292 F.3d 356 | 3rd Cir. | 2002
ALITO, Circuit Judge:(cid:13) Howard Shapiro became disabled during the course of(cid:13) his employment with the Township of Lakewood(cid:13) ("Lakewood" or the "Township"). When he requested a(cid:13) "reasonable accommodation," Lakewood refused to transfer(cid:13) him unless he followed the standard procedure for(cid:13) interdepartmental transfers -- which apparently consisted(cid:13) of going to the municipal building and looking at(cid:13) announcements posted on a bulletin board. Shapiro(cid:13) subsequently filed this action, claiming, among other(cid:13) things, that Lakewood had violated his rights under the(cid:13) Americans with Disabilities Act ("ADA"), 42 U.S.C. S 12101(cid:13) et seq. Shapiro argued that by requesting a reasonable(cid:13) accommodation, he had initiated an "interactive process" in(cid:13) which Lakewood was required to engage. Although Shapiro(cid:13) identified several positions that were vacant during the(cid:13) period in question and that he could have filled, the District(cid:13) Court granted summary judgment for the Township(cid:13) because Shapiro had not formally applied for those(cid:13) positions. We hold that because Shapiro requested(cid:13) accommodation and because he identified positions into(cid:13) which he could have been transferred -- namely, positions(cid:13) as a police dispatcher -- summary judgment in favor of the(cid:13) Township was not proper. Accordingly, we reverse the(cid:13) District Court’s order granting Lakewood’s motion for(cid:13) 2(cid:13) summary judgment and remand the case for further(cid:13) proceedings.(cid:13) I.(cid:13) Howard Shapiro was employed by the Township of(cid:13) Lakewood for 15 years, first as a police dispatcher and later(cid:13) as an Emergency Medical Technician ("EMT"). On July 27,(cid:13) 1997, during the course of his employment as an EMT,(cid:13) Shapiro injured his back while lifting an elderly patient.(cid:13) Shapiro’s consultations with a physician revealed that he(cid:13) had a herniated disc at L5-S1 and a bulging disc at L4-L5.(cid:13) He continued to work on light duty in the Emergency(cid:13) Medical Services department ("EMS") until October 9, 1997,(cid:13) when he was placed on out-of-work workers’ compensation(cid:13) temporary disability for one month. Eventually, Shapiro(cid:13) was released from out-of-work status to "restrictive duty"(cid:13) with the limitation that he could not crawl, crouch, squat,(cid:13) or lift more than 25 pounds. He never resumed active duty(cid:13) as an EMT, however, and at the time of this litigation, he(cid:13) remained an unpaid employee of Lakewood on out-of-work(cid:13) status. As the result of successful claims for workers’(cid:13) compensation, Shapiro received medical and temporary(cid:13) benefits in the sums of $29,136 in December 1998 and(cid:13) $14,384 in November 1999.(cid:13) After becoming disabled, Shapiro made repeated requests(cid:13) for accommodations that would enable him to continue(cid:13) working for Lakewood either in a light duty capacity with(cid:13) EMS or in another position. Shapiro asserts that in August(cid:13) 1997 he informed his supervisor that he was disabled and(cid:13) sought "reasonable accommodation." On January 8, 1998,(cid:13) Shapiro’s counsel sent a letter to Lakewood’s Municipal(cid:13) Manager, Frank Edwards, demanding "reasonable(cid:13) accommodation." On April 30, 1999, Shapiro’s counsel(cid:13) again wrote to Edwards. This letter stated: "Please consider(cid:13) this a formal demand that Lakewood Township return Mr.(cid:13) Shapiro to work immediately and make reasonable(cid:13) accommodations for the prescribed limitations. In(cid:13) considering this, please be mindful that Mr. Shapiro is a(cid:13) very talented individual who is not only a licensed EMT, but(cid:13) also a licensed electrician and expansively computer(cid:13) competent." Letter to Frank Edwards, April 30, 1999, in(cid:13) 3(cid:13) App. III at A256. On March 13, 2000, Shapiro’s counsel(cid:13) wrote to Lakewood’s attorney, asking what types of training(cid:13) Shapiro should pursue for Lakewood to provide him with(cid:13) reasonable accommodation. In addition, Shapiro made(cid:13) three other inquiries by letter to Lakewood requesting(cid:13) information regarding available positions that would(cid:13) accommodate him. Lakewood either ignored Shapiro or told(cid:13) him that it could not give advice regarding what training he(cid:13) should pursue. On one occasion, Shapiro was advised to(cid:13) "go to Town Hall and fill out a job application." Distr. Ct.(cid:13) Memo. at 4, in App. I at A4. At no time did Lakewood(cid:13) contact Shapiro to discuss how it might accommodate him.(cid:13) Shapiro has identified the position of police dispatcher as(cid:13) a vacant one that he was qualified to perform. From the(cid:13) time that Shapiro first requested accommodation to the(cid:13) initiation of legal action, Lakewood hired at least five(cid:13) dispatchers. Lakewood’s "policy" regarding such an(cid:13) interdepartmental transfer to a non-competitive, vacant(cid:13) position is to post each opening on a bulletin board in the(cid:13) municipal building. Employees desiring a new position(cid:13) apply for a transfer by responding to the posting. Shapiro(cid:13) did not apply for a transfer to a vacant position. Lakewood(cid:13) claimed that, because Shapiro failed to follow Lakewood’s(cid:13) procedure regarding interdepartmental transfers to vacant(cid:13) positions, it was not obligated to transfer him to the(cid:13) position of police dispatcher or any other position in(cid:13) another department of the Township. Lakewood contends(cid:13) that accommodating Shapiro by means of a transfer would(cid:13) have required it to violate its "policy" of requiring interested(cid:13) employees specifically to request and interview for job(cid:13) transfers. Relying on our decision in Donahue v.(cid:13) Consolidated Rail Corp., 224 F.3d 226 (3d Cir. 2000), the(cid:13) District Court granted Lakewood’s motion for summary(cid:13) judgment on Shapiro’s ADA claim because he did not apply(cid:13) for a transfer.(cid:13) II.(cid:13) On appeal, Shapiro argues that the District Court’s grant(cid:13) of summary judgment for Lakewood should be reversed(cid:13) because Lakewood failed to engage in good faith in an(cid:13) "interactive process" designed to find a job into which he(cid:13) 4(cid:13) could have been transferred. This appeal therefore requires(cid:13) us once again to address the concept of the "interactive(cid:13) process" that we first mentioned in Mengine v. Runyon, 114(cid:13) F.3d 415 (3d Cir. 1997).(cid:13) The ADA itself does not refer to the "interactive process."(cid:13) The ADA provision upon which Shapiro’s claim is based(cid:13) requires an employer to "mak[e] reasonable(cid:13) accommodations to the known physical or mental(cid:13) limitations of an otherwise qualified individual with a(cid:13) disability who is an applicant or employee, unless[the(cid:13) employer] can demonstrate that the accommodation would(cid:13) impose an undue hardship on the operation of the business(cid:13) of [the employer.]" 42 U.S.C. S 12112(b)(5)(A). A regulation(cid:13) issued pursuant to the ADA, however, states that,"[t]o(cid:13) determine the appropriate reasonable accommodation it(cid:13) may be necessary for [the employer] to initiate an informal,(cid:13) interactive process with [the employee] in need of the(cid:13) accommodation. This process should identify the precise(cid:13) limitations resulting from the disability and potential(cid:13) reasonable accommodations that could overcome those(cid:13) limitations." 29 C.F.R. S 1630.2(o)(3).(cid:13) In Mengine, we endorsed the concept of the"interactive(cid:13) process" and explained:(cid:13) When the interactive process works well, it furthers the(cid:13) purposes of the Rehabilitation Act and the ADA. The(cid:13) employers will not always know what kind of work the(cid:13) worker with the disability can do, and conversely, the(cid:13) worker may not be aware of the range of available(cid:13) employment opportunities, especially in a large(cid:13) company. Thus, the interactive process may often lead(cid:13) to the identification of a suitable position. If it turns(cid:13) out there is no job which the worker (with or without(cid:13) accommodation) is capable of performing, then the(cid:13) company cannot be held liable for an ADA or(cid:13) Rehabilitation Act violation.(cid:13) 114 F.3d at 420. We observed that an employer that fails to(cid:13) engage in the "interactive process" runs a substantial risk:(cid:13) "if an employer fails to engage in the interactive process, it(cid:13) may not discover a way in which the employee’s disability(cid:13) could have been reasonably accommodated, thereby risking(cid:13) 5(cid:13) violation of the Rehabilitation Act." Id. at 420-21; see also(cid:13) Deane v. Pocono Medical Center, 142 F.3d 138, 149 (3d Cir.(cid:13) 1998) (en banc). Mengine also made it clear, however, that(cid:13) " ‘it falls to the employee to make at least a facial showing’(cid:13) that there were vacant, funded positions whose essential(cid:13) functions he was capable of performing." 114 F.3d at 419(cid:13) (quoting Shiring v. Runyon, 90 F.3d 827, 832 (3d Cir.(cid:13) 1996)). We added that: "Mengine must ‘demonstrate that(cid:13) there were vacant, funded positions whose essential duties(cid:13) he was capable of performing, with or without reasonable(cid:13) accommodation, and that these positions were at an(cid:13) equivalent level or position as [his former job].’ " Mengine,(cid:13) 114 F.3d at 418 (quoting Shiring, 90 F.3d at 832). We have(cid:13) elaborated on the "interactive process" in later cases. See,(cid:13) e.g., Jones v. United Parcel Service, 214 F.3d 402 (3d Cir.(cid:13) 2000); Taylor v. Phoenixville School District , 184 F.3d 296(cid:13) (3d Cir. 1999).(cid:13) In granting summary judgment for the Township, the(cid:13) District Court in the present case relied on one of these(cid:13) cases, Donahue v. Consolidated Rail Corp., 224 F.3d 226(cid:13) (3d Cir. 2000). There, we held that in a failure-to-transfer(cid:13) case, "the plaintiff bears the burden of demonstrating: (1)(cid:13) that there was a vacant, funded position; (2) that the(cid:13) position was at or below the level of the plaintiff’s former(cid:13) job; and (3) that the plaintiff was qualified to perform the(cid:13) essential duties of this job with reasonable(cid:13) accommodation." Id. at 230. We stated that "in a failure-to-(cid:13) transfer case, if, after a full opportunity for discovery, the(cid:13) summary judgment record is insufficient to establish the(cid:13) existence of an appropriate position into which the plaintiff(cid:13) could have been transferred, summary judgment must be(cid:13) granted in favor of the defendant -- even if it also appears(cid:13) that the defendant failed to engage in good faith in the(cid:13) interactive process." Id. at 234.1(cid:13) _________________________________________________________________(cid:13) 1. Other circuits have also held that the employee bears the burden of(cid:13) showing an accommodation is possible. See, e.g. , Jackan v. New York(cid:13) State Department of Labor, 205 F.3d 562, 567 (2d Cir. 2000) ("[A](cid:13) plaintiff seeking to hold the employer liable for failing to transfer her to(cid:13) a vacant position as a reasonable accommodation must demonstrate(cid:13) that there was a vacant position into which she might have been(cid:13) transferred."); Smith v. Midland Brake, Inc. , 180 F.3d 1154, 1174 (10th(cid:13) 6(cid:13) In the present case, the District Court held that in an(cid:13) ADA failure-to-transfer case, the employee with a disability(cid:13) must "identify a vacant, funded position for which he(cid:13) requested a transfer." Dist. Ct. Op. at 16 (emphasis added).(cid:13) In so holding, the District Court extended Donahue.(cid:13) Donahue did not hold or state that an employee in a failure-(cid:13) to-transfer case must always show that he or she formally(cid:13) applied for the position in question.(cid:13) The Township argues that excusing Shapiro from the(cid:13) obligation of submitting an application for a dispatcher(cid:13) position would violate its "policy" regarding transfers --(cid:13) which apparently consists of an unwritten practice under(cid:13) which vacancies for positions such as those at issue here(cid:13) are posted on a bulletin board, and employees desiring(cid:13) transfers must monitor those postings and apply for any(cid:13) positions that they seek.(cid:13) In US Airways, Inc. v. Barnett, 122 S. Ct. 1516 (2002),(cid:13) the Supreme Court considered the question whether an(cid:13) employer may be required by the ADA’s reasonable(cid:13) accommodation requirement to deviate from a disability-(cid:13) neutral rule. Rejecting the argument that such a rule(cid:13) always takes precedence over a request for reasonable(cid:13) accommodation, 122 S. Ct. at 1521, the Court expressed(cid:13) approval of lower court decisions holding that "a(cid:13) plaintiff/employee (to defeat a defendant/employer’s motion(cid:13) for summary judgement) need only show that an(cid:13) ‘accommodation’ seems reasonable on its face, i.e.,(cid:13) ordinarily or in the run of cases" and that "[o]nce the(cid:13) plaintiff has made this showing, the defendant/employer(cid:13) then must show special (typically case-specific)(cid:13) circumstances that demonstrate undue hardship in the(cid:13) particular circumstances." Id. at 1523. Applying this(cid:13) _________________________________________________________________(cid:13) Cir. 1999) (en banc) ("Even if Midland Brake failed to fulfill its interactive(cid:13) obligations to help secure a reassignment position, Smith will not be(cid:13) entitled to recovery unless he can also show that a reasonable(cid:13) accommodation was possible and would have led to a reassignment(cid:13) position."); Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997)(cid:13) ("[W]here a plaintiff cannot demonstrate‘reasonable accommodation,’ the(cid:13) employer’s lack of investigation into reasonable accommodation is(cid:13) unimportant.").(cid:13) 7(cid:13) framework to the situation in which the requested(cid:13) accommodation would violate a seniority system, the Court(cid:13) held that an "employer’s showing of violation of the rules of(cid:13) a seniority system is by itself ordinarily sufficient" to show(cid:13) that the requested accommodation is unreasonable, but(cid:13) that the employee "remains free to show that special(cid:13) circumstances warrant a finding that, despite the presence(cid:13) of a seniority system (which the ADA may not trump in the(cid:13) run of cases), the requested ‘accommodation’ is‘reasonable’(cid:13) on the particular facts." Id. at 1525.(cid:13) It therefore appears that the Court has prescribed the(cid:13) following two-step approach for cases in which a requested(cid:13) accommodation in the form of a job reassignment is(cid:13) claimed to violate a disability-neutral rule of the employer.(cid:13) The first step requires the employee to show that the(cid:13) accommodation is a type that is reasonable in the run of(cid:13) cases. The second step varies depending on the outcome of(cid:13) the first step. If the accommodation is shown to be a type(cid:13) of accommodation that is reasonable in the run of cases,(cid:13) the burden shifts to the employer to show that granting the(cid:13) accommodation would impose an undue hardship under(cid:13) the particular circumstances of the case. On the other(cid:13) hand, if the accommodation is not shown to be a type of(cid:13) accommodation that is reasonable in the run of cases, the(cid:13) employee can still prevail by showing that special(cid:13) circumstances warrant a finding that the accommodation is(cid:13) reasonable under the particular circumstances of the case.(cid:13) The District Court’s decision in this case -- entering(cid:13) summary judgment against Shapiro simply because he did(cid:13) not comply with Lakewood’s policy regarding transfer(cid:13) applications -- cannot be reconciled with Barnett and must(cid:13) therefore be reversed. On remand, the District Court should(cid:13) follow the approach prescribed by Barnett.(cid:13) III.(cid:13) For these reasons, we reverse the July 10, 2001, order of(cid:13) the District Court granting summary judgment for the(cid:13) Township of Lakewood and remand the case for further(cid:13) proceedings.(cid:13) 8(cid:13) A True Copy:(cid:13) Teste:(cid:13) Clerk of the United States Court of Appeals(cid:13) for the Third Circuit(cid:13) 9