Reed v. Lepage Bakeries, Inc.

United States Court of Appeals
For the First Circuit

No. 00-1966

MANUELLA DIONISIO REED,

Plaintiff, Appellant,

v.

LEPAGE BAKERIES, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. D. Brock Hornby, Chief U.S. District Judge]

Before

Boudin, Stahl, and Lynch,
Circuit Judges.

John R. Lemieux for appellant.
Peter Bennett, with whom Frederick B. Finberg and The Bennett
Law Firm were on brief, for appellee.
Barbara L. Sloan, with whom C. Gregory Stewart, General
Counsel, Philip B. Sklover, Associate General Counsel, and Vincent J.
Blackwood, Assistant General Counsel, were on brief for Equal
Employment Opportunity Commission, amicus curiae.

April 5, 2001
 LYNCH, Circuit Judge. Manuella Reed was fired by

LePage Bakeries for insubordination and threatening her

supervisor. Reed says her conduct should be forgiven because

she is mentally ill, disabled within the meaning of the

Americans with Disabilities Act. She sues on the claim that her

termination resulted from LePage's failure to reasonably

accommodate her disability and hence was discriminatory. The

district court granted summary judgment against Reed. Reed

appeals, and the EEOC has filed an amicus brief on her behalf on

the issue of the allocation of burdens of proof in ADA

reasonable accommodation cases. We reject the position of the

EEOC on this issue, find that Reed neither adequately requested

nor was prevented from exercising the accommodation she now

claims, and affirm.

I.

In 1987, Reed was hired by LePage Bakeries, a large

commercial baking company, as an assembly line worker. Seven

years into her employment, Reed began receiving mental health

treatment. She was eventually diagnosed with bipolar disorder,

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a condition characterized by exaggerated mood swings and

agitated emotional states. She has been on medication ever

since. As a result of her disorder, Reed fares badly in

stressful situations, and when involved in a personal

confrontation, she is prone to lose her temper and become

verbally abusive.

The first time Reed had such an episode at work was in

March 1995. After a muffin-bagging machine broke down during

her shift and a mechanic was unable to fix it, Reed flew into a

profanity-infused rage, in which she angrily accused the

mechanic of being incompetent. Shaken by the incident, Reed

left work for the day, apparently with the permission of a

manager. She quickly became depressed and, after having

thoughts of suicide, had to be hospitalized for five days. On

her release, according to Reed, her therapist advised her to ask

her employer to accommodate her disability by allowing her to

walk away from stressful situations in order to avoid losing

control of herself.

After returning to work, Reed met with Mike Pelletier,

the plant manager, to discuss her poor attendance record. Reed

did not initiate a request for an accommodation at the meeting,

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but Pelletier on his own brought up Reed's altercation with the

mechanic as an aside, and told her that in the future she should

walk away from such situations before they became aggravated.

Reed agreed, mentioning that she had planned to propose the idea

herself, and offered to get a note from her therapist if

necessary. She was told it would not be. Pelletier then took

Reed to meet with her floor supervisor, Jerry Norton, about the

incident. Again, all agreed that Reed should walk away from any

such altercation in the future; in addition, Reed was told that

after walking away she should immediately get hold of either

Pelletier or Norton so that they might help settle the problem.

Reed cannot recall with certainty whether she used the

term "accommodation" during either of the meetings. Nor can she

unequivocally remember whether or to what extent she revealed

that she needed an accommodation due to her mental illness. But

she did mention during the first meeting that she had a

therapist, and LePage had on earlier occasions made adjustments

to Reed's work schedule upon receiving notes from her therapist

indicating that she was being seen for "depression." Although

Pelletier and Norton knew that Reed had left work for several

days after the altercation with the mechanic, they did not know

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much beyond that; they thought she had left due to a heart

condition or problems at home.

Reed did not have another stressful episode at work

until June 1, 1996 -- the incident resulting in her termination.

Having been on workers' compensation leave for a week after

sustaining a work-related injury to her arm, Reed met that day

with Norton and a human resources director, Cindi Callahan, to

discuss her return. The meeting was pursuant to standard

practice at LePage; its purpose was to determine the extent of

the duties Reed would be able to assume coming off of her

injury.

Upon entering the meeting, Reed stated that she wished

to discuss whether she could swap shifts with another employee

so that she could work in the mornings, when child care was

available to her. Callahan responded that they were meeting to

discuss Reed's injury-related work restrictions, not her

schedule. Reed insisted on discussing scheduling arrangements;

Callahan repeatedly tried to steer the conversation back to the

issue of restrictions; the situation grew heated. Despite

Norton's pleas that Reed calm down, Reed stood up, yelled "Fuck

this," and placed her hand on the door to leave.

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 At that point, Callahan told Reed that she would not

be able to begin working if she did not stay at the meeting and

discuss her work restrictions. Reed replied, "What are you

going to do, fire me?", to which Callahan answered no. Reed

then yelled "Fuck you" and flew into a rage. Standing on the

tips of her toes, Reed dared Callahan to fire her, telling her

that if she did, Reed would sue. Callahan felt threatened by

Reed's conduct.

Norton called human resources personnel to have Reed

escorted from the building, but before they arrived, Reed left

the room on her own volition. She then sought out Tony Nedik,

head of personnel, and attempted to account for her conduct.

She told Nedik that she had a mental illness that caused her to

lose control of herself, that she needed an accommodation for

it, and that she had tried to exercise such accommodation during

the meeting but Callahan had prevented her from doing so. Reed

asked if she could come back to work tomorrow; Nedik answered

no. Reed was fired the next workday for insubordinate and

threatening conduct.

Reed brought suit more than two years later, in

December 1998. She alleges that LePage discriminated against

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her in violation of the Americans with Disabilities Act, 42

U.S.C. § 12101 et seq., by failing to reasonably accommodate her

disability. The gist of her case is that she claims to have

requested and been granted a reasonable accommodation after her

March 1995 altercation with the mechanic; that accommodation,

she says, consisted in permission to walk away from stressful

confrontations at work, whether or not those confrontations were

with co-workers or supervisors. LePage discriminated against

her, Reed claims, by not allowing her to exercise that

accommodation at the June 1 meeting and by firing her for

attempting to do so.

LePage moved for summary judgment, arguing, inter alia,

that Reed was not disabled within the meaning of the ADA, that

she was never prevented from exercising any accommodation, and

that in any event the accommodation she claims to have been

prevented from exercising was unreasonable. The motion for

summary judgment was initially reviewed by a magistrate judge,

who recommended denying the motion as to these issues.

The district court, disagreeing with the magistrate as

to the reasonableness of the accommodation in question, granted

defendant's motion for summary judgment. The bulk of the

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district court's opinion focused on whether an ADA plaintiff

fully carries the burden of proving that her proposed

accommodation is reasonable and, if so, how to distinguish that

burden from the defendant's burden of proving that the

accommodation would impose an undue hardship. Noting that this

circuit has yet to rule definitively on the issue, the district

court held that the plaintiff must put on some evidence that her

proposed accommodation is reasonable, or at least plausible.

Applying this standard to the facts of the case, the court went

on to find that Reed had not put forward sufficient evidence

that it was reasonable to demand an accommodation permitting her

to walk away from supervisors when feeling stressed. The only

evidence Reed had put forward, the court found, was that Reed's

supervisors had advised her, as they commonly advised all

employees, to walk away from conflict situations; but such

evidence, in the court's view, went only toward showing the

reasonableness of being permitted to walk away from conflicts

with co-workers, not from conflicts with supervisors.

II.

We review the district court's order de novo, "consider[ing]

the facts in the light most favorable to the nonmoving party, drawing

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all reasonable inferences in that party's favor." Thomas v. Eastman

Kodak Co., 183 F.3d 38, 42 (1st Cir. 1999), cert. denied, 528 U.S. 1161

(2000).

Section 102(a) of the ADA states: "No covered entity shall

discriminate against a qualified individual with a disability because

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

employees . . . ." 42 U.S.C. § 12112(a). Discrimination is defined to

include "not making reasonable accommodations to the known physical or

mental limitations of an otherwise qualified individual with a

disability . . . , unless [the] covered entity can demonstrate that the

accommodation would impose an undue hardship on the operation of the

business of such covered entity." 42 U.S.C. § 12112(b)(5)(A).

For purposes of summary judgment we accept that Reed has put

forward sufficient evidence that she had a disability within the

meaning of the ADA.1 The case hinges instead on whether Reed was denied

a reasonable accommodation of her disability. The district court

entered summary judgment on the basis that Reed had not shown

her requested accommodation was reasonable. In so holding, the

court raised the question of the extent of plaintiff's burden of

1 Reed offered evidence that her bipolar disorder substantially
limited one or more of her "major life activities," see 42 U.S.C. §
12102(2)(A), in that it occasionally led to prolonged sleep loss, see
Criado v. IBM Corp., 145 F.3d at 442-43 (1st Cir. 1998) (sleeping as
major life activity).

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proof on the issue. The EEOC has filed with us an amicus brief

on this question, arguing that the district court effectively

shifted to the plaintiff the defendant's burden of proving

whether the requested accommodation would impose an undue

hardship. This court has not clearly distinguished between

plaintiff's and defendant's burdens in ADA reasonable

accommodation cases before.2 We take the opportunity to do so

here.

2 We came closest to speaking directly to this issue in
Feliciano v. Rhode Island, 160 F.3d 780 (1st Cir. 1998). There
we said that "[t]he plaintiff, as the party who must prove that
he or she can perform the essential functions of the position
with or without reasonable accommodation, bears the burden of
showing the existence of a reasonable accommodation." Id. at
786. We avoided addressing the extent of this burden in
Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 648 &
n.13 (1st Cir. 2000), and did not decide it in Ward v. Mass.
Health Research Inst., Inc., 209 F.3d 29 (1st Cir. 2000).
Reed misreads Ward in arguing that the case puts the burden
of showing whether plaintiff's requested accommodation is
reasonable on the employer. Ward did not, indeed it could not,
overrule our prior cases holding that such burden is on
plaintiff. Garcia-Ayala, 212 F.3d at 648; Feliciano, 160 F.3d
at 786. Ward is best understood as a case where the plaintiff’s
request for a flexible schedule was facially reasonable, thus
requiring the employer to show undue hardship, an issue on which
the employer has the burden. See id. at 36 ("Therefore,
[defendant] must submit some evidence in support of its position
that the requested accommodation would impose undue hardship.")

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A. Reasonable Accommodation vis-á-vis Undue Hardship

Under the ADA, the plaintiff bears the burden of proving that

the defendant could provide a reasonable accommodation for her

disability. At the same time, the statute places the burden on the

defendant to show that the proposed accommodation would impose an undue

hardship. See 42 U.S.C. § 12112(b)(5)(A). There is a well recognized

tension in the statute's allocation of burdens in this fashion. The

burdens might appear to be mirror images of one another: a "reasonable

accommodation," it might seem, is simply one that does not impose an

"undue hardship." But if this were so, the statute would effectively

impose identical burdens on both parties.

Other circuit courts have dealt with this tension using

linguistically different, but functionally similar, approaches. The

first approach shifts the burden of persuasion from plaintiff to

defendant, so that the burden of identifying a reasonable accommodation

is only one of production. Under this approach, plaintiff's burden

is not a heavy one. It is enough for the plaintiff to
suggest the existence of a plausible accommodation, the
costs of which, facially, do not clearly exceed its
benefits. Once the plaintiff has done this, she has made
out a prima facie showing that a reasonable accommodation is
available, and the risk of nonpersuasion falls on the
defendant."

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

(citation omitted). The Third Circuit has expressly utilized this test

in an ADA case, see Walton v. Mental Health Assoc., 168 F.3d 661, 670

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(3d Cir. 1999), and the Eighth and Tenth Circuits use a similar

approach, see Fjellestad v. Pizza Hut, 188 F.3d 944, 950 (8th Cir.

1999); Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir.

1995); White v. York Int'l Corp., 45 F.3d 357, 361 (10th Cir. 1995).

The other approach, which seems to have originated with the

D.C. Circuit in a Rehabilitation Act case, Barth v. Gelb, 2 F.3d 1180

(D.C. Cir. 1993), ostensibly keeps all burdens of proving reasonable

accommodation on the plaintiff. See id. at 1186 ("The burden [ ]

remains with the plaintiff to prove his case by a preponderance of the

evidence."). This approach is followed by the Fifth Circuit, see Riel

v. Elec. Data Sys. Corp., 99 F.3d 678, 682-83 (5th Cir. 1996); the

Sixth Circuit, see Hoskins v. Oakland Cty. Sheriff’s Dep't, 227 F.3d

719, 728 (6th Cir. 2000); Monette v. Electronic Data Sys. Corp., 90

F.3d 1173, 1183 & n.10, 1186 n.12 (6th Cir. 1996); the Seventh Circuit,

see Vande Zande v. Wisc. Dep't of Admin., 44 F.3d 538, 542-43 (7th Cir.

1995); and the Eleventh Circuit, see Willis v. Conopco, Inc., 108 F.3d

282, 285-86 (11th Cir. 1997) (also denying that "reasonable

accommodation" and "undue burden" are mirror images). Nonetheless,

under this approach, the plaintiff still need only make a general or

facial showing of reasonableness. See, e.g., Barth, 2 F.3d at 1187

(reasonable accommodation is "a method of accommodation that is

reasonable in the run of cases, whereas the undue hardship inquiry

focuses on the hardships imposed by the plaintiff's preferred

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accommodation in the context of the particular [employer's] operations"

(emphasis in original)), quoted in Willis, 108 F.3d at 286 n.2 and

Riel, 99 F.3d at 683; Vande Zande, 44 F.3d at 542 (in proving

reasonable accommodation plaintiff must make facial showing of

proportionality to costs, whereupon employer, in showing undue burden,

has opportunity to prove upon more careful consideration that costs are

excessive).

We are reluctant to talk about the problem of the

relationship between "reasonable accommodation" and "undue hardship" as

one of shifting burdens.3 We prefer to discuss the burdens of showing

reasonable accommodation and undue hardship as they are allocated in

the statute: the plaintiff fully bears the former, and the defendant

fully bears the latter. The real issue is the quantum of proof needed

3 The burden-shifting model was introduced into employment law
in order to allow indirect proof of the often elusive "intent" to
discriminate. See Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d
252, 264 (1st Cir. 1999). Thus, burden shifting allows a plaintiff to
make a small showing of discrimination, whereupon the employer must
articulate a non-discriminatory reason for its actions, and if that
reason proves to be untrue, then an inference of discrimination may be
warranted. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04
(1973); see also Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,
252-56 (1981). By contrast, whether a requested accommodation is
reasonable or whether it imposes an undue hardship are questions
typically proved through direct, objective evidence. Accordingly, we
have already held that the McDonnell Douglas model does not apply to
ADA discrimination claims based on failure to reasonably
accommodate. Higgins, 194 F.3d at 264. It would be confusing
to import such a model into a subpart of the analysis of such
claims.

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to show reasonable accommodation vis-á-vis the quantum of proof needed

to show undue hardship.

On this issue, we reject the position urged on us by

the EEOC. In contrast to the basic approach followed by our

sister circuits, the EEOC argues that the only burden a

plaintiff has on proving reasonable accommodation is to show

that the accommodation would effectively enable her to perform

her job; whether the accommodation would be too costly or

difficult, on the EEOC's view, is entirely for the defendant to

prove.4 We agree that proving an accommodation's effectiveness

is part of the plaintiff’s burden; but it is not the whole.

Indeed, simply in explaining how her proposal constitutes an

"accommodation," the plaintiff must show that it would

effectively enable her to perform her job. That is precisely

what an accommodation does. But what plaintiff must show

further under the statute is that her requested accommodation is

"reasonable." And consistent with its usage throughout the law,

the concept of reasonableness here constrains the plaintiff in

4 The EEOC position has not been adopted by any of the
circuits, although it was advocated in a concurring opinion in
Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000) (en
banc). See id. at 1122-23 (Gould, J., concurring).

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what she can demand from the defendant. A request that the

defendant relocate its operations to a warmer climate, for

example, is difficult to imagine as being "reasonable." A

reasonable request for an accommodation must in some way

consider the difficulty or expense imposed on the one doing the

accommodating. See Vande Zande, 44 F.3d at 542-43.

Thus, we believe the best way to distinguish between the two

burdens is to follow in essence the lead of our sister circuits: In

order to prove "reasonable accommodation," a plaintiff needs to show

not only that the proposed accommodation would enable her to perform

the essential functions of her job, but also that, at least on the face

of things, it is feasible for the employer under the circumstances.5

If plaintiff succeeds in carrying this burden, the defendant then has

the opportunity to show that the proposed accommodation is not as

feasible as it appears but rather that there are further costs to be

considered, certain devils in the details.

Under this arrangement, the difficulty of providing

plaintiff's proposed accommodation will often be relevant both to the

5 A plaintiff may sometimes be able to establish the
reasonableness of a proposed accommodation by showing it is a
method of accommodation that is feasible in the run of cases.
But this will not always be so. ADA cases come in an amazing
variety of hues and shapes, and some jobs are sui generis, so we
are reluctant to set hard and fast rules.

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reasonableness of the accommodation and to whether it imposes an undue

hardship. Cf. Vande Zande, 44 F.3d at 542-43. Plaintiff will often

need to take such difficulties into account in proving whether the

accommodation is facially practicable, and defendant will of course

need to provide evidence of them in attempting to prove undue hardship.

Indeed, where the costs of an accommodation are relatively obvious --

where they really are what they appear to be on the face of things --

plaintiff's burden and defendant's burden may in application be quite

similar, even to the extent of being mirror images. Where the burdens

will significantly differ is when the costs of an accommodation are not

evident on the face of things, but rather are better known to the

employer. Cf. Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1113 (9th

Cir. 2000) (finding employer's "superior knowledge" as to certain

matters relevant to determining extent of parties' burdens). For

example, an employee's proposal that her work area be modified might be

facially reasonable, but the employer may still show that, given

the particular limitations on its financial resources, or other

hidden costs, such accommodation imposes an undue hardship. See

42 U.S.C. § 12111(10)(B).

In the end, it is difficult to propound language as to the

content of the parties' burdens much more specific than the language of

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the statute.6 Consequently, in many cases the dividing line between

"reasonable accommodation" and "undue hardship" will be inexact -- but

benignly so. Given the inexactness of that dividing line, wise

counsel for both parties will err on the side of offering proof

beyond what their burdens require. The summary judgment

decisions of this court have often turned on the surprising

failure by one party or the other to proffer any significant

evidence in favor of their position. See, e.g., Garcia-Ayala,

212 F.3d at 649; Ward, 209 F.3d at 36-37.

B. Request for Accommodation

We next address whether Reed has met her burden of

proving that her requested accommodation was facially

reasonable. Ordinarily, this would involve an analysis of the

accommodation at issue, which, in this case, would be permission

to walk away from any stressful conflict, regardless of whether

it was with a co-worker or a supervisor. That analysis would

turn in part on the particular circumstances of the workplace.

Some of the more obvious and visible circumstances, such as the

general culture of the workplace, we might expect Reed to

6 Indeed, EEOC regulations do not offer a particularized
definition of the term "reasonable accommodation." They only give
examples. See 29 C.F.R. § 1630.2(o)(2).

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address as part of her burden. Other specifics that are more

within the control or knowledge of the employer, such as its

management strategy or its need to maintain a strict hierarchy,

might better belong in LePage's defense. Given the lack of such

particulars in the factual record developed here, it would be

difficult to say whether Reed's suggested accommodation is

facially reasonable.

We need not concern ourselves with the reasonableness

of Reed's accommodation, however, because Reed has failed to

prove another essential element of her burden: that she ever

sufficiently requested the accommodation in question. This is

the fatal flaw in Reed's case. She never adequately put LePage

on notice of her disability and need for accommodation.

Specifically, Reed never made LePage sufficiently aware that she

had a disability marked by occasional fits of rage and

consequently needed some sort of special accommodation.

Moreover, even had Reed made LePage so aware, and had she

subsequently been granted an accommodation permitting her to

walk away not only from conflicts with co-workers but also from

conflicts with supervisors, she was never prevented from

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invoking any such accommodation during her fateful meeting in

June of 1996. These grounds suffice to dispose of her case.

The ADA imposes liability on an employer for "not

making reasonable accommodations to the known physical or mental

limitations" of an employee. 42 U.S.C. § 12112(b)(5)(A)

(emphasis added). Because an employee’s disability and

concomitant need for accommodation are often not known to the

employer until the employee requests an accommodation, the ADA’s

reasonable accommodation requirement usually does not apply

unless "triggered by a request" from the employee. Henry

Perrett, Jr., 1 Americans With Disabilities Act Handbook, §

4.17, at 121 (3d ed. 1997) (collecting cases).7 The employee's

request must be "sufficiently direct and specific," giving

notice that she needs a "special accommodation." Wynne v. Tufts

Univ., 976 F.2d 791, 795 (1st Cir. 1992) (quoting Nathanson v.

7 Sometimes the employee’s disability may prevent the
employee from requesting an accommodation, or sometimes the
employee’s need for an accommodation will be obvious; and in
such cases, different rules may apply. See EEOC Enforcement
Guidance, infra, at 405:7629. In this case, though, there is no
suggestion in the record that Reed's mental illness hampered her
ability to request an accommodation. Her disability was
episodic, not continual, and she functioned normally most of the
time.

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Medical Coll. of Pa., 926 F.2d 1368, 1381 (3d Cir. 1991)). At

the least, the request must explain how the accommodation

requested is linked to some disability. The employer has no

duty to divine the need for a special accommodation where the

employee merely makes a mundane request for a change at the

workplace. See EEOC, Enforcement Guidance: Reasonable

Accommodation and Undue Hardship Under the Americans with

Disabilities Act, FEP (BNA) 405:7601, at 7605-06 (March 1, 1999)

(request for new office chair because current one is

"uncomfortable" does not provide sufficient notice that

accommodation is needed due to a disability), available at

http://www.eeoc.gov/docs/accommodation.html.8

Here, the record shows that, during her meetings with

Norton and Pelletier following her altercation with the mechanic

in March 1995, Reed gave scant indication that, due to a

disability, she needed some special sort of accommodation as to

conflicts at work, some permission to walk away from conflicts

beyond that ordinarily granted to employees. She did not, for

8 We note that we are not bound by EEOC guidance
documents. General Elec. Co. v. Gilbert, 429 U.S. 125, 141-42
(1976).

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example, explain to her supervisors that the altercation with

the mechanic was due to her having bipolar disorder, which can

lead to episodes of rage, and that as a result she needed a

special accommodation. Nor did she reveal that the altercation

had led her to be hospitalized for psychological trauma, which

likewise could suggest the need for a special accommodation.

Rather, all that happened was that her altercation with a co-

worker came up in a meeting about her attendance, and Pelletier

made the commonplace suggestion that in the future she walk away

from such situations before they got out of hand. Indeed, it

was such stock advice that Reed did not even have to "request"

it: Pelletier brought up the idea on his own; Reed merely

acquiesced in it.

Reed's attempt to dress up this advice as some sort of

special accommodation, allowing her to walk away even from

supervisors if their supervision became too stressful, ignores

the context in which the advice was given. It was given in the

aftermath of a fight Reed had had with a co-worker. Thus Norton

understood the advice given Reed to be that, "if she ever got in

a problem with a co-worker . . . , just leave . . . ; don't stay

there and have harsh words." It was the same advice he gave to

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all workers; its purpose was to prevent employees from getting

into fights on the floor. Pelletier understood the advice

similarly. Moreover, Reed was further advised that after

walking away from a conflict, she should find a supervisor to

help settle the matter -- again indicating that the sort of

conflicts being contemplated were ones between Reed and her

co-workers.

Taken in context, then, the only "accommodation" Reed

ever "requested" was simply that she be permitted to walk away

from conflicts with co-workers in order to go get a supervisor.

As the district court recognized, it is a vastly different

matter for an employee to be given permission to walk away from

a supervisor engaged in the act of supervision. Again, had Reed

revealed her mental illness and its consequences in any detail

to her supervisors, they might have been expected to construe

her self-perceived accommodation request differently. Reed

neglected to do so. The only hint she gave of any disability

was a vague reference to her therapist, who on earlier occasions

had sent notes to LePage indicating Reed was being seen for

depression. But Reed gave no notice of the aspect of her

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illness relevant to the accommodation she sought, namely, her

psychological inability to control rage.9

In any event, even were we to assume dubitante that

Reed adequately requested an accommodation allowing her to walk

away from conflicts with supervisors, Reed was never prevented

from exercising such accommodation during her June 1, 1996

meeting with Callahan. At the meeting, after Reed grew angry

with Callahan for refusing to discuss the possibility of a shift

change, and amidst Norton's pleas that she calm down, Reed was

not prevented from walking away. It is true that Callahan told

Reed that if she walked out she would not work that day; but the

record makes clear that all Callahan meant was that Reed could

not begin her shift (which was to start in a few minutes) until

finishing the return-to-work meeting. Even after Reed's initial

outburst, Callahan explicitly reassured Reed that she was not

threatening to fire her if she left. Nonetheless, Reed did not

excuse herself in order to cool off; instead, she stayed in

9 Reed's efforts to do so after the incident with
Callahan, in her discussions with Nedik, were too little, too
late. Cf. Wynne, 976 F.2d at 796 n.3.

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order to mount a belligerent, vituperative attack on Callahan,

leaving the supervisor feeling physically threatened.

At no time did Reed ever ask to leave the room to calm

down; at no time was such a request refused. Even had Reed

earlier been granted general permission to walk away from

conflicts with supervisors, such accommodation assumes that Reed

would take the initiative and walk away.10 Here she chose not to

do so. She stayed, with the ensuing consequences. Reed was

never stopped from walking away; nor was she fired for walking

away. She was fired for verbally abusing and threatening her

supervisor, when she could have avoided doing so. Thus, her

10 Putting the matter another way, any accommodation so
lenient as to excuse Reed for not taking the initiative to walk
away under the circumstances of her meeting with Callahan would
be unreasonable on the facts of this case. The same is true for
any accommodation that would consider Callahan's words to Reed
an obstacle to her taking such initiative.

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case on reasonable accommodation fails.11 The ADA is not a

license for insubordination at the workplace.

Affirmed. Costs to appellees.

11 Reed argues as well that LePage failed to engage in an
interactive process, which, according to EEOC regulations, "may
be necessary" in order to determine an appropriate accommodation
for an employee. 29 C.F.R. § 1630.2(o)(3); see also Jacques v.
Clean-Up Group, Inc., 96 F.3d 506, 515 (1st Cir. 1996). This
claim fails for the same reasons as articulated above: the
employer's duty to enter into an interactive process typically
must be triggered by a sufficient request for accommodation, as
with the employer's more general duty to accommodate. See EEOC
Guidance, supra, at 405:7605.
Reed also raises a claim that she was disciplined
differently than other employees. The record provides no
support for this contention.

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