Williams v. Phila Housing Auth

• Court: Court of Appeals for the Third Circuit
• Decided: August 26, 2004
• Docket: 03-1158
• Status: Published

Opinion

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Williams v. Phila Housing Auth Precedential or Non-Precedential: Precedential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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Recommended Citation "Williams v. Phila Housing Auth" (2004). 2004 Decisions. Paper 350. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/350

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. 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.