuine disputes of material fact, and if not, then
viewing the evidence in the light most favorable to the
plaintiff, we must decide whether the school district was
entitled to judgment as a matter of law. See Fed.R.Civ.P.
56; Celotex Corporation v. Catrett, 477 U.S. 317, 322-23,
106 S.Ct. 2548, 2552-53 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2510-11
(1986).

III

A. Basic statutory framework

Under the ADA, employers are prohibited from
discriminating "against a qualified individual with a
disability because of the disability of such individual in
regard to job application procedures, the hiring,
advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions,
and privileges of employment." 42 U.S.C. S 12112(a). A
"qualified individual with a disability" is defined by the ADA
as a person "with a disability who, with or without
reasonable accommodation, can perform the essential
functions of the employment position that such individual
holds or desires." 42 U.S.C. S 12111(8). A"disability" is

8
defined as: "(A) a physical or mental impairment that
substantially limits one or more of the major life activities
of [an] individual; (B) a record of such impairment; or (C)
being regarded as having such an impairment." 42 U.S.C.
S 12102(2).

In view of the foregoing definitions, we have held that in
order for a plaintiff to establish a prima facie case of
discrimination under the ADA, the plaintiff must show: "(1)
he is a disabled person within the meaning of the ADA; (2)
he is otherwise qualified to perform the essential functions
of the job, with or without reasonable accommodations by
the employer; and (3) he has suffered an otherwise adverse
employment decision as a result of discrimination." Gaul v.
Lucent Technologies, 134 F.3d 576, 580 (3d Cir. 1998)
(citing, Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996)).

Discrimination under the ADA encompasses not only
adverse actions motivated by prejudice and fear of
disabilities, but also includes failing to make reasonable
accommodations of disabilities. The ADA specifies that an
employer discriminates against a qualified individual with a
disability when the employer does "not mak[e] reasonable
accommodations to the known physical or mental
limitations of the individual unless the [employer] can
demonstrate that the accommodation would impose an
undue hardship on the operation of the business of the
[employer]." 42 U.S.C. S 12112(b)(5)(A).

Before turning to the first issue, whether Taylor has a
disability under the ADA, we mention that we will only
discuss Taylor's ADA claim because our analysis of an ADA
claim applies equally to a PHRA claim. Kelly v. Drexel
University, 94 F.3d 102, 105 (3d Cir. 1996).

B. Does Taylor have a disability under the ADA?

As set forth above, Taylor can establish that she has a
disability if she has a mental impairment that substantially
limits a major life activity, has a record of such an
impairment, or is regarded as having such an impairment.
42 U.S.C. S 12102(2). Taylor argues that she can satisfy
each of these standards, but because we conclude that she
has a mental impairment that substantially limits a major
life activity, we need not reach the other two grounds.

9
No one disputes that bipolar disorder counts as a mental
impairment under the ADA. The ADA's regulations define a
"physical or mental impairment" as including "[a]ny mental
or psychological disorder, such as... emotional or mental
illness..." 29 C.F.R. S 1630.2(h)(2). While the District Court
agreed that bipolar disorder clearly qualifies as a "mental
impairment," the District Court nonetheless concluded that
Taylor's impairment did not substantially limit one of her
major life activities. Our analysis therefore begins with the
definitions for "substantially limits" and"major life
activities."

While we have observed that "[t]he ADA does not define
`major life activities,' " Kelly, 94 F.3d at 105 (citation
omitted), the ADA's regulations provide a nonexhaustive list
of major life activities that includes "functions such as
caring for oneself, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and
working." 29 C.F.R. S 1630.2(i).

According to the ADA's regulations, an impairment
"substantially limits" a major life activity when the person
is either: "(i) Unable to perform a major life activity that the
average person in the general population can perform; or (ii)
Significantly restricted as to the condition, manner or
duration under which an individual can perform a
particular major life activity as compared to the condition,
manner, or duration under which the average person in the
general population can perform that same major life
activity." 29 C.F.R. S 1630.2(j)(1). The regulations list the
following factors to use in evaluating when someone is
substantially limited in a major life activity:"(1) The nature
and severity of the impairment; (ii) The duration or
expected duration of the impairment; and (iii) The
permanent or long term impact, or the expected permanent
or long term impact of or resulting from the impairment."
29 C.F.R. S 1630.2(j)(2). A separate analysis is applied
under the regulations to determine when the major life
activity of working is substantially limited, see
Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778 (3d
Cir. 1998); 29 C.F.R. S 1630.2(j)(3), but since we find
Taylor's illness affected major life activities even more
fundamental than working, we need not analyze her
disorder's impact on her ability to work.

10
When someone must be confined to a hospital because
she is psychotic, increasingly agitated, and gripped by
delusions, it is manifest that her abilities to think, care for
herself, concentrate, and interact with others are
substantially limited. As Taylor's records from Coastal Plain
Hospital document, before Taylor was treated with lithium
and an antipsychotic drug, she suffered paranoid delusions
that people were trying to kill her, inducing her to disguise
herself at the train station. On the car ride, she thought her
son's life was in danger, believed that the highway patrol
was escorting her, and thought the highway was filled with
"firefighters" there to protect her. Unable to recognize that
these beliefs were baseless, she explained at the time of her
admission that she was there for "acute stress." Symptoms
like these constitute severe limitations in a person's ability
to think.

We have previously held that disabilities should be
evaluated based on the plaintiff's unmedicated state.
Matczak v. Frankford Candy and Chocolate Co., 136 F.3d
933 (3d Cir. 1997). In Matczak we explained that according
to the United States Equal Employment Opportunity
Commission's (EEOC) interpretive guidelines, whether an
impairment "substantially limits" a major life activity
should be evaluated "without regard to mitigating measures
such as medicines, or assistive or prosthetic devices." Id. at
937 (quoting 29 C.F.R. Pt. 1630, App. S 1630.2(j) at 348).
We recognized that although the EEOC's interpretive
guidelines are not entitled to the same degree of deference
as regulations, we give the EEOC's interpretations"a great
deal of deference since Congress charged the EEOC with
issuing regulations to implement the ADA." Id. We added
that "we must give the EEOC's interpretation of its own
regulations `controlling weight unless it is plainly erroneous
or inconsistent with the regulation[s].' " Id. (quoting, Thomas
Jefferson University v. Shalala, 512 U.S. 504, 512, 114
S.Ct. 2381, 2386 (1994)).

Legislative history reinforces the EEOC's position and
shows that Congress intended mitigating measures to be
excluded from the evaluation of when an impairment
substantially limits a major life activity: "[P]ersons with
impairments, such as epilepsy or diabetes, which

11
substantially limit a major life activity are covered under
the first prong of disability, even if the effects of the
impairment are controlled by medication." Id. (quoting H.R.
Rep. No. 101-485(II), at 52 (1990), reprinted in 1990
U.S.C.C.A.N. 334) See also H.R. Rep. No. 101-485(III), at 28
(1989), reprinted in 1990 U.S.C.C.A.N. 451; S.Rep. No. 101-
116, at 23 (1989).

We recognize that the Tenth Circuit has rejected this view
and held that disabilities should be evaluated based on
their mitigated state. See Sutton v. United Air Lines, Inc.,
130 F.3d 893, 902 (10th Cir. 1997), cert. granted, 119 S.Ct.
790 (Jan. 8, 1999). And we are aware that the Supreme
Court has decided to review Sutton along with two similar
cases. See Murphy v. United Parcel Service, 141 F.3d 1185
(10th Cir. 1998)(unpublished table decision), cert. granted,
119 S.Ct. 790 (Jan. 8, 1999); Kirkingburg v. Albertson's
Inc., 143 F.3d 1228 (9th Cir. 1998), cert. granted, 119 S.Ct.
791 (Jan. 8, 1999). Nonetheless, we remain firm in our
belief that legislative history and deference to the
administering agency require the rule announced in
Matczak, and we are, of course, bound by our prior
precedent. We would add that the majority of circuits which
have considered the issue have held that disabilities should
be judged based on their unmitigated state. See Arnold v.
United Parcel Service, Inc., 136 F.3d 854, 857-866 (1st Cir.
1998); Roth v. Lutheran Gen. Hosp., 57 F.3d 1446, 1454
(7th Cir. 1995); Doane v. City of Omaha, 115 F.3d 624,
627-28 (8th Cir. 1997); Holihan v. Lucky Stores, Inc., 87
F.3d 362, 366 (9th Cir. 1996); Harris v. H & W Contracting
Co., 102 F.3d 516, 520-21 (11th Cir. 1996); but see
Washington v. HCA Health Services of Texas, Inc., 152 F.3d
464 (5th Cir. 1998)(only "serious impairments" like
diabetes, epilepsy, and hearing impairments will be
assessed in their unmitigated state; permanent corrections
will be evaluated based on the mitigated condition); Gilday
v. Mecosta County, 124 F.3d 760, 767-68 (6th Cir.
1997)(Kennedy, J., concurring in part); id. at 768 (Guy, J.,
concurring in part and dissenting in part)("impact of
mitigating measures must be decided on a case-by-case
basis"). Except for the Tenth Circuit, even those circuits
rejecting the EEOC's rule have allowed that serious
conditions, which we believe Taylor's illness is, should be

12
judged based on their unmitigated state. As the First
Circuit pointed out in Arnold, 136 F.3d at 861, it makes
little sense to insist that serious, chronic conditions like
diabetes, epilepsy, or bipolar disorder cannot be disabilities
unless they are so poorly controlled that it becomes all but
inevitable that no reasonable accommodation is possible.2
_________________________________________________________________

2. Employers need not fear that discounting mitigating factors will
establish a flood of new-found disabilities and demands for
accommodations. First, many widely-treated conditions simply do not
significantly restrict a person's functioning as compared to the average
person's - even when those conditions are left untreated. If, on the other
hand, a condition is disabling when untreated, but really is fully
corrected by mitigating measures, then it is very unlikely that employers
will need to make much in the way of accommodations, for by
hypothesis, the condition imposes no restrictions on the employee.

The value of looking to the unmitigated condition is that it allows the
ADA to encompass serious, chronic conditions like diabetes or bipolar
disorder that, while capable of being controlled by medication, are not
always perfectly controlled. Medical treatments for many chronic
conditions can in some instances themselves create limitations. See, e.g.,
supra note 1. The problem with insisting that these uncontrolled
symptoms must themselves be substantially limiting before
accommodations are required is that once the symptoms of a serious,
chronic condition are no longer kept in check, they can rapidly become
totally disabling. As a result, employees with these disabilities would be
denied the right to accommodations when modest accommodations could
help them surmount significant although not substantially limiting
symptoms. And "disability" status would only be achieved when their
health had deteriorated so precipitously that no reasonable
accommodation was possible. To take Taylor's case, she would not be
legally entitled under the ADA to even the most simple accommodations
for blood tests until she experienced the onset of another manic episode
which could easily result in her becoming psychotic, requiring another
commitment to an institution.

It might be thought that those who have serious, chronic conditions
can turn to the "regarded as disabled" prong to establish a disability and
obtain accommodations when symptoms or the side effects of treatments
flare. However, aside from the fact that an employer may not regard the
employee as disabled, it remains an open question in this circuit
whether employees are entitled to accommodations if they can only
satisfy the "regarded as" prong for demonstrating a disability. See Deane
v. Pocono Medical Center, 142 F.3d 138, 140-41 (3d Cir. 1998)(en banc).

13
The District Court concluded that Taylor was not
disabled because she failed to show that her bipolar
disorder was more than a temporary condition. Closely
related to this point was the District Court's alternative
statement that Taylor did not suffer a disability at the time
the adverse employment decision was made, i.e., on the
District Court's view, the date of her termination.

Concerning the District Court's second statement, we
want to clarify that Taylor alleges the school district refused
to accommodate her throughout the period starting
immediately after she returned to work from the hospital
and continuing until the date of her termination. Thus, the
proper inquiry is whether Taylor was disabled during the
period she says she sought and was denied reasonable
accommodations. We do not narrow the inquiry and ask
only whether Taylor was psychotic or had some
uncontrolled symptoms of her bipolar disorder on the
specific day she was terminated, for that would vitiate the
rule that a disability controlled by medication is still a
disability and would ignore the fact that the alleged failure
to accommodate began before the termination.

The District Court's position properly understood seems
to be that Taylor failed to prove that her illness continued
beyond the date of her discharge from Coastal Plain, and
therefore, the school district was not required to
accommodate a disability that no longer existed. The
trouble with this view is that Taylor provided ample
evidence that her disability has continued since the date of
her hospitalization.3
_________________________________________________________________

3. We have previously held that some temporary impairments will not
qualify as disabilities under the ADA even during the time the
impairment actively affects the individual. McDonald v. Com. of Pa., Dept.
of Public Welfare, 62 F.3d 92 (3d Cir. 1995). We explained in McDonald
that the EEOC's guidelines provide that "temporary, nonchronic
impairments of short duration, with little or no long term permanent
impact, are usually not disabilities." Id. at 95 (quoting 29 C.F.R. Pt.
1630, App. S1630.2(j) at 347-48) We also reviewed the factors set forth
in 29 C.F.R. S 1630.2(j)(2) for determining when an impairment
"substantially limits" a major life activity: the impairment's nature and
severity, its expected duration, and its long-term impact. Because we
conclude that Taylor's condition was chronic and substantially limiting,
we need not delve into the question of which acute conditions are
excluded from the ADA's definition of a disability.

14
The District Court noted that Taylor's records from
Coastal Plain Hospital did not discuss her prognosis after
the discharge. The records only stated that at the time of
discharge, Taylor was doing well, was "not overtly
psychotic," and would be "followed by a psychiatrist of her
choice in her home town." These statements certainly are
not inconsistent with Taylor's having a chronic condition,
and by indicating that her symptoms are currently under
control and that she will receive further treatment, the
records at least imply that the condition is ongoing. Other
evidence before the District Court affirmatively
demonstrated that Taylor has a continuing illness. Most
obviously, Taylor has continued to take lithium and see a
psychiatrist. Dr. Sonnenberg, Taylor's treating physician,
stated that Taylor's bipolar disorder "is not cured but
controlled with her medication" and "without the medicine
Mrs. Taylor's symptoms are likely to be exhibited."4

The District Court evidently refused to consider Dr.
Sonnenberg's opinion because the Court said, citing Gaul v.
AT&T, Inc., 955 F. Supp. 346 (D.N.J. 1997), Taylor could
not rely on the opinion of her own treating physician. But
Gaul stated that "[i]t is well settled that treating physicians
may testify as to any subject relevant to the evaluation and
treatment of their patients." Id. at 349. At issue in Gaul was
whether testimony by the plaintiff 's treating physician
satisfied the New Jersey Supreme Court's holding that
"expert medical testimony is required to establish the fact
of the employee's [handicap]." Id. (quoting Clowes v.
Terminex International, Inc., 109 N.J. 575, 597 (1988)). Just
as the District Court in Gaul deemed admissible the
opinion of a plaintiff 's treating physician, we hold that a
plaintiff in an ADA case can rely on the testimony of his or
her treating physician to demonstrate that the plaintiff has
a disability.

The District Court also cited the report of the school
district's expert witness, Dr. Rieger. Dr. Rieger stated that:
_________________________________________________________________

4. The DSM-IV states that: "Bipolar I Disorder is a recurrent disorder -
more than 90% of the individuals who have a single Manic Episode go
on to have future episodes." Diagnostic and Statistical Manual of Mental
Disorders, 4th Ed., American Psychiatric Association, at 353 (1994).

15
 There is no doubt in my mind that Ms. Taylor
experienced a biologic psychiatric illness in which
genetic factors play a role. These illnesses can appear
even fairly late in life regardless of life events and
stressors...

When I examined Ms. Taylor[,] she had a normal
mental state. Her chronic biological psychiatric illness
was obviously well controlled by medication. If she
continues to take her medications as instructed[,] she
will be able to work. She is now not at all disabled from
a psychiatric point of view... If she were somehow not
compliant with the medication[,] she might relapse into
psychosis and then might become disabled.
Theoretically there is a very small chance that she
could develop another psychotic break even while being
properly treated.

App. vol. I at 157 and 159.

The District Court placed great weight on the fact that
Dr. Rieger said that Taylor "might relapse" if she ceased
taking medication. Given that both parties' experts agree
that Taylor's condition is chronic, we conclude that the
District Court erred in reasoning that Taylor's condition
could be temporary. We would add that Dr. Sonnenberg
stated that without medication Taylor's symptoms "are
likely to be exhibited," and nothing in Dr. Rieger's report
suggests that it is likely Taylor would be fine without
medication. When both parties' experts agree that the
plaintiff's condition is chronic, both agree that the plaintiff
could relapse without medication, and the plaintiff's
treating physician has decided the risk of relapse is serious
enough to warrant having the plaintiff continue taking a
drug that imposes significant burdens, the plaintiff has
established that her condition is not temporary. 5
_________________________________________________________________

5. Although the evidence cited above is sufficient for our holding, we
note
that a leading text on bipolar disorder states: "We wish to emphasize the
common clinical belief that the great majority of bipolar patients
withdrawn from lithium will eventually relapse. The wisdom of this
assumption is reinforced by long-term follow-up studies... The Page
study involved 101 bipolar and recurrent unipolar patients maintained
on lithium for a median of 13 years. Of the 31 who stopped lithium, all
but 2 suffered relapses, and those 2 were unipolar patients; that is, all
bipolar patient who discontinued lithium relapsed." Frederick Goodwin
and Kay Redfield Jamison, Manic-Depressive Illness, Oxford University
Press, at 680-81 (1990). See also Julien, supra note 1, at 232.

16
We have previously held that a plaintiff with epilepsy,
whose condition had been controlled for thirty years with
medication, could still demonstrate that he had a disability.
Matczak, 136 F.3d at 937-38. The likelihood of relapse was
never an issue; it was simply assumed reasonably enough
that if continuing drug treatment was medically indicated,
the condition persisted. We would add that the EEOC has
said chronic, episodic conditions can be substantially
limiting, see 2 EEOC Compliance Manual, Enforcement
Guidance for Psychiatric Disabilities, at 9 (March 25, 1997),
and indeed, it seems reasonable to say that conditions that
cause periodic, substantial shifts in a person's ability to
function can be highly disabling. Many activities in life, and
certainly most jobs, require a consistent level of
functioning. A career interrupted by hospitalization,
especially hospitalization punctuated by strange,
embarrassing behavior, is not an easy one.

Should our discussion above create any doubt, we want
to emphasize that even once a plaintiff establishes that her
condition persists or is chronic, the plaintiff still must
show, as we specifically required in Matczak, 136 F.3d at
938, that her persistent condition substantially limits a
major life activity when left untreated. Not every chronic
condition is a disability under the ADA. But as discussed
above, Taylor has shown that the untreated symptoms of
her chronic illness do substantially limit a number of her
major life activities. The school district's own expert agreed
that Taylor had bipolar disorder which caused "an acute
psychotic break, necessitating hospitalization," and that
Taylor "clearly had paranoid delusions" and was
"hyperactive and euphoric" before and during her
hospitalization. App. vol. I at 156 and 159.

Because we find that the undisputed evidence in the
record shows that Taylor had a disability, we believe that
judgment should be entered in Taylor's favor on this issue.
The school district had a full opportunity to present its side
on this question, and both parties' experts agree on the
essential facts. See Fabric v. Provident Life & Accident
Insurance Co., 115 F.3d 908, 915 (11th Cir. 1997), cert.
denied, 118 S.Ct. 1563 (1998)("Summary judgment in favor
of a non-moving party has become an accepted method for

17
an appellate court to expedite litigation... [However,] [i]f a
party did not have an opportunity to present his side of a
dispute, granting summary judgment for a non-moving
party would be improper.")(citations omitted). See also 10A.
C. Wright, A. Miller, and M. Kane, Federal Practice and
Procedure: Civil 3d S 2716 at 292-93 (1998).

C. Reasonable accommodations

Having concluded that Taylor was entitled to judgment as
a matter of law that she has a disability under 42 U.S.C.
S 12102(2)(A), we must consider whether the school district
failed to provide reasonable accommodations. On this issue,
we find that the District Court applied the wrong legal
standards and that under the correct standard, disputes of
material fact remain, requiring remand.

As stated above, an employer commits unlawful
discrimination under the ADA if the employer does"not
mak[e] reasonable accommodations to the known physical
or mental limitations of an otherwise qualified individual
with a disability who is an applicant or employee, unless
[the employer] can demonstrate that the accommodation
would impose an undue hardship on the operation of the
business of [the employer]." 42 U.S.C.S 12112(b)(5)(A).

In evaluating whether a plaintiff is a "qualified individual
with a disability," we have held that a plaintiff must
"satisf[y] the prerequisites for the position, such as
possessing the appropriate educational background,
employment experience, skills, licenses, etc." and, the
plaintiff must be able to "perform the essential functions of
the position held or desired, with or without reasonable
accommodations." Gaul, 134 F.3d at 580 (quoting, 29
C.F.R. Pt. 1630, App. S 1630.2(m) at 351). Because Taylor
held her position as secretary to the principal for many
years, receiving high praise, there is no serious dispute that
she satisfies the prerequisites for the position. The critical
issue is whether Taylor could, with reasonable
accommodations, perform the essential functions of her job
following her return from her hospitalization.

The Interactive Process

The ADA's regulations state that: "To determine the
appropriate reasonable accommodation it may be necessary

18
for the [employer] to initiate an informal, interactive process
with the [employee] in need of accommodation. This process
should identify the precise limitations resulting from the
disability and the potential reasonable accommodations
that could overcome those limitations." 29 C.F.R.
S 1630.2(o)(3). Similarly, the EEOC's interpretive guidelines
provide that: "Once a qualified individual with a disability
has requested provision of a reasonable accommodation,
the employer must make a reasonable effort to determine
the appropriate accommodation. The appropriate
reasonable accommodation is best determined through a
flexible, interactive process that involves both the employer
and the [employee] with a disability." 29 C.F.R. Pt. 1630,
App. S 1630.9 at 359.

We have previously recognized both this regulation and
the EEOC's interpretive guideline and applied them to a
claim brought under the Rehabilitation Act, 29 U.S.C.
S 701, et seq. Mengine v. Runyon, 114 F.3d 415, 419-20 (3d
Cir. 1997); see also Deane v. Pocono Medical Center, 142
F.3d 138, 149 (3d Cir. 1998)(en banc).6 Based on the
regulation and interpretive guidelines, we held in Mengine
that "both parties have a duty to assist in the search for
appropriate reasonable accommodation and to act in good
faith." Id. We noted that other circuits have taken this view.
See, e.g., Beck v. University of Wisconsin Bd. of Regents, 75
F.3d 1130, 1135 (7th Cir. 1996)("A party that obstructs or
delays the interactive process is not acting in good faith. A
party that fails to communicate, by way of initiation or
response, may also be acting in bad faith."); Taylor v.
Principal Financial Group, Inc., 93 F.3d 155, 165 (5th Cir.
1996)(The "employee's initial request for an
accommodation... triggers the employer's obligation to
participate in the interactive process...").

In Bultemeyer v. Fort Wayne Community Schools, 100
F.3d 1281 (7th Cir. 1996) an employee diagnosed with
_________________________________________________________________

6. While Mengine involved a claim under the Rehabilitation Act, the
regulation and interpretive guidelines applied in the case were from the
ADA. Furthermore, according to 42 U.S.C. S 12201(a), the ADA should
not be construed to apply a lesser standard than the Rehabilitation Act.
See also Bragdon v. Abbott, 118 S.Ct. 2196, 2202 (1998).

19
paranoid schizophrenia and bipolar disorder sought to
return from an extended disability leave to his job as a
custodian. His employer informed him that he would be
reassigned to the largest school operated by Fort Wayne
Community Schools, and added that he would not receive
any special accommodation. The employer then instructed
the plaintiff to take a physical and report to work or else he
would be terminated. After touring the new school with the
custodial foreman, the plaintiff told his employer that he
did not think he was equal to the task but said he was not
resigning. The plaintiff subsequently failed to take the
physical or report to work although he did have his
psychiatrist send a letter to the employer which stated that
due to the plaintiff 's illness, it would be in the plaintiff 's
best interest to work at a less stressful school. The
employer never responded and terminated the plaintiff. The
Seventh Circuit, reversing summary judgment for the
employer, concluded that there was a genuine dispute as to
whether the employer engaged in the interactive process of
seeking accommodations.

We agree with the Seventh Circuit which held that:

An employee's request for reasonable accommodation
requires a great deal of communication between the
employee and employer... [B]oth parties bear
responsibility for determining what accommodation is
necessary... `[N]either party should be able to cause a
breakdown in the process for the purpose of either
avoiding or inflicting liability. Rather, courts should
look for signs of failure to participate in good faith or
failure by one of the parties to help the other party
determine what specific accommodations are
necessary. A party that obstructs or delays the
interactive process is not acting in good faith. A party
that fails to communicate, by way of initiation or
response, may also be acting in bad faith. In essence,
courts should attempt to isolate the cause of the
breakdown and then assign responsibility.'

Bultemeyer, 100 F.3d at 1285 (quoting Beck, 75 F.3d at
1135).

Our analysis of the interactive process in the present
case is divided into two steps: first, we will clarify what

20
notice must be given to the employer to trigger the
employer's obligations under the interactive process, and
second, we will elaborate on the employee's and the
employer's duties once the interactive process comes into
play.

1. Notice of the disability and request for ac commodation

The first question we must address is who must make
the request for accommodation and what form that request
must take. The EEOC compliance manual provides that"a
family member, friend, health professional, or other
representative may request a reasonable accommodation on
behalf of an individual with a disability." 2 EEOC
Compliance Manual, Enforcement Guidance for Psychiatric
Disabilities, at 20-21. Likewise, in Bultemeyer the Seventh
Circuit allowed that an employee's psychiatrist could make
a request for accommodations on behalf of an employee.
Bultemeyer, 100 F.3d at 1286. In our case, therefore,
Taylor's son could make the initial request for
accommodations.

The EEOC's manual further provides that "[r]equests for
reasonable accommodations do not need to be in writing,"
2 EEOC Compliance Manual, Enforcement Guidance for
Psychiatric Disabilities, at 21, and "[t]o request
accommodation, an individual may use `plain English' and
need not mention the ADA or use the phrase `reasonable
accommodation.' " Id. at 19. The Seventh Circuit said that
"properly participating in the interactive process means
that an employer cannot expect an employee to read its
mind and know that he or she must specifically say`I want
reasonable accommodation,' particularly when the
employee has a mental illness." Bultemeyer, 100 F.3d at
1286.

The EEOC's manual makes clear, however, that while the
notice does not have to be in writing, be made by the
employee, or formally invoke the magic words "reasonable
accommodation," the notice nonetheless must make clear
that the employee wants assistance for his or her disability.
In other words, the employer must know of both the
disability and the employee's desire for accommodations for
that disability.

21
These rules are consistent with the statute which says
that the employer must make reasonable accommodations
to an employee's "known" disability. 42 U.S.C.
S 12112(b)(5)(A). What matters under the ADA are not
formalisms about the manner of the request, but whether
the employee or a representative for the employee provides
the employer with enough information that, under the
circumstances, the employer can be fairly said to know of
both the disability and desire for an accommodation.

What information the employee's initial notice must
include depends on what the employer knows. In Taylor v.
Principal Financial Group, Inc., 93 F.3d 155 (5th Cir. 1996),
an employee whose job performance had fallen off
mentioned to his employer that he was diagnosed with
bipolar disorder. Nothing the employee had done suggested
the nature of his illness. When the employer, who said he
did not know about the illness, asked the employee if he
was okay, the employee responded that he was. The
employee never offered further information about his
disorder and, even more significantly, could not confirm
that he ever explicitly asked for an accommodation or help
of any sort. Under these circumstances, the employee has
not been given sufficient notice to trigger the employer's
duty to engage in the interactive process. Cf. Crandall v.
Paralyzed Veterans of America, 146 F.3d 894 (D.C. Cir.
1998)(Employee with bipolar disorder could not state a
claim under the Rehabilitation Act when he never told his
employer of his mental illness and never requested
accommodations.). Employers cannot assume employees
are disabled and need accommodations.

Our case differs markedly. It is undisputed that Taylor
became psychotic at work, that the school district knew she
was hospitalized immediately thereafter, and that Coastal
Plain Hospital contacted the school district by letter about
Taylor's hospitalization and provided a phone number to
answer questions. It is also undisputed that Ferrara wrote
a note saying she planned to contact Taylor's doctors and
that she wrote a letter to the superintendent, stating that
"Phoenixville Psychiatric Associates... will monitor [Taylor's]
Blood Lithium [sic] levels. It was stressed that she must
maintain and continue her medication." The school district

22
also does not deny that it required Taylor to submit a note
from Dr. Sonnenberg, further demonstrating that the school
district knew how to get information from Taylor when it
deemed it necessary.

Based on this evidence, the school district had more than
enough information to put it on notice that Taylor might
have a disability, and therefore, in order to trigger the
school district's obligation to participate in the interactive
process, Taylor or her representative only needed to request
accommodation. In light of the undisputed background
information putting the school district on notice that Taylor
had recently developed a serious disability, we think it
would be especially inappropriate to insist that Taylor's son
must have specifically invoked the ADA or used the words
"reasonable accommodation" when he requested
accommodations. Under the circumstances, it hardly
should have come as a surprise that Taylor would want
some accommodations, particularly as the successive
disciplinary meetings began to mount for an employee who
had previously performed very well. We would add that the
school district had ample time to seek legal advice on its
obligation to provide reasonable accommodations.
Regardless, Taylor's son has submitted an affidavit saying
that not only did he provide diagnostic and treatment
information to the school district, he also asked for
"accommodations" for his mother.

Menzel's affidavit asserts that she did not "learn the
specifics" of Taylor's disorder until after this litigation was
started. Ferrara's affidavit states that: "To my knowledge, at
no time was I or anyone else at the School District aware
of Plaintiff 's alleged diagnosis of bipolar disorder or the
details or frequency of any treatments she may have been
receiving after returning from Coastal Plain until after the
current lawsuit was filed."

We want to make clear that the school district's duty to
participate in the interactive process is triggered if Taylor
notified either Menzel who was Taylor's supervisor and East
Pikeland's principal, or Ferrara, the school district's
administrative assistant for personnel. Thus, if Taylor's son
requested accommodations from Ferrara, then the school
district would have a duty to participate in the interactive

23
process regardless of how much Menzel knew about
Taylor's disorder.

We would add that to trigger the school district's duty to
participate in the interactive process, it is not essential that
Ferrara or Taylor knew the specific name of Taylor's
condition although Taylor's son has created a factual
dispute on this issue by saying that he provided Ferrara
with diagnostic and treatment information. Suffice it to say
that there is no genuine dispute that the school district was
aware that Taylor exhibited serious psychiatric problems
and those problems were severe enough to require her to be
hospitalized for roughly three weeks. Following Taylor's
discharge from the hospital, the school district knew that
Phoenixville Psychiatric Associates monitored the lithium
Taylor was taking and that Taylor continued to see a
psychiatrist. Taylor also provided the school district with a
number of avenues for obtaining further information from
her doctors, avenues that the school district used. If there
was any further information that the school district felt it
needed to justify an accommodation, it was incumbent on
the school district to ask for it. As the Seventh Circuit has
said, "[t]he employer has to meet the employee half-way."
Bultemeyer, 100 F.3d at 1285. To raise the bar for
triggering the interactive process any further would
essentially nullify the process.

Once the employer knows of the disability and the
employee's desire for accommodations, it makes sense to
place the burden on the employer to request additional
information that the employer believes it needs. Disabled
employees, especially those with psychiatric disabilities,
may have good reasons for not wanting to reveal
unnecessarily every detail of their medical records because
much of the information may be irrelevant to identifying
and justifying accommodations, could be embarrassing,
and might actually exacerbate workplace prejudice. An
employer does not need to know the intimate details of a
bipolar employee's marital life, for example, in order to
identify or justify an accommodation such as a temporary
transfer to a less demanding position.

Another reason for placing some burden on the employer
is that, as the Seventh Circuit recognized in Bultemeyer, an

24
employee with a mental illness may have difficulty
effectively relaying medical information about his or her
condition, particularly when the symptoms are flaring and
reasonable accommodations are needed. Id. See also Criado
v. IBM Corp., 145 F.3d 437, 444 (1st Cir. 1998)(When an
employer terminated an employee with a mental illness due
to an alleged miscommunication over a leave of absence, a
jury could find that the employer failed to live up to its
responsibility to help find accommodations.). It is worth
noting that Taylor's hospital records specifically stated that
at the time of her hospitalization, she "lacked insight" into
her condition and believed her only problem was"acute
stress."

2. Application of the interactive process foll owing adequate
notice

Viewing the evidence in the light most favorable to Taylor,
we believe that a reasonable jury could conclude, based on
the evidence presented thus far, that the school district did
not meet its burden under the interactive process. Taylor's
version of the case can be stated succinctly as follows: After
Menzel and Ferrara watched Taylor become manic and
require hospitalization, the two decided that Menzel should
begin documenting Taylor's every error within days of her
return, despite the fact that Taylor's son requested
accommodations, informed them about Taylor's condition,
and provided them with the means to obtain more
information if needed. Notwithstanding Taylor's previous
twenty years of strong performance and the school district's
clear notice of Taylor's disability and desire for
accommodations, the school district offered no
accommodations or assistance in finding them, made
Taylor's job more difficult, and simply sat back and
continued to document her failures. A reasonable jury
could conclude that the school district did not engage in an
interactive process of seeking accommodations and is
responsible for the breakdown in the process.

The school district emphasizes that the only
accommodation Taylor specifically requested was transfer
to another position, which Taylor later conceded was not
feasible. We do not think that it is fatal to Taylor's claim
that her son did not request a specific accommodation or

25
that Taylor's request in March of 1994 was for an
accommodation that she admitted was not possible. The
interactive process, as its name implies, requires the
employer to take some initiative. In Bultemeyer , the court
explained that: "If the note [from the psychiatrist requesting
accommodation] was too ambiguous and [the employer] did
not know what Bultemeyer wanted, [the employer] easily
could have called [the psychiatrist] for a clarification."
Bultemeyer, 100 F.3d at 1285. The interactive process
would have little meaning if it was interpreted to allow
employers, in the face of a request for accommodation,
simply to sit back passively, offer nothing, and then, in
post-termination litigation, try to knock down every specific
accommodation as too burdensome. That's not the
proactive process intended: it does not help avoid litigation
by bringing the parties to a negotiated settlement, 7 and it
unfairly exploits the employee's comparative lack of
information about what accommodations the employer
might allow. In addition, in some cases courts may be
better positioned to judge whether the employer met with
the employee in good faith than to judge how burdensome
a particular accommodation really is.

The ADA's regulations make clear that the purpose of the
interactive process is to determine the appropriate
accommodations: "This process should identify the precise
limitations resulting from the disability and the potential
reasonable accommodations that could overcome those
limitations." 29 C.F.R. S 1630.2(o)(3). Therefore, it would
make little sense to insist that the employee must have
_________________________________________________________________

7. In Deane we emphasized the value of the interactive process for
avoiding litigation: "we take this opportunity to observe that this
protracted (and very much ongoing) litigation would likely have been
unnecessary had the parties taken seriously the precepts announced in
our opinion in Mengine." Deane, 142 F.3d at 149 (citation omitted). We
would add that the interactive process can be thought of as a less
formal, less costly form of mediation. See 67 U.S.L.W. 2255 (noting the
value of mediated settlement in ADA cases). Mediated settlements, the
article explains, are cheaper than litigation, can help preserve
confidentiality, allow the employee to stay on the job, and avoid
monetary damages for an employer's initially hostile responses to
requests for accommodations. The interactive process achieves these
same goals even more effectively.

26
arrived at the end product of the interactive process before
the employer has a duty to participate in that process. The
EEOC's interpretive guidelines squarely place some of the
burden on the employer by stating that "the employer must
make a reasonable effort to determine the appropriate
accommodation." 29 C.F.R. Pt. 1630, App. S 1630.9 at 359.

As we explained in Mengine, the process must be
interactive because each party holds information the other
does not have or cannot easily obtain. We noted that
"employers will not always know what kind of work the
worker with the disability can do, and conversely, the
worker may not be aware of the range of available
employment opportunities, especially in a large company.
Thus, the interactive process may often lead to the
identification of a suitable position." Mengine, 114 F.3d at
420. More specifically, we explained that while an employee
who wants a transfer to another position ultimately has the
burden of showing that he or she can perform the essential
functions of an open position, the employee does not have
the burden of identifying open positions without the
employer's assistance. "In many cases, an employee will not
have the ability or resources to identify a vacant position
absent participation by the employer." Mengine, 114 F.3d
420.8 Taylor's concession that she knew of no other open
positions, therefore, should not necessarily be the end of
the matter if the school district made no effort to help
investigate.

When transfer is not sought, as was presumably the case
when Taylor's son first requested accommodations, the
employer likewise will often hold more information than the
employee about what adjustments are feasible in the
employee's current position. The Seventh Circuit pointed
out in Bultemeyer that: "When Bultemeyer worked at North
Side High School, a simple adjustment in his duties was
_________________________________________________________________

8. Our opinion in Gaul v. Lucent Technologies, Inc., 134 F.3d 576 (3d Cir.
1998) should be distinguished because there the employee's proposed
accommodation, a transfer whenever he decided he was stressed, was
unreasonable as a matter of law. If an employee insists on a single
accommodation that is unreasonable as a matter of law, then the
employee will be at fault for the breakdown in the interactive process.

27
enough of an accommodation to enable him to work there.
But this time, we do not know what might have happened,
because [the employer] was unwilling to engage in the
interactive process and accommodation him." Bultemeyer,
100 F.3d at 1285.

In short, an employer who has received proper notice
cannot escape its duty to engage in the interactive process
simply because the employee did not come forward with a
reasonable accommodation that would prevail in litigation.
Participation is the obligation of both parties, however, so
an employer cannot be faulted if after conferring with the
employee to find possible accommodations, the employee
then fails to supply information that the employer needs or
does not answer the employer's request for more detailed
proposals. And while a specific request may not always be
necessary to initiate the process, it certainly helps bolster
the employee's claim that the employer knew that the
employee wanted accommodations.

The interactive process does not dictate that any
particular concession must be made by the employer; nor
does the process remove the employee's burden of showing
that a particular accommodation rejected by the employer
would have made the employee qualified to perform the
job's essential functions. See Walton v. Mental Health
Association of Southeastern Pennsylvania, No. 97-2000,
1999 WL 86818, at *8 (3d Cir. Feb. 23, 1999). All the
interactive process requires is that employers make a good-
faith effort to seek accommodations.

Employers can show their good faith in a number of
ways, such as taking steps like the following: meet with the
employee who requests an accommodation, request
information about the condition and what limitations the
employee has, ask the employee what he or she specifically
wants, show some sign of having considered employee's
request, and offer and discuss available alternatives when
the request is too burdensome. These steps are consistent
with the recommendations in the EEOC's interpretive
guideline. See 29 C.F.R. Pt. 1630, App.S 1630.9 at 359-61.
We do not think this process is especially burdensome. As
we found in Mengine, the Postal Service engaged in good
faith in the interactive process when it exchanged a number

28
of letters with an employee in an effort to identify a vacant
position for reassignment and sent the employee multiple
job descriptions of vacant positions. Mengine, 114 F.3d at
421.9

The school district can be understood as arguing
implicitly that it did not have to participate in the
interactive process because there was no feasible
accommodation that would have made Taylor capable of
performing the essential functions of her job. In Mengine we
stated that "if reasonable accommodation is impossible,
nothing more than communication of this fact is required.
Nonetheless, if an employer fails to engage in the interactive
process, it may not discover a way in which the employee's
disability could have been reasonably accommodated,
thereby risking violation of the Rehabilitation Act." Mengine,
114 F.3d at 420-21. We explained that whether an
employer's duty to participate in the interactive process has
been discharged will often be a matter of "timing": i.e., the
employer will almost always have to participate in the
interactive process to some extent before it will be clear that
it is impossible to find an accommodation that would allow
the employee to perform the essential functions of a job.

Put differently, because employers have a duty to help
the disabled employee devise accommodations, an employer
who acts in bad faith in the interactive process will be liable
if the jury can reasonably conclude that the employee
would have been able to perform the job with
accommodations. In making that determination, the jury is
entitled to bear in mind that had the employer participated
in good faith, there may have been other, unmentioned
possible accommodations. On the other hand, as we
_________________________________________________________________

9. Employers may find it useful to take advantage of the Job
Accommodation Network although we do not in any way suggest that
employers are obliged to make use of this service. The EEOC compliance
manual explains that: "The Job Accommodation Network (JAN) provides
advice free-of-charge to employers and employees contemplating
reasonable accommodation. JAN is a service of the President's
Committee on Employment of People with Disabilities which, in turn, is
funded by the U.S. Department of Labor. JAN can be reached at 1-800-
ADA-WORK." EEOC Compliance Manual, Enforcement Guidance for
Psychiatric Disabilities, at 23, n. 56.

29
explained in Mengine, "[t]he ADA, as far as we are aware, is
not intended to punish employers for behaving callously if,
in fact, no accommodation for the employee's disability
could reasonably have been made." Mengine, 114 F.3d at
420 (quoting, Willis v. Conopco, Inc., 108 F.3d 282, 285
(11th Cir. 1997)).

When an employee has evidence that the employer did
not act in good faith in the interactive process, however, we
will not readily decide on summary judgment that
accommodation was not possible and the employer's bad
faith could have no effect. To assume that accommodation
would fail regardless of the employer's bad faith would
effectively eliminate the requirement that employers must
participate in the interactive process. An employer who
acted in bad faith would be in essentially the same, if not
better, position than one who participated; that is, both
employers would be arguing that the employee failed to find
an accommodation making him or her able to perform the
essential function of the job. The less the employer
participated, the easier this would become, and as a result,
the requirement that employers participate in the
interactive process would be toothless. Thus, where there is
a genuine dispute about whether the employer acted in
good faith, summary judgment will typically be precluded.
Cf. Hendrick-Robinson v. Excel Corp., 154 F.3d 685 (7th Cir.
1998)(Refusing to grant an employer summary judgment
because it may not have participated in good faith in
finding accommodations); Baert v. Euclid Beverage, Ltd.,
149 F.3d 626 (7th Cir. 1998)(Refusing to grant an employer
summary judgment because disputes of fact remained
about which party caused the breakdown in the interactive
process).10 When the disability involved is one that is
_________________________________________________________________

10. The Ninth Circuit has expressed disagreement with our decision in
Mengine and concluded that employers are not obliged to participate in
the interactive process. See Barnett v. U.S. Air, Inc., 157 F.3d 744, 753
(9th Cir. 1998). The majority in Barnett worried that an employer could
be held liable for failing to engage in the interactive process even
though
the employee was successfully accommodated. We believe that where an
employer has successfully made reasonable accommodations, a court
can conclude as a matter of law that the employer did not act in bad
faith. The Barnett majority also objected that it was not clear when an

30
heavily stigmatized in our society - as is true when the
employee is voluntarily or involuntarily committed to a
mental institution - courts should be especially wary on
summary judgment of underestimating how well an
employee might perform with accommodations or how
much the employer's bad faith may have hindered the
process of finding accommodations.

In Taylor's case we believe that there are genuine
disputes about the school district's good faith participation
in the interactive process, and assuming the school district
did act in bad faith, nothing the school district points to
demonstrates that it would be impossible to accommodate
Taylor. Prior to her hospitalization, Taylor performed her
job effectively for nearly two decades. But after becoming
disabled and seeking accommodations, she has presented
evidence that the school district made no response to her
request and instead increased the difficulty of her job.
Given the evidence Taylor presents of bad faith on the
school district's part, we will not decide on summary
judgment that it would have been fruitless for the school
district to make some modest and fairly obvious efforts to
accommodate.
_________________________________________________________________

employer would incur process liability. Bad faith can, of course, take
many different forms, just as negligence can, precluding easy statement
of a general rule about when bad faith has occurred. However, we believe
that jurors should be able to distinguish between stonewalling and
assisting an employee in finding accommodations. The fact that there
may be some hard cases is hardly unique in law. The Barnett majority's
last objection was that 29 C.F.R. S 1630(o)(3) only states that it "may be
necessary" for the employer to engage in an interactive process. But the
EEOC's interpretive guidelines state that once an employee requests
accommodations, the employer "must make a reasonable effort to
determine the appropriate accommodation." 29 C.F.R. Pt. 1630, App.
S 1630.9 at 359. The guidelines continue that in some instances the
interactive process may not be necessary because it is clear to both
parties involved what accommodation will work. For example, the
guidelines explain that an employee in a wheelchair may want her desk
elevated with blocks so that her wheelchair will slide under. No
interactive process will be needed here. Id. at 360. The regulation uses
the phrase "may be necessary," in other words, because sometimes the
necessary accommodation is obvious. We have also recognized that the
process is not necessary in cases where accommodation is impossible.

31
In particular, the school district could have increased
Taylor's job responsibilities more slowly, given more time to
introduce the computer, or communicated less by formal,
written reprimands. The EEOC compliance manual for
psychiatric disorders provides that some adjustments in
supervisory methods can qualify as legitimate
accommodations.11 The ADA itself specifically provides that
reasonable accommodations can include "job restructuring,
part-time or modified work schedules, reassignment to a
vacant position, acquisition or modification of equipment or
devices, appropriate adjustment or modifications of
examinations, training materials or policies, the provision of
qualified readers or interpreters, and other similar
accommodations for individuals with disabilities." 42 U.S.C.
S 12111(9)(B).

The fact that Taylor's potential accommodations are
modest should not encourage us to dismiss Taylor's claim
on summary judgment on the theory that they would be
useless; that would have the bizarre implication that the
more demanding a plaintiff's accommodations were, the
more likely the plaintiff is to survive summary judgment.
Plaintiffs who wish to participate in good faith in the
interactive process are more likely to have scaled back their
demands and asked for modest accommodations. More
importantly, we think it is worth remembering that
sometimes comparatively modest accommodations can reap
large returns in how well a disabled employee performs.
_________________________________________________________________

11. The EEOC compliance manual states that: "Supervisors play a
central role in achieving effective reasonable accommodations for their
employees. In some circumstances, supervisors may be able to adjust
their methods as a reasonable accommodation by, for example,
communicating assignments, instructions, or training by the medium
that is most effective for a particular individual (e.g., in writing, in
conversation, or by electronic mail)." 2 EEOC Compliance Manual,
Enforcement Guidance for Psychiatric Disabilities, at 26. However, the
manual continues that "[r]easonable accommodation... does not require
lowering standards or removing essential functions of the job." Id. at 26,
n. 62. We would hasten to add that a disabled employee is not entitled
to a supervisor ideally suited to his or her needs. We held in Gaul, for
instance, that an employee is not entitled to transfer whenever the
employee deems that his co-workers are causing him inordinate stress.
134 F.3d at 579.

32
We want to reiterate the limits of the interactive process.
We are not holding that an employer who has made a good
faith effort to accommodate must be saddled with a
secretary who consistently makes typos and fails to deliver
messages. Nor do we hold that an employer cannot
introduce a new computer system or switch an employee to
a less forgiving supervisor. What we do hold is that an
employer, having received adequate notice of an employee's
disability and desire for accommodations, cannot fail to
engage the employee in the interactive process offinding
accommodations, increase the disabled employee's job
responsibilities, and then simply document the employee's
failures.

To show that an employer failed to participate in the
interactive process, a disabled employee must demonstrate:
1) the employer knew about the employee's disability; 2) the
employee requested accommodations or assistance for his
or her disability; 3) the employer did not make a good faith
effort to assist the employee in seeking accommodations;
and 4) the employee could have been reasonably
accommodated but for the employer's lack of good faith.
Mengine, 114 F.3d at 420; Bultemeyer, 100 F.3d at 1285;
Taylor, 93 F.3d at 165.

We believe that a reasonable jury could conclude that
Taylor requested accommodations, that the school district
made no effort to help Taylor find accommodations and was
responsible for the breakdown in the process, and that
there were accommodations that the school district could
have provided that would have made Taylor able to perform
the essential functions of her job. If a jury concludes that
the school district was not responsible for the breakdown in
the interactive process, Taylor must demonstrate that a
specific, reasonable accommodation would have allowed her
to perform the essential functions of her job.

We have viewed the evidence in the light most favorable
to Taylor, as we must on summary judgment. The school
district is, of course, free on remand to argue that it did not
receive notice of Taylor's request for accommodation, that it
tried to assist Taylor in seeking accommodations, or,
assuming the school district was responsible for the
breakdown in the process, that no accommodation would

33
have allowed Taylor to perform the essential functions of
her job.12

IV

For the foregoing reasons, we will reverse the March 20,
1998 grant of summary judgment by the District Court and
remand the case for further proceedings.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit
_________________________________________________________________

12. The District Court treated Taylor's case as possibly raising a
disparate-treatment claim. Because Taylor represents on appeal that she
did not intend to raise such a claim, we need not reach the issue.

34