Williams v. Phila Housing Auth

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit

8-26-2004

Williams v. Phila Housing Auth
Precedential or Non-Precedential: Precedential

Docket No. 03-1158

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 PRECEDENTIAL Alex H. Pierre (Argued)
1315 Walnut Street - Suite 210
Philadelphia, PA 19107-4705
IN THE UNITED STATES COURT Attorney for Appellant
OF APPEALS
FOR THE THIRD CIRCUIT Patrick J. Harvey
David E. Brier (Argued)
Ballard, Spahr, Andrews & Ingersoll
NO. 03-1158 1735 Market Street - 51st Floor
Philadelphia, PA 19103-7599
Attorneys for Appellee
EDWARD R. WILLIAMS;
ANGELYNNE WILLIAM S, H/W

v.
OPINION OF THE COURT
PHILADELPHIA HOUSING
AUTHORITY POLICE DEPARTMENT

Edward R.Williams,
Appellant STAPLETON, Circuit Judge:
The Americans with Disabilities
Act of 1990 (“ADA”), 42 U.S.C. § 12101
et seq., prohibits covered employers from
On Appeal From the United States
d i s c ri m i n at i n g a g a i n s t q u a l i f i e d
District Court
individuals on the basis of their
For the Eastern District of Pennsylvania
disabilities. Edward Raymond Williams
(D.C. Civil Action No. 00-cv-01709)
was unable to carry a firearm as the result
District Judge:
of a mental condition, and was additionally
Hon. Eduardo C. Robreno
perceived by his employer to be unable to
have access to firearms, or be around
others carrying firearms. Granting
Argued January 27, 2004
summary judgment in favor of the
Philadelphia Housing Authority (“PHA”),
BEFORE: NYGAARD, FUENTES and
Williams’s employer, the District Court
STAPLETON, Circuit Judges
held that such limitations would not make
Williams significantly restricted in the
(Opinion Filed: August 26, 2004)
major life activity of working because they
did not prevent him from performing work
in a broad range of jobs in various classes.
Because the District Court did not consider
whether such limitations would prevent postal, and having the means to do it.”
Williams from performing work in a class
Two days after the confrontation,
of jobs, and because a reasonable jury
PHA wrote to Williams and directed him
could conclude that Williams was actually
to report to the PHA radio room for duty.
(or perceived to be) precluded from
Williams did not return to work, but
working in a class of jobs, we will now
instead began to call in sick on a daily
reverse that grant of summary judgment
basis. On June 25, 1998, PHA ordered
a n d r e m a n d W i l l ia m s ’ s A D A
Williams to undergo a psychological
discrimination claim (and corresponding
examination with its psychologist, Dr.
claim under the Pennsylvania Human
Lauren Finley.
Relations Act) for further proceedings.
We will affirm the District Court’s The parties agree that, sometime in
determination with respect to Williams’s June or July 1998, Williams submitted an
retaliation claims because Williams has application for a medical leave of absence
not proffered sufficient evidence to from July 2, 1998 through August 28,
support a retaliation claim. 1998. The request included a “medical
certification form” completed by Helen
I. Factual and Procedural Background
Huffington, M.S.S., a counselor with
A. The Facts Viewed in the Light Most Delaware County Psychological Services,
Favorable to Williams who diagnosed Williams as suffering from
“Major Depression, recurrent, severe.”
Williams was hired by PHA as a
A198. PHA approved the request. On
police officer and worked for PHA for 24
July 29, 1998, PHA Assistant Chief Aaron
years until his termination. On May 19,
Hughes wrote to Williams regarding his
1998, shortly after arriving for an evening
employment status. Hughes wrote, “As of
shift, Williams received a page to report to
August 20, 1998, you will have exhausted
the sergeant’s office of PHA’s police
all of your sick leave and annual leave
department. After being confronted by a
benefits. Therefore, you will have to
superior officer about his fractious
request through memorandum a leave of
interactions with other employees,
absence. . . . [F]ailure to do so will mean
Williams yelled and made a number of
that you have voluntarily resigned as a
profane and threatening remarks.
member of this police department.” A197.
W i ll ia m s w a s im m ediate ly Williams would again be asked, on
suspended without pay. Later that September 22, 1998, to apply for a leave of
evening, he called a counselor with absence, and did so.
Delaware County Psychological Services,
On August 17, 1998, Williams’s
and remarked, “I understand why people
personal psychologist, Dr. Marjory Levitt,
go postal.” According to a PHA police
wrote a letter to Hughes regarding
officer who later spoke with the counselor,
Williams. The letter stated, in pertinent
Williams talked of “smoking people, going

2
part: that Sgt. Williams should
not resume active duty,
Sgt. Edward R.
involving his usual and
Williams, Sr., has requested
normal work activities,
that I write to you and report
unless he is under the proper
on his readiness to return to
care of me dic a l an d
full ti m e e m p lo ym ent
psychological personnel.
beginning August 20, 1998.
He requires psychological
Sgt. Williams states treatment for depression and
that he is fully prepared stress management. He also
p h y s i c a l l y a n d requires an evaluation by
psychologically to resume m e d i c a l p e r s o n n el to
his professional duties. He determine if he may be
assures me that he is further helped by
emotionally stable and able psychotropic medications.
to perform reliably and Sgt. Williams can resume
fulfill his responsibilities. working on alternate work
He is not taking any assignments and should do
psychotropic medications so for a minimum period of
and denies other substance 3 months in order to provide
use, with the exception of a an initial opportunity for
medication for hypertension. him to begin receiving
He has not been evaluated bene fits f r o m regu lar
by a psychiatrist, nor has he medicinal and/or
been in regular individual psychological treatment. He
outpatient treatment. He should be reevaluated after
does request that his contact this time in order to
with [the PHA superior determine whether or not he
officer Williams confronted can resume active duty with
on May 19, 1998] be as t h e conti n u a t i o n of
limited as possible. p r e s c r ib e d t r e a tm e n t
regiment for the
A199.
management of his stress
In August and September 1998, and depression.
Williams attended three appointments with
Sgt. Williams [sic]
Dr. Finley, PHA’s psychologist. On
condition appears to be
September 21, 1998, Dr. Finley shared her
exacerbated by considerable
evaluation of Williams’s fitness for duty:
tension between himself and
It is my professional opinion one of his superiors. . . . It

3
 could be helpful if pending a reevaluation.
t h e d i f f iculties
between them could
be mediated or if the A201.
amount of contact
On October 13, 1998, after Dr.
between the two was
Finley had cleared Williams for restricted
greatly reduced.
duty, Williams requested that PHA
A200. Upon receipt of the Finley letter, temporarily reassign him to work in the
PHA requested clarification of Dr. PHA training unit. Hughes responded:
Finley’s findings, to which Dr. Finley
[I]t is the position of this
responded on October 10, 1998:
police department that the
First, I have been called specific position that you are
upon by human resources to requesting is not open to
provide a con sultative you due to your on-going
evaluation for [Sergeant] treatment with Dr. Lauren
Edward Williams. I have Finley . . . and her
not nor will I be working recommendation that you
with [Sergeant] Williams on should not carry a weapon
an ongoing basis. Second, while still under her care for
Mr. Williams is fully the next several months.
capable of working, for a This department has also
temporary period, in either concluded that once you
an administrative and/or have completed all of your
clerical capacity. He should treatment with Dr. Finley,
n o t carry a w eapon , releasing you to return to
however, for a minimum full duty, with authorization
period of three months. He to carry firearms once again,
can work around other you are to report back to
officers who will be wearing uniform patrol duty.
their weapon. Third, it [is]
A204.
anticipated that [Sergeant]
Williams will be able to One day later, Williams wrote to
fully return to active duty, Hughes requesting an assignment “in the
resuming his usual job [PHA] radio room until [his] 3 month
responsibilities after this evaluation [was] over. . . .” PHA did not
approximate three month respond to that request until this litigation
period. However, a more
definite time frame cannot
be provided at this time,

4
ensued.1 evidence and apply for a
medical leave of absence.
On November 19, 1998, Deputy
This information and your
Chief of Police Ricks wrote an internal
formal written request
memorandum to Carl Marinelli, Assistant
should be received by my
General Manager for Human Resources,
o f f i c e n o l a t er t h an
regarding Williams’s employment status.
December 18, 1998. Failure
Wrote Ricks, “Williams has exhausted all
to do so will result in PHA
of his leave time and should apply for a
terminating your
medical leave of absence. If he does not
employment as of that date.
apply for a medical leave of absence by
November 30, 1998, it is the position of A206. Williams did not contact Marinelli
this department that Human Resources regarding an application for medical leave
terminate Edward Williams according to and did not respond to the letter.
PHA personnel policy regarding medical
On December 29, 1998, Marinelli
leave.” A863.
sent a letter to Williams notifying him that
On December 3, 1998, Marinelli he was being terminated.
wrote to Williams requesting that he file
In my letter to you
for medical leave.
dated December 3, 1998 I
As you know, you have asked that you request a
exhausted all leave time medical leave of absence
available as a police Officer and submit that request
with the P hiladelphia along with sup porti ng
Housing Authority. It is medical evidence to me no
now necessary that you later than December 18,
obtain the required medical 1998. As you have
submitted neither, I am
notifying you of your
1
The record is unclear as to whether t e rmina tio n f r o m t h e
PHA responded to this request, but we Philad elphia H ousing
assume for summary judgment purposes Authority effective August
that PHA did not respond to the radio 28, 1998. Please call . . . to
room request. In the context of this discuss your termination
litigation, an affidavit from a PHA Police benefits.
Department Administrator, John O’Brien,
A249.
indicated that “[i]nstead of placing Sgt.
Williams in the radio room, PHA offered B. Procedural Background
him a leave of absence that would have
Williams filed a complaint against
allowed him to return to work as a police
PHA in the United States District Court for
sergeant within 90 days.” A202.

5
the Eastern District of Pennsylvania III. The Retaliation Claim
asserting several causes of action. After
The ADA provides: “No person
the District Court ruled on PHA’s motion
shall discriminate against any individual
to dismiss and motion for judgment on the
because such individual has opposed any
pleadings, on ly c l ai m s assertin g
act or practice made unlawful by [the
discrimination under the ADA and
ADA] or because such individual made a
Pennsylvania Human Relations Act
charge . . . under [the ADA].” 42 U.S.C. §
(“PHRA”) remained. Ultimately, the
12203(a). “Thus, it is unlawful for an
District Court granted PHA’s motion for
employer to retaliate against an employee
summary judgment on those remaining
based upon the employee’s opposition to
claims. Williams timely moved for
anything that is unlawful under the ADA.”
reconsideration of that order. The District
Shellenberger v. Summit Bancorp, Inc.,
Court denied that motion, and Williams
318 F.3d 183, 188 (3d Cir. 2003).
filed a timely notice of appeal.
“[I]n order to establish a prima
II. Jurisdiction and Standard of Review
facie case of illegal retaliation under the
The District Court had federal anti-discrimination statutes, a plaintiff
question jurisdiction under 28 U.S.C. § must show: ‘(1) protected employee
1331 with respect to Williams’s ADA activity; (2) adverse action by the
claims, and supplemental jurisdiction over employer either after or contemporaneous
Williams’s PHRA claims under 28 U.S.C. with the employee’s protected activity; and
§ 1367. This Court has final order (3) a causal connection between the
jurisdiction under 28 U.S.C. § 1291 to employee’s protected activity and the
review the District Court’s denial of employer’s adverse action.’” Fogleman v.
reconsideration, which here ended the Mercy Hosp., Inc., 283 F.3d 561, 567-68
proceedings in that Court. See Sheehan v. (3d Cir. 2002) (quoting Krouse v. Am.
Beyer, 51 F.3d 1170, 1174 (3d Cir. 1995). Sterilizer Co., 126 F.3d 494, 500 (3d Cir.
1997)). Williams argues on appeal that
We review the District Court’s
PHA terminated him in retaliation for his
grant of summary judgment to PHA using
request for reassignment to PHA’s radio
the same standard that the District Court
room as a reasonable accommodation.2
applied. Omnipoint Comm. Enter., L.P. v.
Newton Township, 219 F.3d 240, 242 (3d
Cir. 2000). “Summary judgment is proper
2
if there is no genuine issue of material fact Unlike a claim for discrimination
and if, viewing the facts in the light most under the ADA, an ADA retaliation claim
favorable to the nonmoving party, the based upon an employee having requested
moving party is entitled to judgment as a an accommodation does not require that a
matter of law.” Carter v. McGrady, 292 plaintiff show that he or she is “disabled”
F.3d 152, 157 (3d Cir. 2002). within the meaning of the ADA. “The
right to request an accommodation in good

6
 Applying the McDonnell Douglas arguendo that Williams could make out a
framework,3 the District Court assumed prima facie showing of retaliation. The
Court then noted that PHA had put forth a
legitimate reason for terminating Williams:
faith is no less a guarantee under the ADA Williams had exhausted all available leave
than the right to file a complaint with the time to which he was entitled and failed to
EEOC, and we have already explained that request a leave of absence or otherwise
the ADA protects one who engages in the contact PHA in response to Carl
latter activity without regard to whether Marinelli’s December 3, 1998, letter.
t h e c o m p l a i n a n t i s ‘ d i s a b le d .’ ” Upon shifting the burden back to the
Shellenberger, 318 F.3d at 191. Thus, as
opposed to showing disability, a plaintiff
need only show that she had a reasonable,
good faith belief that she was entitled to opportunity to prove by a
request the reasonable accommodation she pr e ponder a n c e of th e
requested. See id. evidence that the legitimate
reasons offered by the
3
The burden-shifting framework of defendant were not its true
McDonnell Douglas Corp. v. Green, 411 reasons, but were a pretext
U.S. 792 (1973) applies to ADA retaliation for discrimination. See Tex.
claims. See Shaner v. Synthes, 204 F.3d Dep’t of Community Affairs
494, 500 (3d Cir. 2000). v. Burdine, 450 U.S. 248,
Briefly summarized, the 252-53, 101 S.Ct. 1089,
McDonnell Douglas 1093, 67 L.Ed.2d 207
analysis proceeds in three (1981) (citations omitted).
stages. First, the plaintiff Wh ile the burden of
must establish a prima facie production may shift, “[t]he
case of discrimination. If ultimate burden of
the plaintiff succeeds in persuading the trier of fact
establishing a prima facie that the defendant
case, the burden shifts to the intentionally discriminated
defendant “to articulate against the plaintiff remains
some legitimate, at all times with the
nondiscriminatory reason plaintiff.” Id. Our
f o r t h e e m p lo y e e ’s experience is that most
rejection.” [McDonnell cases turn on the third stage,
Douglas, 411 U.S. at 802, i.e., can the pla intiff
93 S.Ct. at 1824.] Finally, establish pretext.
should the defendant carry Id. at 500-01 (quoting Jones v. School
this burden, the plaintiff Dist. of Phila., 198 F.3d 403, 410 (3d Cir.
then must have an 1999)) (alterations in original).

7
plaintiff, the District Court found that he two days between the protected activity
presented “very little in the way of engaged in and the alleged retaliation
e v i d e n c e showing ‘weak n e s s e s, sufficed in Jalil v. Avdel Corp., 873 F.2d
i m p l a u s i b i l i ti e s , i n c o n s i s te n c i e s , 701, 708 (3d Cir.1989), to support an
incoherencies, or contradictions in the inference of a causal connection between
employer’s proffered legitimate reasons the two. Similarly, in Shellenberger,
for its action.’” Dist. Court Op. at 18 commen ts made by a supervisor
(quoting Fuentes v. Perskie, 32 F.3d 759, suggesting retaliation ten days before
765 (3d Cir. 1994)). In addition, the Court termination, along with other evidence of
held that the timing of W illiams’s retaliation, were sufficient to establish a
termination on December 29, 1998, prima facie showing of causation.
occurring over two months after the Shellenberger, 318 F.3d at 189.
request for an accommodation on October
Here, over two months elapsed
21, 1998, was not suggestive of a causal
between the time Williams requested a
connection between Williams’s request for
radio room assignment and the time that he
an accommodation and termination. The
was terminated. In cases like this one,
Court concluded that the summary
“where ‘the temporal proximity is not so
judgment record would not support a
close as to be unduly suggestive,’ we have
finding that PHA’s explanation for the
recognized that ‘timing plus other
termination was pretextual. W e agree.
evidence may be an appropriate test. . . .’”
In support of his retaliation claim, Thomas v. Town of Hammonton, 351 F.3d
Williams relies primarily on the temporal 108, 114 (3d Cir. 2003) (quoting Estate of
proximity between his October 21, 1998, Smith v. Marasco, 318 F.3d 497, 513 (3d
request for an accommodation and his Cir. 2003) (internal quotation marks
December 29, 1998, termination. We have omitted)). 4 Williams has, however, put
held in the ADA retaliation context that
“temporal proximity between the protected
4
activity and the termination [can be itself] Williams argues that the retaliatory
sufficient to establish a causal link.” action in this case occurred not on the date
Shellenberger, 318 F.3d at 183 (quoting that he was terminated, but on November
Woodson v. Scott Paper Co., 109 F.3d 19, 1998—the day an internal PHA memo
913, 920 (3d Cir.1997)) (internal quotation directed Marinelli to write to Williams and
marks omitted). However, “the timing of demand that he apply for medical leave or
the alleged retaliatory action must be be terminated. The memo indicated that
unusually suggestive of retaliatory motive “it is the position of this department that
before a causal link will be inferred.” Human Resources terminate Edward
Shellenberger, 318 F.3d at 189 n.9 Williams according to PHA personnel
(quoting Krouse, 126 F.3d at 503) (internal policy regarding medical leave” if
quotation marks omitted). For example, Williams “does not apply for a medical
leave of absence by November 30, 1998.”

8
forth no other evidence suggesting that dispute that, absent an application and
PHA terminated him because he requested s u p p o rt i n g m e d i c a l c er t if i c a ti o n,
a radio room assignment. M oreover, the termination was the only option available
evidence supporting PHA’s alternative to PHA under the relevant, consistently
explanation is quite compelling. As applied policy.
Williams acknowledges, PHA had granted
Because Williams has failed to
Williams medical leave on two prior
proffer any evidence of retaliation other
occasions, and there was no indication that
than the not unduly suggestive temporal
PHA would not have done so again had
relationship between his request for an
Williams simply contacted Marinelli, as
accommodation and his termination, we
the letter requested.5 Nor is there any
must agree with the District Court that “no
reasonable jury could conclude that the
A510. Even assuming arguendo that two events shared a causal link” for
November 19, 1998, were the date of purposes of an ADA retaliation claim.
retaliatory action in this case, our Dist. Court Op. at 22.
classification of this case as one “where IV. The Discrimination Claim
the temporal proximity is not so close as to
be unduly suggestive” would remain the Section 12112(a) of Title 42,
same. United States Code, provides that:

5 No covered entity shall
Williams hypothetically suggests in his
discriminate again st a
brief that, although he was aware of
qualified individual with a
PHA’s general policy on leaves of
disability because of the
absences and PHA’s ability to grant a
disability of such individual
leave of absence for any reason, “perhaps”
in regard to job application
Marinelli’s request in the December 3,
procedures, the hiring,
1998, letter to obtain the “required medical
advancement, or discharge
evidence” led him to believe that a leave
of employees, employee
of absence would now only be available to
compensation, job training,
him upon providing that evidence. He
and other terms, conditions,
then argues in his brief that, if he held such
and privileges of
a belief, he would have also thought that it
would be impossible to obtain such
evidence because he was capable of
working and PHA’s own expert had argument are not evidence to be
cleared him for restricted work. considered by this Court.” Versarge v.
There is, however, no record Township of Clinton N.J., 984 F.2d 1359,
support for such an argument. “[W]e have 1370 (3d Cir. 1993). Williams has not
repeatedly held that unsubstantiated cited to any record evidence indicating that
arguments made in briefs or at oral he held such a belief.

9
 employment. this context include refusing to make
reaso nable accommodations for a
Id.6 A “qualified individual with a
plaintiff’s disabilities. The ADA
disability” is defined by the ADA as a
specifically provides that an employer
person “with a disability who, with or
“discriminates” against a qualified
without reasonable accommodation, can
individual with a disability when the
perform the essential functions of the
employer does “‘not mak[e] reasonable
employment position that such individual
accommodations to the known physical or
holds or desires.” 42 U.S.C. § 12111(8).
mental limitations of the individual unless
To establish a prima facie case of the [employer] can demonstrate that the
discrimination under the ADA, a plaintiff accommodation would impose an undue
must therefore show “(1) he is a disabled hardship on the operation of the business
person within the meaning of the ADA; (2) of the [employer].’” Taylor, 184 F.3d at
he is otherwise qualified to perform the 306 (quoting 42 U.S.C. § 12112(b)(5)(A))
essential functions of the job, with or (alterations in original). “Reasonable
without reasonable accommodations by the accommodation” further “includes the
employer; and (3) he has suffered an employer’s reasonable efforts to assist the
otherwise adverse employment decision as employee and to communicate with the
a result of discrimination.” Taylor, 184 employee in good faith,” Mengine v.
F.3d at 306 (quoting Gaul v. Lucent Runyon, 114 F.3d 415, 416 (3d Cir. 1997),
Technologies, 134 F.3d 576, 580 (3d under what has been termed a duty to
Cir.1998) (citing Shiring v. Runyon, 90 engage in the “interactive process,” which
F.3d 827, 831 (3d Cir.1996))) (internal we will discuss in detail infra.
quotation marks omitted).
Williams alleges that PHA
Adverse employment decisions in discriminated against him by (1) failing to
p r o v i d e f o r t h e re a s o n a b le
accommodations that he requested and (2)
6
Williams has also brought his breaching its duty to engage in the
disability discrimination claim under the interactive process by not responding in
Pennsylvania Human Relations Act good faith to his requests for
(“PHRA”). An “analysis of an ADA claim accommodations. The District Court held,
applies equally to a PHRA claim.” Taylor inter alia, that Williams was not
v. Phoenixville School Dist., 184 F.3d 296, “disabled” within the meaning of the ADA
306 (3d Cir. 1999) (citing Kelly v. Drexel and therefore could not make a prima facie
Univ., 94 F.3d 102, 105 (3d Cir. 1996)). showing of disability discrimination. We
Accordingly, we will only discuss now review de novo whether Williams
Williams’s ADA claim because our made such a showing.
analysis of that claim is, under the
A. Disability
circumstances of this case, coterminous
with the PHRA claim.

10
 A “disability” is defined by the “substantially limited” in performing a
ADA as: “(A) a physical or mental major life activity if the individual is
impairment that substantially limits one or
(i) Unable to perform a
more of the major life activities of [an]
major life activity that the
individual; (B) a record of such an
average person in the
impairment; or (C) being regarded as
general population can
having such an impairment.” 42 U.S.C. §
perform; or (ii) Significantly
12102(2). Williams asserts that he met the
r e s t r ic t e d a s t o th e
criteria for disability under § 12102(2)(A)
c o n d i t io n , m a nne r o r
(“actual disability”) because he had “a
duration under which an
physical or mental impairment that
individual can perform a
substantially limits one or more of the
particular major life activity
major life activities,” in that his mental
as comp ared to th e
condition prevented him from carrying
condition, m ann er, o r
firearms. Williams further asserts that he
duration under which the
met the criteria for disability under §
average person in the
12102(2)(C) (“regarded as disabled”)
general population can
because his employer, PHA, wrongly
perceived him to be disabled when it
treated him as unable to work with, have
While there is some question as to the
access to, or be around others carrying,
level of deference EEOC regulations
firearms.
interpreting definitional terms of the ADA
i. Actual Disability are entitled to after the Supreme Court’s
decision in Sutton v. United Air Lines, Inc.,
With respect to determining
527 U.S. 471 (1999), neither of the parties
whether an individual is actually disabled
challenges the reasonableness of the
within the meaning of the ADA, EEOC
EEOC’s regulations with respect to the
Regulations 7 provide that an individual is
term “disability.” See Toyota Motor Mfg.,
Ky., Inc. v. Williams, 534 U.S. 184, 194
(2002) (“[N]o agency has been given
7
“Because the ADA does not define authority to issue regulations interpreting
many of the pertinent terms, we are guided the term ‘disability’ in the ADA.
by the Regulations issued by the Equal Nonetheless, the EEOC has done so. See
Employment Opportunity Commission 29 CFR §§ 1630.2(g)-(j) (2001). Because
(‘EEOC’) to implement Title I of the Act. both parties accept the EEOC regulations
See 42 U.S.C. § 12116 (requiring the as reasonable, we assume without deciding
EEOC to implement said Regulations); 29 that they are, and we have no occasion to
C.F.R. § 1630.2.” Deane v. Pocono decide what level of deference, if any, they
Medical Center, 142 F.3d 138, 143 n.4 (3d are due.”) (citing Sutton, 527 U.S. at 479-
Cir. 1998) (en banc) (citations omitted). 80).

11
 perform that same activity of working:
major life activity.
(A) The geographical area
29 C.F.R. § 1630.2(j)(1). Several factors to which the individual has
are to be considered in evaluating whether reasonable access;
an individual is substantially limited in a
(B) The job from which the
major life activity: “(i) The nature and
i n d i v id u a l h a s b e e n
severity of the impairment; (ii) The
disqualified because of an
duration or expected duration of the
impairment, and the number
impairment; and (iii) The permanent or
and types of jobs utilizing
long term impact, or the expected
similar training, knowledge,
permanent or long term impact of or
skills or abilities, within that
resulting from the impairment.” Id. §
geographical area, from
1630.2(j)(2).
which the individual is also
Williams contends that his inability disqualified because of the
to carry a firearm substantially limited him impairment (class of jobs);
in the major life activity of “working.” and/or
The EEOC regulations provide that, in
(C) The job from which the
determining whether an individual is
i n d i v id u a l h a s b e e n
restricted in the major life activity of
disqualified because of an
working,
impairment, and the number
[t]he term ‘substantially and types of other jobs not
limits’ means significantly utilizing similar training,
restricted in the ability to knowledge, skills or
perform either a class of abilities, within that
jobs or a broad range of jobs geographical area, from
in various classes as which the individual is also
compared to the average disqualified because of the
person having comparable impairment (broad range of
training, skills and abilities. jobs in various classes).
The inability to perform a
Id. §1630.2(j)(3)(ii).
single, particular job does
not constitute a substantial Summarizing these regulations, the
limitation in the major life Supreme Court has held that
activity of working.
[t]o be substantially limited
Id. § 1630.2(j)(3)(i). Several specific in the major life activity of
additional factors are to be considered in working, then, one must be
determining whether an individual is precluded from more than
substantially limited in the major life o n e t ype o f job , a

12
 specialized job, or a thereby not precluding him from
particular job of performing work in a broad range of jobs.
choice. If jobs
We agree with the District Court
utilizing an
that Williams’s testimony establishes that
individual’s skills
he was not precluded from a “broad range
(but perhaps not his
of jobs” within the meaning of 29 C.F.R. §
or her unique talents)
1630.2(j)(3)(ii)(C). Ho wever, the
are available, one is
r e gula tions prov ide th a t one is
not precluded from a
substantially limited in the major life
substantial class of
activity of working if one is significantly
jobs. Similarly, if a
restricted in one’s ability to perform
host of different
“either a class of jobs or a broad range of
types of jobs are
jobs.” 29 C.F.R. § 1630.2(j)(3)(i)
available, one is not
(emphasis added). It is clear from the
precluded from a
regulations that, even if one has the ability
broad range of jobs.
to perform a broad range of jobs, one is
Sutton, 527 U.S. at 493. The question of nevertheless disabled if one is significantly
whether an individual is substantially restricted in one’s ability to perform most
limited in a major life activity is a question of the jobs in one’s geographical area that
of fact. See Gagliardo v. Connaught Lab., utilize training, knowledge, skills and
Inc., 311 F.3d 565, 569 (3d Cir. 2002). abilities similar to the job one has been
disqualified from performing. The
The District Court, viewing
EEOC’s Technical Assistance Manual, for
Williams’s actual limitation (i.e., his
example, refers to the following scenario
inability to carry a firearm resulting from
as an example of being significantly
his severe depression) as one that
restricted in one’s ability to perform a
“temporarily limit[ed] the jobs that were
“class of jobs:”
available to [him] to those jobs that do not
require him to carry a firearm,” Dist. Court A computer programmer
Op. at 29, held that Williams was not develops a vision
precluded from performing a broad range impairment that does not
of jobs, and therefore was not disabled substantially limit her ability
within the meaning of the ADA. The to see, but because of poor
District Court noted that Williams had contrast is unable to
testified at a deposition that he could have distinguish print on
performed the duties of a bus driver, computer screens. Her
chauffeur, and tow truck operator, and impairment prevents her
could have worked for the public from working as a computer
transportation agency SEPTA, a rental car o p e r a tor , p ro g ra m m er ,
agency, or in the radio room at PHA, instructor, or systems

13
 analyst. She is assignment available in the PHA police
substantially limited department that did not require the use of
in working, because a firearm was work in the PHA radio
her im pairment room.” A202. Moreover, PHA has not
prevents her from challenged, for summary judgment
working in the class purposes, that Williams was incapable of
of jobs requiring use working in most law enforcement
of a computer. positions due to his inability to carry a gun.
Instead, PHA argues that (1) “law
Equal Employment Opportunity
enforcement” cannot constitute a “class”
Commission, A Technical Assistance
of jobs, and (2) Williams’s inability to
Manual on the Employment Provisions
work with firearms was, in fact, temporary
(Title I) of the Americans with Disabilities
and, accordingly, not a “significant
Act II-7 (Jan. 1992) (“Technical Assistance
restriction.”
Manual”).
PHA does not explain why law
The District Court did not address
enforcement positions are not a “class of
whether Williams was significantly
jobs” within the meaning of that phrase as
restricted in his ability to perform a class
used in the EEOC’s regulations, and our
of jobs because of his depression and the
reading of those regulations persuades us
resulting inability to carry a firearm. A
that the record would support a finding in
critical question was thus left unanswered:
favor of Williams on this issue. For
Compared to an average person living in
example, assuming the jury were
the same geographical region as Williams
convinced that Williams’s condition
with similar training, knowledge, skills,
substantially restricts his ability to perform
and abilities, was Williams substantially
law enforcement jobs, it seems to us that
restricted in his ability to perform jobs in
Williams would be no less limited in the
law enforcement? We conclude that the
major life activity of working than the
record would permit a reasonable jury to
computer programmer referenced by the
conclude that he was.
EEOC as being “substantially limited in
Williams contends that his inability working, because her impairment prevents
to carry a firearm precludes him from her from working in the class of jobs
serving in most law enforcement jobs requiring use of a computer.” Technical
w h e r e v e r l o c a te d a n d t h e re f o re Assistance Manual at II-7.
significantly restricts his ability to perform
We reject the PHA’s suggestion
that class of jobs. While the record has not
that Sutton teaches to the contrary. In
been fully developed on this issue, it does
Sutton, a group of myopic job applicants
su p p o r t t h a t co n t e nt io n . P HA
challenged an airline’s minimum vision
administrator John O’Brien testified in an
requirement for the job of “global airline
affidavit that “[a]s of 1998, the only job
pilot.” The Supreme Court noted that this

14
position, global airline pilot, was a “single appendicitis, and in fluen za, being
job” (and, in fact, was a position with one impairments of a temporary nature “with
single employer), and did not preclude the little or no long term or permanent
group from pursuing “a number of other impact,” cannot as a matter of law
positions utilizing petitioners’ skills, such substantially limit an individual in a major
as regional pilot and pilot instructor to life activity. See EEOC Interpretive
name a few, [that] are available to them.” Guidance, 29 C.F.R. Pt. 1630, App. §
Sutton, 527 U.S. at 493. The Court noted 1630.2(j). However, Williams does not
that under the Interpretative Guidance need to show that his disability is
provided by the EEOC, “an individual who permanent; instead, under the EEOC
cannot be a commercial airline pilot regulations, the “nature and severity” of
because of a minor vision impairment, but Williams’s impairment and its “duration or
who can be a commercial airline co-pilot expected duration,” along with the
or a pilot for a courier service, would not “permanent or long term impact” of that
be substantially limited in the major life impairment, are factors to be considered in
activity of working.” Id. determining whether an individual is
substantially limited in a major life
In Sutton, petitioners could not be
activity. 29 C.F.R. § 1630.2(j)(2).
one type of pilot working for one
Because an impairment and its impact may
particular employer, but could hold various
be less than permanent and still
other pilot jobs. Williams, on the other
“significantly restrict” a person’s ability to
hand, could not work in most law
perform a class of jobs, the current record
enforcement positions so long as his
precludes summary judgment based on this
condition persisted.
issue.
With respect to the expected
Williams’s medical record reflects
duration of Williams’s impairment, the
that he was professionally diagnosed with
record is not fully developed, but we
“Major Depressive Disorder” as early as
conclude that there is enough evidence to
December of 1996, and that he was under
permit resolution of the issue in Williams’s
continuing treatment for depression in the
favor. As a matter of law, a “transient,
fall of 1999, more than a year after his
nonpermanent condition,” McDonald v.
termination. Examining clinicians on both
Commonwealth, 62 F.3d 92, 94-97 (3d Cir.
sides agreed that, during the time in which
1995), or “a temporary, non-chronic
Williams first took leave from PHA in the
impairment of short duration,” Rinehimer
summer of 1998, Williams suffered from
v. Cemcolift, Inc., 292 F.3d 375, 380 (3d
depression that required treatment over at
Cir. 2002), it is true, fall short of
least an indefinite period of time. Dr.
substantially limiting an individual in a
Finley, PHA’s psychologist, concluded
major life activity. Accordingly, the
that Williams “require[d] psychological
EEOC has suggested, for example, that
treatment for depression and stress
broken limbs, sprained joints, concussions,

15
management,” A200, and indicated that his Moreover, given in this case the history of
condition was severe enough to prevent the disorder, the lack of such assurance,
him from carrying a firearm. Dr. Finley and the conclusions of Williams’s treating
did not express an opinion as to the
duration of Williams’s impairment, but
suggested that he might be “further helped
not resume active duty,
by psychotropic medications,” although
involving his usual and
further evaluation would be necessary to
normal work activities,
determine whether or not he could “resume
unless he is under the proper
active duty with the continuation of
care of me dic a l an d
p r e s c ri b e d t re a t m e n t .” A 200.
psychological personnel.
Reevaluation after a period of three
He requires psychological
months would be required to provide a
treatment for depression and
“more definite time frame” for his full
stress management. He also
return to active duty. A201. Helen
requires an evaluation by
Huffington, M.S.S., Williams’s treating
m e d ic a l p e rsonn el to
counselor at Delawa re C ounty
determine if he may be
Psychological Services, indicated that
further helped by
W i l l ia m s s u f f e r e d f r o m “ m a j o r
psychotropic medications.
depression,” and further concluded that his
Sgt. Williams can resume
condition was “recurrent [and] severe,”
working on alternate work
A198, thereby suggesting that Williams’s
assignments and should do
mental impairment was severe, would have
so for a minimum period of
a long-term impact, and was likely to
3 months in order to provide
persist. Williams’s personal psychologist,
an initial opportunity for
Dr. Levitt, reached the same conclusion as
him to begin receiving
Huffington, diagnosing Williams as
benefits f ro m regula r
suffering from recurrent and severe major
medicinal and/or
depression. A519.
psychological treatment. He
While Dr. Finley hoped that should be reevaluated after
treatment would improve Williams’s this time in order to
condition in the future, there was certainly determine whether or not he
no assurance that such would be the case.8 can resume active duty with
the continua tion of
p r e s c r i b e d t r e a tm e n t
8
As we have noted, Dr. Finley wrote, in regiment for the
part, as follows: management of his stress
and depression.
It is my professional opinion
that Sgt. Williams should A200 (emphasis added).

16
clinicians that his major depression was “A person is ‘regarded as’ having a
severe and recurrent, a reasonable jury disability” if the person:
could conclude that Williams’s problem
(1) Has a physical or mental
was not a temporary one, and would not be
impairment that does not
precluded from reaching a finding of
substantially limit major life
actual disability.
activities but is treated by
ii. “Regarded As” Disabled the covered entity as
constituting such limitation;
While Dr. Finley, PHA’s examining
clinician, indicated that Williams was only (2) Has a physical or mental
limited in his ability to carry a firearm, the impairment that
record is clear that PHA perceived substantially limits major
Williams as being unable to have access to life activities only as a result
firearms and to be around others carrying of the attitudes of others
firearms. As PHA Administrator O’Brien toward such impairment; or
has testified,
(3)Has [no such
[a]t all relevant times, PHA impairment] but is treated
assigned armed po lice by a covered entity as
officers to work in the PHA having a substantially
radio room. Anyone limiting impairment.
assigned to the radio room
Taylor v. Pathmark Stores, Inc., 177 F.3d
would have access to
180, 188 (3d Cir. 1999) (quoting 29 C.F.R.
firearms. . . . PHA did not
§ 1630.2(l)). Here, Williams argues that
assign Sergeant Williams to
PHA regarded him as having a limitation
he radio room . . . because. .
(i.e., the inability to have access to or be
. Sgt. Williams would have
access to firearms in the
radio room.
Williams’s actual disability, which we will
A202 (emphasis added). Williams argues
discuss infra with respect to whether
that PHA wrongly perceived him as having
Williams could have been accommodated.
these additional limitations, and thereby
If PHA’s perception was, in fact, accurate,
regarded him as being disabled.9
a jury could still determine that Williams
was disabled, but these additional
limitations (i.e., that he not have access to
9
In light of Dr. Finley’s conclusion that firearms or be around others carrying
Williams could be around others carrying firearms) might prevent him from being a
firearms, there is, of course, a factual issue qualified individual, in that there may have
to be determined as to whether PHA’s been no way to accommodate such an
perception was accurate and reflected individual at this employer police station.

17
around others carrying firearms) far temporarily disabled for “90 days,” even if
greater than the actual limitation (i.e., the his actual limitation was not temporary. In
inability to carry a firearm) that resulted support of that proposition, PHA first
from his mental impairment. 10 suggests that Dr. Finley’s reports would
require a jury to conclude that PHA
We determined previously that a
regarded Williams as disabled only for 90
trier of fact could find Williams to be
days. While PHA heavily relies upon Dr.
actually disabled based on the evidence
Finley’s reports as the basis for its view of
suggesting that Williams’s inability to
Williams’s impairments, Dr. Finley’s
carry a firearm significantly restricted his
reports, as we have noted, indicate that it
ability to perform law enforcement jobs.
was not possible to provide “a more
The additional limitations perceived by
definite time frame . . . at this time [as to
PHA, of course, only serve to further
when Williams could carry a firearm],
restrict the jobs Williams could perform in
pending a reevaluation.” A201. A
law enforcement. As Williams suggests,
reasonable juror could find that Dr.
an inability to have access to or be around
Finley’s reports, as relied upon by PHA,
others carrying firearms would prevent
establish that PHA viewed Williams as
him from serving in virtually all law
requiring ongoing treatment, and that PHA
enforcement positions. Williams has
did not believe that a return to full duty
therefore sufficiently demonstrated that a
was imminent.
trier of fact could determine that PHA
regarded him as being substantially limited PHA further looks to a memo from
in the major life activity of working Assistant Chief of Operations Aaron
because of its perception that he could not Hughes to Williams dated October 20,
hold any law enforcement position. 1998, in which Hughes indicated that
“once you [Williams] have completed all
PHA argues, however, that
of your treatment with Dr. Finley,
Williams’s “regarded as” disability claim
releasing you to return to full duty, with
must fail because it regarded him as
authorization to carry firearms once again,
you are to report back to uniform patrol
duty.” A 204 (the “Hughes
10
Williams’s position, that he was both mem orandum”). The Hughes
actually disabled and wrongly regarded as memorandum required W illiams to
d i s a b l e d , i s “ [n o t ] i n t r i n s i c a l l y complete “all” of his treatment with Dr.
contradictory, as he could have an Finley and receive her authorization to
impairment (whether or not it rose to the carry firearms before being allowed to
level of a disability) that could actually be return to “patrol duty.” That memorandum
accommodated, despite [his employer’s] was written ten days after Dr. Finley
perception that his disability was too informed PHA that she had not been asked
severe to accommodate.” Pathmark, 177 to treat Williams and would not “be
F.3d at 189.

18
working with [Sergeant] Williams on an We thus conclude that there is a
ongoing basis.” A160. Given that PHA material dispute of fact both as to whether
had been informed by Dr. Finley that no Williams was actually disabled in the
such treatment with her was planned, it is summer of 1998 and as to whether he was
difficult to see how a reasonable juror, regarded by PHA as being disabled.
reading the Hughes memorandum and its
B. Qualified Status
requirement that Williams receiv e
treatment from Dr. Finley, would have to The second element of Williams’s
conclude that PHA was determined to prima facie case of discrimination under
allow Williams to return to work in 90 the ADA requires him to show that he is a
days. Moreover, in light of the “qualified individual.” See Deane, 142
memorandum’s requirement that Williams F.3d at 145. As previously noted, a
receive medical clearance to carry firearms qualified individual is one “who, with or
before returning to PHA, a reasonable without reasonable accommodation, can
juror could determine that PHA perceived perform the essential functions of the
Williams’s impairment to be of an employment position that such individual
unknown and potentially unlimited holds or desires.” 42 U.S.C. § 12111(8).
determination.11 “[A] disabled employee may establish a
prima facie case under the ADA if s/he
shows that s/he can perform the essential
11 functions of the job with reasonable
PHA further relies upon an affidavit
accommodation and that the employer
submitted by PHA Administrator O’Brien
refused to make such an accommodation.”
indicating that PHA offered Williams a
Skerski v. Time Warner Cable Co., 257
“leave of absence that would have allowed
F.3d 273, 284 (3d Cir. 2001).
him to return to work as a police sergeant
within 90 days.” A202. This would Under the ADA, a “reasonable
apparently be the basis for PHA’s accommodation” includes “reassignment
argument that they perceived Williams as to a vacant position.” 42 U.S.C. §
able to return to work in 90 days. 12111(9)(B). However, the EEOC’s
However, the affidavit conflicts on its face commentary to its regulations provides that
with the Hughes memorandum, which reassignment “should be considered only
indicated that Williams would only be when accommo dati on w ithin th e
allowed to return to work upon completion individual’s current position would pose
of treatment w ith the employer’s an undue hardship.” EEOC Interpretive
psychologist–treatment that the employer’s Guidance, 29 C.F.R. Pt. 1630, App. §
psychologist never agreed to perform–and 1630.2(o). Neither party has suggested
upon receiving clearance from the that any accommodation within Williams’s
employer’s psychologist to carry firearms.
While a jury might believe O’Brien’s
testimony, the record certainly does not compel such a conclusion.

19
current position would have been possible PHA insists, however, that
in this case. Williams was not qualified to work in the
radio room because he was not only unable
Williams first asked to be
to carry a firearm, but was, in fact, also
reassigned to PHA’s training unit. PHA
unable to have access to firearms or be
responded to Williams: “the specific
around others who carried firearms.
position that you are requesting is not open
Concededly, a radio room assignment
to you due to your on-going treatment with
would have allowed Williams to have
Dr. Lauren Finley. . . and her
access to firearms or to be around others
recommendation that you should not carry
who carried firearms. This argument
a weapon while still under her care for the
cannot succeed at the summary judgment
next several months.” A204. Williams
stage, however, because PHA’s own
then responded by requesting a radio room
doctor’s report supports the view that
assignment. PHA did not directly respond
Williams’s condition did not preclude him
to this request until litigation.
from working with people who carried
It is Williams’s position that with weapons. Dr. Finley specifically
the benefit of an accommodation transfer concluded that Williams “can work around
he would have been able to perform the other officers who will be wearing their
essential functions of a member of the weapon.” A201. A reasonable jury could
radio room or the training unit. With thus conclude that Williams’s actual
respect to the radio room, both sides agree limitations left him qualified to do radio
that, absent his inability to carry a firearm, room work.12
Williams was qualified for that position.
To the extent Williams relies upon
Indeed, PHA assigned him to that position
a “regarded as” theory of disability, PHA
prior to receiving Dr. Finley’s report and
contends that a plaintiff in Williams’s
concluding that he could not be around
position must show that there were vacant,
others carrying, or have access to,
funded positions whose essential functions
firearms. Assuming a reasonable jury
concludes that Williams’s actual limitation
consisted of an inability to carry firearms, 12
Given PHA’s denial of Williams’s
there is nothing in the record to suggest
request for a transfer to the training unit
that Williams could not function in the
based solely on Dr. Finley’s report, a
radio room without carrying a firearm. In
reasonable jury could also conclude that,
any event, PHA has not challenged, for
absent the inability to carry a weapon,
summ ary judgment pu rposes, that
Williams was otherwise qualified to serve
Williams could have worked in the radio
in the training unit. Based on the extent of
room without carrying a firearm, and that
Williams’s service with the PHA, we
vacant, funded radio room positions were
believe a reasonable jury could infer that
available.
his service in the training unit would not
necessarily require carrying a firearm.

20
the employee was capable of performing in employee’s “regarded as” failure to
the eyes of the employer who misperceived accommodate claim would always fail,
the employee’s limitations.13 Even if a under PHA’s theory, because the employee
trier of fact concludes that PHA wrongly would never be able to demonstrate the
perceived Williams’s limitations to be so existence of any vacant, funded positions
severe as to prevent him from performing he or she was capable of performing in the
any law enforcement job, the “regarded eyes of the employer.
as” claim must, in PHA’s view, fail
Pathmark soundly rejects an
because Williams has been unable to
argument similar to that here made by
demonstrate the existence of a vacant,
PHA. There, an employer received a
funded position at PHA whose functions
medical report indicating that an employee
he was capable of performing in light of its
would have a significant “temporary”
misperception. Williams could not have
i m p a i r m e nt, and th e e m pl oye r
been a “qualified individual” under the
misperceived the report, indicating to the
ADA, PHA suggests, because there were
employee that it had “been advised your
no jobs at this employer police station he
restrictions are permanent,” id. at 184
could have performed given its
(emphasis added). Viewing the employee
misperception that he could not be around
as suffering from severe, permanent
others carrying, or have access to,
limitations as a result of what was in fact a
firearms. We reject this suggestion.
temporary impairment, the employer
“[O]ne of the points of ‘regarded supermarket concluded that the worker
as’ protection is that employers cannot “was unable to perform any Pathmark job,
misinterpret information abou t an even with accommodation,” id. at 188, and
employee’s limitations to conclude that the fired the worker.
employee is incapable of performing a
We agreed with the employee “that,
wide range [or class] of jobs.” Pathmark,
in general, an employer’s perception that
177 F.3d at 190. PHA’s argument, if
an employee cannot perform a wide range
accepted, would make “regarded as”
[or class] of jobs suffices to make out a
protection meaningless. An employer
‘regarded as’ claim.” Id. at 188. We held
could simply regard an employee as
that, with respect to the employee’s
incapable of performing any work, and an
“regarded as” claim, the employer would
be “liable if it wrongly regarded [the
13 employee] as so disabled that he could not
We assume for present purposes that
work and therefore denied him a job.” Id.
a jury determines that Williams’s actual
at 190. Anticipating PHA’s challenge
limitation was an inability to carry
here, we held that “[i]f an employer
firearms, and that PHA misperceived
believes that a perceived disability
Williams’s limitations when it concluded
i n h e r e n t l y p r e c l u d es s u c c e s s fu l
that he was unable to have access to, or be
performance of the essential functions of a
around others carrying, firearms.

21
job, with or without accommodation, the suggestion, a “regarded as” disabled
employer must be correct about the employee need not demonstrate during
affected employee’s ability to perform the litigation the availability of a position he
job in order to avoid liability.” Id. at or she was capable of performing in the
193. 14 Thus, contrary to PHA’s eyes of the misperceiving employer.
To meet his litigation burden with
respect to both his “actual” and “regarded
14
We also noted that “the law in this as” disability claims, Williams need only
circuit is that a ‘regarded as’ plaintiff can show
make out a case [even] if the employer is
(1) that there was a vacant,
innocently wrong about the extent of his or
funded position; (2) that the
her impairment,” id. at 191, meaning that
position was at or below the
there is no general “good faith” defense
level of the plaintiff’s
available to PHA to the extent it
former job; and (3) that the
misperceived Williams as having an
plaintiff was qualified to
impairment that substantially limits a
perform the essential duties
major life activity based upon myths, fears,
of this job with reasonable
or stereotypes associated with disabilities.
accommodation. If the
There is, however, a limited defense
employee meets his burden,
available to employers who engage in an
t h e e m p l o ye r m u st
“individualized determination of the
demonstrate that
employee’s actual condition” and develop
a misperception “based on the employee’s
unreasonable actions or omissions.” Id. at
193. Assuming a jury determines that sufficient to subject it to liability under the
PHA misperceived Williams as being ADA,” the “employer’s state of mind
unable to have access to, or be around [remains] relevant to the appropriate
others carrying, firearms, the existence of remedies.” Id. at 182-83 (citation
such a defense in this case would also be a omitted); see 42 U.S.C. 1981a(a)(3)
question for a jury, given that PHA (where “discriminatory practice involves
retained such a misperception despite t h e p r o v i s io n o f a r e a s o na b l e
clarification from Dr. Finley that Williams accommodation,” “damages may not be
could be around others carrying firearms awarded . . . where the covered entity
and a communication from Williams demonstrates good faith efforts, in
requesting a radio room assignment in consultation with [employee], to identify
light of his having been cleared for such an and make a reasonable accommodation”);
assignment by Dr. Finley. see also Deane, 142 F.3d at 148 n.12
Of course, while “an employer’s (“regarded as” plaintiff “might be entitled
innocent mistake (which may be a function to injunctive relief against future
of ‘goofs’ or miscommunications) is discrimination”).

22
 t r a n s f e r ri n g t h e C. Adverse Employment Action
e m p l o ye e w o u l d Resulting From Discrimination
cause unreasonable
As we have noted, a failure to make
hardship.
a reasonable accommodation for a disabled
Donahue v. Consol. Rail Corp., 224 F.3d and qualified employee constitutes
226, 230 (3d Cir. 2000). Williams alleges, discrimination under the ADA. Taylor,
and the record supports a finding, that a 184 F.3d at 306. Williams claims that
radio room assignment was available, that P H A f a i le d t o m a k e su c h a n
the position was at or below his level, and accommodation when it refused his
that he was qualified to perform the requests for assignment to the radio room
essential duties of that job with no further and the training unit. In addition to
accommodation. Thus, Williams has insisting that Williams was not disabled,
established that there is a material dispute PHA seems to suggest that it offered to
of fact as to whether he was a qualified reasonably accommodate Williams by
individual under the ADA.15 offering him an unpaid leave of absence
and future employment should he recover.
“[T]he question of whether a proposed
15
We are, of course, aware that “an accommodation is reasonable is a question
employer is not required to provide a of fact.” Buskirk, 307 F.3d at 170; see
reasonable accommodation if it . . . would also Skerski, 257 F.3d at 286; cf. Walton v.
pose a ‘direct threat’ to the safety of the Mental Health Ass’n of Southeastern Pa.,
employee or others, 29 C.F.R. § 168 F.3d 661, 671 (3d Cir. 1999) (“unpaid
1630.15(b)(2), see Chevron U.S.A. Inc. v. leave supplementing regular sick and
Echazabal, 536 U.S. 73, [78-79], 122 S.Ct. personal days might, under [some] facts,
2045, 2049, 153 L.Ed.2d 82 (2002).” represent a reasonable accommodation”).
Buskirk v. Apollo Metals, 307 F.3d 160, If a trier of fact concludes that Williams
168 (3d Cir. 2002); see also 29 C.F.R. § was disabled, however, it could also find
1630.2(r) (defining “direct threat”). PHA that the failure to continue Williams’ paid
has not argued, for summary judgment employment as a member of the radio or
purposes, that Williams was not entitled to training unit was a failure to reasonably
reasonable accommodation under the
“direct threat” exemption, and has instead
focused its efforts on whether Williams faced with an employee who truly poses a
was disabled and/or a qualified individual. “direct threat” to workplace safety. Here,
Having concluded that there is a of course, there is a triable issue of fact as
material dispute of fact as to whether to whether Williams posed such a “direct
Williams was disabled and a qualified threat,” given that PHA’s refusal to allow
individual, we mention the “direct threat” Williams to work around others with
exemption here only to make clear that the firearms was contrary to the conclusion of
ADA is not unsympathetic to employers its own clinician.

23
accommodate and accordingly constituted 29 C.F.R. § 1630.2(o)(3). Further,
an adverse employment action under the
The EEOC’s interpretive
ADA.
guidelines establish the
Additionally, we have repeatedly circumstances that trigger
held that an employer has a duty under the the employer’s duty to
ADA to engage in an “interactive process” engage in this interactive
of communication with an employee process: “Once a qualified
requesting an accommodation so that the individual with a disability
employer will be able to ascertain whether has requested provision of a
there is in fact a disability and, if so, the reasonable accommodation,
extent thereof, and thereafter be able to the employer must make a
a s s i s t i n i d e n ti f yi n g r e a s o n ab le reaso nable effort to
accommodations where appropriate. “The determine the appropriate
ADA itself does not refer to the interactive acco mm odatio n. The
process,” but does require employers to a ppr o priate rea s o n a b le
“make reasonable accommodations” under accommodation is best
some circumstances for qualifie d de te r mine d thro ugh a
individuals. Shapiro v. Township of flexible, interactive process
Lakewood, 292 F.3d 356, 359 (3d Cir. that involves both the
2002) (internal quotation marks and employer and the
alterations omitted). With respect to what [employee] with a
consists of a “reasonable accommodation,” disability.”
EEOC regulations indicate that,
Jones v. United Parcel Serv., 214 F.3d
[t]o determ ine the 402, 407 (3d Cir. 2000) (quoting 29 C.F.R.
a p propriate r e a s o nable Pt. 1630, App. § 1630.9).
accommodation it may be
Accordingly, we have held that both
necessary for the covered
employer and employee “have a duty to
entity to initiate an informal,
assist in the search for appropriate
interactive process with the
reasonable accommodation and to act in
qualified individual with a
good faith.” Mengine, 114 F.3d at 420
disability in need of the
(discussing the duty in the context of the
accommodation. This
Rehabilitation Act). An employee can
process should identify the
demonstrate that an employer breached its
precise limitations resulting
duty to provide re asonable
from the disability and
accommodations because it failed to
p o t e n t ia l r e a s o n a b l e
engage in good faith in the interactive
accommodations that could
process by showing that:
overcome those limitations.
1) the employer knew about

24
 t h e emp lo y e e’s conclude that PHA knew about his
disability; 2) the disa bility, that he reque sted
employee requested accommodation, that PHA’s quite limited
accommodations or response to his training unit assignment
assistance for his or request was not made in good faith, that
her disability; 3) the PHA’s offer of extended unpaid leave was
employer did not not a good faith response to his request for
make a good faith a radio room assignment, and that
effort to assist the Williams could have been reasonably
employee in seeking accommodated with a radio room or
a c c o m m o d a t i o n s; training unit assignment but for PHA’s
and 4) the employee lack of good faith. Thus, a material
could have been dispute of fact exists as to whether PHA
r e a s o n a b l y failed to engage in good faith in the
accommodated but interactive process, thereby failing to
for the employer’s reasonably accommodate Williams.16
lack of good faith.
Taylor, 184 F.3d at 319-20. However, in
16
addressing an employee’s claim that an Our admonition en banc in Deane that
employer failed to engage in the employers take seriously the interactive
interactive process, we have also made process rings true in this case. There, we
clear that a “plaintiff in a disability noted that a single phone call between an
discrimination case who claims that the employer and an employee “hardly
defendant engaged in discrimination by satisfies our standard that the employer
f a i l in g t o m a k e a r e a s o n ab l e make reasonable efforts to assist the
accommodation cannot recover without employee, to communicate with him in
showing that a reasonable accommodation good faith, and to not impede his
was possible.” Donahue, 224 F.3d at 234. investigation for employment.” Deane,
Thus, “‘because employers have a duty to 142 F.3d at 149. PHA’s initial response to
help the disabled employee devise Williams’s request for a training unit
accommodations, an employer who acts in assignment did little to meet its obligation
bad faith in the interactive process will be to interact in good faith. Compare A204
liable if the jury can reasonably conclude (“it is the position of this police
that the employee would have been able to department that the specific position that
perform the job with accommodations.’” you are requesting is not open to you due
Id. at 234-35 (quoting Taylor, 184 F.3d at to your on-going treatment with Dr.
317) (emphasis in original). Lauren Finley. . . and her recommendation
that you should not carry a weapon while
Under Taylor, Williams has
still under her care for the next several
demonstrated that a fact-finder could
months.”) with Taylor, 184 F.3d at 317

25
 V. “Regarded As” Employees and the that is one of first impression in this
Right to Reasonable Accommodation Circuit and has occasioned a circuit split
elsewhere. We assume for purposes of our
To the extent Williams relies upon
analysis that the trier of fact will find
a claim that PHA perceived his impairment
erroneous PHA’s perception that
to be greater than it was, PHA advances an
Williams’s depression prevented him from
additional argument. It insists that a
being around others carrying, or having
“regarded as” disabled employee is not
access to, guns.
entitled to accommodation under the ADA
and that, accordingly, Williams suffered Based on the statutory text and the
no adverse employment action other than legislative history of the ADA, the First
his termination.17 This presents an issue Circuit Court of Appeals has held that a
“regarded as” disabled employee is
entitled to be accommodated. Katz v. City
(“Employers can show their good faith in Metal Co., 87 F.3d 26, 33 (1st Cir. 1996).
a number of ways, such as taking steps like The better-reasoned district court decisions
the following: meet with the employee reach the same result. See Jacques v.
who requests an accommodation, request DiMarzio, Inc., 200 F. Supp. 2d 151, 163-
information about the condition and what 71 (E.D.N.Y. 2002); Jewell v. Reid’s
limitations the employee has, ask the Confectionary Co., 172 F. Supp. 2d 212,
employee what he or she specifically 218-19 (D. Me. 2001); see also Lorinz v.
wants, show some sign of having Turner Const. Co., 2004 WL 1196699, *8
considered employee’s request, and offer n.7 (E.D.N.Y. May 25, 2004) (endorsing
and discuss available alternatives when the Jacques); Miller v. Heritage Prod., Inc.,
request is too burdensome”). 2004 WL 1087370, *10 (S.D. Ind. Apr. 21,
PHA’s subsequent failure to 2004) (same). We also find Judge Block’s
respond to Williams’s request for a radio
room assignment further subjected it to the
risk that it overlooked an opportunity to nonetheless be required to remand this
accommodate a statutorily disabled matter for further proceedings based upon
employee. See Taylor, 184 F.3d at 317 the existence of a material dispute of fact
(“[A]n employer who fails to engage in the with respect to Williams’s actual
interactive process runs a serious risk that disability. If a jury finds Williams to have
it will erroneously overlook an opportunity been actually disabled because his
to accommodate a statutorily disabled depression deprived him of the ability to
employee, and thereby violate the ADA.”). carry a firearm, as we discuss supra note
14, liability could be imposed even though
17
Even if we were to agree with PHA P H A denied his requests for
that “regarded as” disabled individuals are accommodation based on its misperception
not entitled to reasonable accommodations regarding the extent of Williams’s
under the ADA, we note that we would impairment.

26
analysis in Jacques particularly persuasive, 917. In Kaplan, the Court of Appeals for
and will largely track his approach below. the Ninth Circuit, despite finding that “on
its face, the ADA’s definition of ‘qualified
As PHA stresses, however, there
individual with a disability’ does not
are two Courts of Appeals who have
differentiate between the three alternative
reasoned to a contrary conclusion, see
prongs of the ‘disability definition,’” 323
Kaplan v. City of North Las Vegas, 323
F.3d at 1232, adopted the rationale of
F.3d 1226, 1231-33 (9th Cir. 2003); Weber
Weber, again suggesting that a “formalistic
v. Strippit, Inc., 186 F.3d 907, 916-17 (8th
reading” of the ADA would lead to
Cir. 1999), and two have so concluded
“bizarre results.” Id. Specifically, Kaplan
without analysis, see Workman v. Frito-
endorsed the “windfall theory” suggested
Lay, Inc., 165 F.3d 460, 467 (6th Cir.
in a dictum by our Court: “it seems odd to
1999); Newberry v. East Texas State
give an impaired but not disabled person a
University, 161 F.3d 276, 280 (5th Cir.
windfall because of her employer’s
1998). 18 We find ourselves unpersuaded
erroneous perception of disability, when
by the reasoning of Weber and Kaplan.
other impaired but not disabled people are
Weber acknowledged that the not e ntitle d to accommodati o n .”
statutory text did not distinguish between Pathmark, 177 F.3d at 196 (citing Deane,
actually and “regarded as” disabled 142 F.3d at 149 n.12).
employees. It declined to apply the statute
While we do not rule out the
as written, however, because doing so, in
possibility that there may be situations in
its view, “would lead to bizarre results.”
w h i c h a p p l yi n g t h e re a s o n a b le
186 F.3d at 916. In so concluding, it
accommodation requirement in favor of a
declined to attribute to Congress an intent
“regarded as” disabled employee would
“to create a disparity among impaired but
produce “bizarre results,” we perceive no
non-disabled employees, denying most the
basis for an across-the-board refusal to
right to reasonable accommodations but
apply the ADA in accordance with the
granting to others, because of the
plain meaning of its text. Here, and in
employers’ misperceptions, a right to
what seem to us to be at least the vast
reasonable accommodations. . . .” Id. at
majority of cases, a literal reading of the
Act will not produce such results.
Accordingly, we will remain faithful to its
18
Three Circuit Courts, including our directive in this case.
own, have thus far considered but declined
A. The Plain Language of the ADA
to address the issue. See Cameron v.
Cmty. Aid For Retarded Children, Inc., As we have heretofore explained,
335 F.3d 60, 64 (2d Cir. 2003); Mack v. the ADA makes it unlawful for a covered
Great Dane Trailers, 308 F.3d 776, 783 employer to “discriminate against a
n.2 (7th Cir. 2002); Buskirk, 307 F.3d at qualified individual with a disability
168-69 & n.2.

27
because of the disability,” 42 U.S.C. § could nevertheless
12112(a), and “discrimination” in this substantially limit that
context includes, with an exception not person’s ability to work as a
here relevant, “not making reasonable result of the negative
accommodation to the . . . mental reactions of others to the
limitations of an otherwise qualified impairment.”
individual with a disability,” 42 U.S.C. §
The Court concluded
12112(b)(5)(A). The definition of
that, by including this test,
“disability” includes “being regarded as
“Congress acknowledged
having . . . an impairment” that
accumulated myths and
substantially limits a major life activity.
fears about disability and
42 U.S.C. § 12102(2)(C) (emphasis
diseases are as handicapping
added). Thus, as all would agree, the
a s a r e t h e p h ys i c al
statutory text of the ADA does not in any
limitations that flow from
way “distinguish between [actually]
actual impairment.”
disabled and ‘regarded as’ individuals in
requiring accommodation.” Pathmark, Thus, a person who
177 F.3d at 196. [suffers a n adve rse
employment action] because
B. The Legislative History
of the myths, fears and
Moreover, the legislative history of stereotypes associated with
the ADA confirms that Congress meant d i s a b il i t ie s w o u l d b e
what its text says. As Congress explained: covered under [the
“regarded a s” prong],
[The objective of the
whether or no t the
“regarded as” provision of
employer’s perception was
the ADA] was articulated by
shared by others in the field
the Supreme Court in
and whether or not the
School Board of Nassau
person’s physical or mental
County v. Arline. The Court
c o n d i t io n w o u l d b e
noted that although an
considered a disability under
individual may have an
the first or second part of
impairment that does not in
the definition.
fact substantially limit a
major life activity, the H.R. Rep. No. 101-485 (III), 1990
reaction of others may prove U.S .C.C.A.N. 445, 453 (footnotes
just as disabling. “Such an omitted). Thus, the ADA was written to
impairment mig ht n ot protect one who is “disabled” by virtue of
diminish a person’s physical being “regarded as” disabled in the same
or mental capabilities, but way as one who is “disabled” by virtue of

28
being “actually disabled,” because being no actual incapacity at all.’” Arline, 480
perceived as disabled “may prove just as U.S. at 279 (quoting Southeastern Cmty.
disabling.” This case demonstrates the Coll. v. Davis, 442 U.S. 397, 405-406 n.6
wisdom of that conclusion, in that but for (1979)) (alterations in original). The Court
PHA’s erroneous perception that Williams held that the teacher plaintiff, who had a
was unable to be around firearms because contagious but not substantially limiting
of his mental impairment, Williams would form of tuberculosis, fell into this
have been eligible for a radio room category. It found that employers had “an
assignment. affirmative obligation [u nder the
Rehabilitation Act] to make a reasonable
C. The Supreme Court’s Decision in
accommodation” for such an employee,
Arline
Arline, 480 U.S. at 289 n.19, and
In addition to the statutory text and remanded so that the District Court could
legislative history, the Supreme Court’s determine “whether the School Board
decision in School Board of Nassau could have reasonably accommodated
County v. Arline, 480 U.S. 273 (1987), her,” id. at 288-89.
also requires that “regarded as” employees
Given that the “regarded as”
be entitled to reasonable accommodations.
sections of both Acts play a virtually
Arline involved a claim based on the
identical role in the statutory scheme, and
Rehabilitation Act. The Court pointed out
the well-established rule that the ADA
that the Act’s definition of “handicapped
must be read “to grant at least as much
individual” had been amended to read as
protection as provided by . . . the
follows:
Rehabilitation Act,” Bragdon v. Abbott,
[A]ny person who (i) has a 524 U.S. 624, 632 (1998), the conclusion
ph ysical or men tal seems inescapable that “regarded as”
impairment which employees under the ADA are entitled to
substantially limits one or reasonable accommodation in the same
more of such person’s major way as are those who are actually disabled.
life activities, (ii) has a Of course, additionally, Congress
record of such an specifically endorsed the Arline approach
impairment, or (iii) is in crafting the “regarded as” prong of the
regarded as having such an ADA’s definition of “disability.” Neither
impairment. the Eighth Circuit’s decision in Weber nor
the Ninth Circuit’s decision in Kaplan
Arline, 480 U.S. at 279. The Court
address Arline.
explained that this expansion of the
definition was intended “to preclude D. The “Windfall” Proposition
discrimination against ‘[a] person who has
PHA, arguing the windfall theory to
a record of, or is regarded as having, an
our Court, suggests that Williams, by
impairment [but who] may at present have

29
being “regarded as” disabled by PHA,
receives a “windfall” accommodation
compared to a similarly situated employee
that the employee did not have or
who had not been “regarded as” disabled
limitations greater than the employee’s
and would not be entitled under the ADA
actual limitations, a simple reasonable
to any accommodation. The record in this
accommodation can be devised to allow
case demonstrates that, absent PHA’s
the employee to continue working even
erroneous perception that Williams could
given the employer’s misperception. In
not be around firearms because of his
such cases, it may be that the employer and
mental impairment, a radio room
employee never reach a meeting of the
assignment would have been made
minds, regardless of who was at fault for
available to him and others similarly
failing to do so, as to the employee’s
situated. PHA refused to provide that
actual limitations. Nonetheless, the
assignment solely based upon its erroneous
employee can still be reasonably
perception that W illiams’s mental
accommodated such that he or she can
impairment prevented him not only from
perform the essential functions of the
carrying a gun, but being around others
position even in light of the employer’s
with, or having access to, guns –
misperception. For example, an employer
perceptions specifically contradicted by
supermarket requires all of its cashiers to
PHA’s own psychologist. While a
stand. One cashier has a back problem
similarly situated employee who was not
that causes discomfort but does not
perceived to have this additional limitation
amount to an actual disability. The
would have been allowed a radio room
employer misperceives this back problem
assignment, Williams was specifically
as one that prevents the employee from
denied such an assignment because of the
standing for more than an hour, and fires
erroneous perception of his disability. The
the employee because she cannot stand.
employee whose limitations are perceived
Even if the supermarket and cashier never
accurately gets to work, while Williams is
reach a meeting of the minds as to the true
sent home unpaid. This is precisely the
extent of the cashier’s limitations, the
type of discrimination the “regarded as”
supermarket might, assuming its erroneous
prong literally protects from, as confirmed
perception amounted to a substantial
by the Supreme Court’s decision in Arline
limitation of a major life activity, be
and the legislative history of the ADA.
required to reasonably accommodate such
Accordingly, Williams, to the extent PHA
a “regarded as” disabled employee by, for
regarded him as disabled, was entitled to
example, providing a stool.
reasonable accommodation.19
In our case, it is true that PHA
perceived Williams’s limitations to be so
extensive that no simple solution, such as
19
In many cases where an employer a stool, would have allowed Williams to
regards an employee as having limitations keep working while their misperception

30
 VI. Conclusion summary judgment. 20
For the foregoing reasons, we will
reverse and remand the District Court’s
20
grant of summary judgment in favor of Williams also appeals the District
PHA with respect to Williams’s ADA and Court’s denial of partial summary
PHRA discrimination claims. We will judgment in his favor with respect to
affirm the District Court’s summary whether he is disabled, whether PHA
judgment determination with respect to breached its duty to engage in the
Williams’s retaliation claims and with interactive process, and whether PHA
respect to Williams’s cross-motion for failed to provide Williams with a
reasonable accommodation. Williams
argues, inter alia, that PHA “admitted” he
was disabled within the meaning of the
persisted. Thus, it was critical that PHA ADA by offering him the opportunity to
engage in good faith in the interactive take an unpaid leave of absence, thereby
process and determine the actual extent of “accommodating” him.
Williams’s limitations before simply We agree with the Sixth and Ninth
deeming him unable to work, contrary to Circuits, however, that an offer of
the opinion of their own psychologist. accommodation does not, by itself,
Instead, as we have indicated, PHA’s establish that an employer “regarded” an
response (or lack thereof) to Williams’s employee as disabled. See Thornton v.
disability has created a material dispute of McClatchy Newspapers, Inc., 261 F.3d
fact as to whether it failed to engage in 789, 798 (9th Cir. 2001) (“[W]hen an
good faith in the interactive process. employer takes steps to accommodate an
Assuming a jury determines that PHA’s employee’s restrictions, it is not thereby
perception was inaccurate and that it conceding that the employee is disabled
regarded Williams as disabled, it is PHA’s under the ADA or that it regards the
insistence on this erroneous perception and employee as disabled. A contrary rule
failure to discuss with Williams the true would discourage the amicable resolution
extent of his actual limitations that, as we of numerous employment disputes and
have explained, potentially amounts to a needlessly force parties into expensive and
failure to engage in the interactive process time-consuming litigation.”), clarified in
and, thereby, a failure to reasonably other respects, 292 F.3d 1045 (9th Cir.
accommodate. Accordingly, even where 2002); Plant v. Morton Int’l, Inc., 212 F.3d
an employer mistakenly regards an 929, 938 (6th Cir. 2000) (“The intent
employee as so disabled that the employee behind this [“regarded as”] provision,
cannot work at all, the employer still must according to the EEOC, is to reach those
accommodate a “regarded as” employee by cases in which ‘myths, fears and
seeking to determine, in good faith, the stereotypes’ affect the employer’s
extent of the employee’s actual limitations. treatment of an individual. [An employee]

31
cannot show that this provision applies to
him merely by pointing to that portion of
the record in which his [employer]
admitted that he was aware of [the
employee’s] medical restrictions and
modified [the employee’s] responsibilities
based on them.”).
Williams further argues that there is
no material dispute of fact with respect to
all of the preceding issues. However, as
we have indicated, there are factual
determinations to be made with respect to
each of these issues.

32