Zenaida Garc A-Ayala v. Lederle Parenterals, Inc.

GARCÍA-AYALA, Zenaida

Plaintiff, Appellant, PARENTERALS, INC.,

LEDERLE Defendants, al., Appellees.

et

No. 98-2291. Appeals, States Court of

United

First Circuit.

Heard Nov. 1999. May

Decided Sloan,

Barbara L. Grego- with whom C. Stewart, Counsel, ry Philip General B. Sklover, Counsel, Associate General Vin- Blackwood, cent J. Assistant General Counsel, Danis, B. Attorney, Jodi brief, were on Equal amicus curiae Employment Opportunity Commission. LYNCH, Before Judge, Circuit CAMPBELL, Judge, Senior Circuit O’TOOLE, Judge.* District LYNCH, Judge. Circuit Garcia-Ayala appeals Zenaida an order summary granting judgment for her for- Parenterals, mer employer, Lederle in a that alleges wrongful suit termination injunctive and demands relief and compen- satory punitive damages and under the with Americans Disabilities Act. See Gar- Parentals, cia-Ayala v. Lederle (D.P.R.1998). 312, 313 F.Supp.2d The dis- trict court held Garcia was not a “qualified individual” under the Act be- cause the accommodation she from her was not “reasonable.” See id. at 315. We reverse and direct entry plaintiff. for the I. parties stipulated to the following

facts. Garcia worked for Lederle Paren- terals, secretary Inc. as a from October 13, 1996, employ- 1983 to June when her ment recently, was terminated. Most she only was the clerical com- employee pany’s Department. Validation disability program Lederle’s benefits provides employee may that an receive up salary to fourteen continuous weeks of disability continuation and then short-term (STD) sixty at full percent benefits sala- ry. plan, employee Under the an could be Vergne Vargas, Carlos M. with whom twenty-six absent from work for a week Limeres, brief, Vergne & Duran was on weeks, period, work another two and then appellant. twenty-six be out for an additional weeks Belaval, disability. Graciela J. with whom Mar- for the em- During same her tinez, brief, Lederle, ployment & on used Odell Calabria was Garcia the sala- appellees. ry disability continuation short-term * Massachusetts, sitting by designation. Of the District of hours sick (eight occasions, treatment leave/fifteen separate fourteen on benefits disability). October days of short-term had Lederle leave. to her sick addition and one-half took eleven year when for one Garcia joba reserving policy ap- leave. sick out on STD. hours of been employees and terminated policy plied that bone hospitalized for reservation one-year after her employment 14, 1995. November on marrow treatment ended. period March until payments received STD She stricken has been García Since date, started she As of undergone sev- has cancer and (LTD). with breast disability long-term receiving chemotherapy. surgery eral rounds her to be not consider did Lederle September From March April LTD. on On once work for absent from she was 9, 1996, certified Lederle doctors radical mas- modified of a days as a result to work to return be able Garcia would she received During period, tectomy. 30,1996. July for fourteen benefits salary continuation 10, 1996, Re- Lederle’s Human On June disability for weeks, then short-term Director, Rodri- Margarita Aida sources un- September From the remainder. her at home and asked guez, called Garcia years Six work. was back at til 1993 she Garcia meet with her. to work to come to 1993, later, biopsy a revealed August in that her Rodriguez notified and complied breast, infiltrating of adenocarcinoma disability to have deemed her company result, and, aas Gar- persistent, type, duct 1995, one-year her that in March begun then days. 115 She for was cia absent in elapsed had job for reservation period work. returned to was 1996, employment and her March 1994, diag- was Garcia In December her be asked that Garcia terminated. breast, adenocarcinoma with nosed 30th, her doctors July until when reserved 1995, 17, un- she March On metastatic. work, no but to her to expected return nodule her surgery to remove derwent 13th, Garcia Lederle sent avail. June On up surgery, Garcia used neck. Before with her conversation confirming a letter work from and was absent her sick leave her for denying and Rodríguez a half hours. and eighty-eight for a total leave. additional received short- surgery, she Following out, although Garcia As it turned thirty-four con- for disability benefits term July until accommodation addi- May, she took an days. secutive 22, that Gar- 30th, August 1996 it was From June hours of leave. forty-six tional work, though her for cia’s doctors released 1995, salary 25, received through 9 she and of this notify Lederle they did not in relation to benefits continuation employment. re-apply for did not Garcia medical condition. job functions did essential saw Garcia’s surgery, her Garcia after Sometime tem- three different At go unfilled. least a bone marrow report on a television agencies by employees provided porary a treat- that offered transplant procedure dur- Garcia’s tasks Lederle performed was interviewed for cancer. She ment her her dis- medical after ing in- her leave and Garcia June 1995 by doctors 1996, 13, Indeed, from June to missal. July she needed Lederle formed 31, 1997, seven period of over January only which was procedure, undergo this dismissal, the com- from Garcia’s Au- months From Chicago hospital. available at employees. temporary 1995, pany chose use she was absent through gust never position was says her (for company The took which she chemotherapy due to There employee. permanent filled and short-term nineteen hours sick em- temporary no evidence that through was September disability). From any more Garcia than cost Lederle ployees absent due 27, 1995, again Co., (1st performance would have or that their Cir.1995), both in any way unsatisfactory. Lederle and Garcia have argued that dear-

error apply review should to the factual II. inferences made the district court since the decision below was based on stipulated May brought On suit facts and made on cross-motions sum- Lederle, against parent companies, its mary judgment.2 But Wightman see American Home Products Corp. and Springfield Co., Ry. Terminal Cynamid American and others for al- Cir.1996) (“Cross motions for leged violations of the ADA and Puerto summary judgment neither alter the basic 2, 1985, Act No. 44 July Rico P.R. Laws standard, Rule 56 nor grant warrant the 1, §§ tit. seq., Ann. 501 et as a result of the se.”). summary judgment per employment termination her following EEOC, appearing curiae, as amicus surgery for breast cancer. seeks She back urges review, de novo customary stan- (or pay, pay”), injunc- reinstatement “front dard for appellate review of summary discrimination, tive relief from future com- judgment. The district court opinion in pensatory punitive at- damages, and jury-claimed case does not discuss torney’s fees. On March whether there was a jury waiver of trial parties stipulation submitted a of material rights or a stipulation under Federal Rule together facts with a Motion Submitting 39(a)(1),3 of Civil Procedure or whether Stipulation of Uncontested Material Facts was resolving the matter jury-waived on a Legal September Controversies. On and a “case basis stated” or on convention- 28, 1998, granted the court Lederle’s al summary judgment; the order entered cross-motion summary judgment, de- was for summary judgment (although the summary nied motion for judg- opinion phrase once used the “The Court ment, declined to supplemental exercise its finds”). confusion, ofOut we think it jurisdiction over Garcia’s claim under Act wise to a few reiterate basics. 44, and dismissed the case. Garcia- See Ayala, 20 F.Supp.2d at 313.1 ap- For purposes of standard of peals. appellate in circumstances, review these usually there is a distinction between non-

III. jury circuit, and jury cases. This United aperworkers, P held that: There is some disagreement as to what and, at happened the trial court case, resultant nonjury [i]n when the basic ly, to the standard of dispute review to be parties between the concerns applied by this court on an appeal only from the factual inferences that one summary judgment entered might after cross- draw from the more basic facts Citing motions. Reich v. John Alden parties which agreed, have and Life Co., (1st 1, Cir.1997), Insurance 126 F.3d 6 party where sought neither has to intro- and United Paperworkers International duce additional factual evidence or asked Union, Local v. Paper witnesses, International present parties are, 14 1. The correct name lead legal of the defendant in merits of the controversies in this mat- Parenterals, case is this not "Lederle “Lederle Inc." and ter.” Parentals, Inc.,” district opinion captioned. court argument 3.At appeal, oral counsel for any Garcia disavowed intent not have a parties joint made “Motion Submit- jury may trial. But that have been state- ting Stipulation of Uncontested Material Facts damages, ment as to trial on once the district Controversies,” Legal and claimed liability, court ruled on and thus consistent being genuine controversy "[t]here no as to position with the in counsel’s brief on the matter, parties the material facts in this standard of same, review. stipulate the and submit the material adjudication facts to the Court for

644 directly judgment, submit- dispute proceeding to the

effect, submitting their ting judge the case to as stated.4 case stated. court as a determining When whether omitted) (em (internal marks Id. quotation path parties taken in non- added). the same phasis We have reached cases, inquire jury this circuit others Reich, cases. See non-jury result other parties and the into intentions Steamship v. Clerks 6; EEOC 126 at F.3d judge, court as evidenced district (1st 594, 1066, 48 F.3d Cir. Union 603 Paper United See appeal.5 record on Co. v. Puerto Grain 1995); Continental also, workers, 2; see n. 31-32 & Auth., F.2d Shipping Rico Maritime 972 Post, Washington v. e.g., Sherwood 871 (1st Cir.1992); Boston 426, n. 7 & 429-30 1144, (D.C.Cir.1989); 1147 n. 4 F.2d Wolfe Savings Secretary Bank v. Five Cents States, 1241, n. 2 v. United 1243 Dev., 768 Housing & Urban Dep’t grounds, 806 (9th Cir.), amended on other (1st Cir.1985); Federación 5, 11-12 F.2d (9th v. 1410, 1411 Cir.1986); Donovan F.2d De Del Tribunal Gen. Just Empleados De Marketing, DialAmerica F.2d 757 Cir.1984); Torres, 35, icia v. F.2d 747 36 (3d Cir.1985); v. EEOC 1376, 1381-82 Rico, Inc. v. Puerto Posadas de cf . College Maricopa County Community (1st Cir.1988) Radin, 399, F.2d 400-01 856 (9th Dist., 510, Cir.1984); F.2d 736 (same only moved for sum one side where Television Associated Re Satellite & cases, mary “[t]he In such judgment). sources, Inc. v. Continental Cablevision of review ... shifts appellate standard for (4th Va., Cir.1983); F.2d 354 714 review; clear-error from de novo review to Block, v. 708 n. 7 Wilson F.2d 745 infer is, court’s factual the district Gullet, (D.C.Cir.1983); Crow v. only they if are ences be set aside should (8th Cir.1983); Lac 856, 858 Courte n. 3 & Paperworkers, clearly erroneous.” United Voigt, Oreilles Band v. F.2d 349 64 F.3d at 31. Bergland, (7th Cir.1983); Toney v. makes rule from—and This evolved (D.C.Cir.1981) (per cu F.2d See cases. 10A sense in—bench trial v. riam); Nielsen Western Elec. Miller, & Wright, Alan Arthur R. (8th

Charles Cir.1979); Vetter F.2d Kane, Federal Practice Mary Kay Frosch, Cir. (1998) (refer § Procedure at 338-39 Manganese Corp. v. Merrill 1979); U.S. cases). Pierce, Smith, ring practice non-jury in Inc., to this Lynch, Fenner & 576 money on a expending (8th of time 153, 156 Cir.1978); Instead United States F.2d trial, Arnold, pre Inc., A. parties may decide that Fred 605, v. F.2d 573 606- necessary (9th Cir.1978) trial all curiam); record establishes United (per 07 v. grounds judge may enter a Consisting Articles Device upon which a States of of ... final all of “Diapulse”, Three Devices ruling on one or the issues 527 F.2d See, v. (6th Cir.1976); e.g., Allen United Mine Starsky v. dispute. 1008, 1011 America, (9th Williams, & Cir.1975); 1979 Plan 109, Workers F.2d 112 512 of Benefit Trust, (7th Cir.1984). (7th Tripp May, 352, 198, F.2d 353 189 F.2d 726 199-200 Cir.1951). generally See are, essence, They Edward Brun- skipping trial J. cases, require non-juiy problems "explicit of In arise for 5. Some waiver” these circuits appellate Music, Jostens, Inc., is unclear courts when the record trial. Inc. v. Acuff-Rose judge parties 140, Cir.1998); is what the and the trial (2d 155 F.3d 142-43 see also Consequently, a claim is meant to do. made when Broadcasting, Miller v. LeSea 87 F.3d de- appeal case below was on that the 224, 1996); (7th May 230 Cir. v. Evansville- stated,” appellate cided a "case courts in- as 1105, Corp., Vanderburgh Sch. 787 F.2d 1115— variably quite carefully proceed- at look 1986). (7th 16 Cir. ings in the trial court to make sure that parties foregone right "willingly their Music, Jostens, full trial.” Inc. v. Acuff-Rose 140, (2d Cir.1998). 155 F.3d 143

645 et, Redish, Reiter, 1998); Turner, & Martin H. Michael A. LaMarca v. 995 F.2d (11th Cir.1993); Summary Judgment: Federal Laxo Tray-Wrap, Inc. v. 8.01, (1994); § Co., Practice at 232-34 William Packing Six L’s 984 F.2d 67-68 Schwarzer, Hirsch, (2d Cir.1993); & W. Alan David J. Mondor v. U.S. Dist. Ct. for Barrans, Analysis and Decision Cal., the Cent. Dist. 910 F.2d Summary Judgment (9th Cir.1990). Motions 40-41 (1991). application But of these principles Jury trial cases are treated dif straightforward, this case is not and we court, ferently. nearly This like all other decide the issue of standard of review here courts, make has refused to the “case stat tinder two different doctrines: Federal inquiry parties ed” when one of the has 39(a)(1) Rule of Civil Procedure and waiv by jury. trial See United Pa er. We determine that agreed, perworkers, (specifying 64 F.3d at 31 pursuant 39(a)(1), to Rule that the issue's inquiry the case stated is limited to non- of liability presented purposes for the cases); jury see also v. Minnesota Winter summary cross-motions Co., Mutual Ins. 199 F.3d court, could be determined in light Life (7th Cir.1999) (same); Colan v. Mesa Pe stipulation parties of the filed that “the ... Co., troleum submit the material facts in this matter to Cir.1991) (same); Television, 714 Satellite adjudication Court for on the merits on (same); F.2d 189 F.2d at 200 Tripp, legal controversies in this matter.” (same); Airlines, TransWorld Inc. v. Further, plaintiff urged upon cf. has us a Exch., Inc., Coupon American clear error standard of Although review. (9th Cir.1990) (similar 676, 684-85 where at oral argument plaintiffs counsel said only one for summary judg side moved jury she did not intend to waive her trial ment); Superior Nunez v. Oil right, did not appeal brief this on issue (5th Cir.1978) F.2d (same).6 and so Aponte she is bound. Piazza v. See Thus, unsurprisingly, we have reviewed Cir.1990); Roque, 909 Fed. judgments based on cross-motions for 28(a). P. R.App. light wording summary judgment jury trial cases de stipulation, together with the fact that See, e.g., novo. Den Norske Bank v.AS Garcia, appeal, has said that is review Boston, First National Bank (and-not novo), for clear error de we treat (1st Cir.1996). 49, 53 this, present purposes, as an appeal 39(a)(1) from a after determination a Rule The distinction between bench and Consequently, consent. if proceed we jury trials is appropriate right since the parties submitted the case to the dis jury trial constitutionally protected stated, judge trict court and review of and casual are not presumed. waivers to be the determination of the district court is VII; See U.S. Const. amend. Fed.R.Civ.P. clear error. 38(d); Winter, 11; 199 F.3d at 407 n.

Indiana Lumbermens Mutual Ins. Co. v. IV. Timberland & Pallet Lumber 195 (8th 368, Cir.1999); Jennings F.3d 374 v. claims that Garcia Lederle violated (5th McCormick, 542, 154 F.3d 545 ADA company Cir. the when the fired her after summary 6. We summary judgment. note that cross-motions for motions for See South themselves, Indus., judgment, in and of do not consti- Westinghouse Forest Inc. v. Elec. west Winter, jury tute waiver of trial. See F.3d 1013, 199 (9th Cir.1970); Corp., 422 F.2d 1017-18 407-08; Miller, 230; at F.3d at 87 Market St. Norris, 881, (9th Gillespie v. 231 F.2d 883-84 Partnership Frey, Associates Ltd. v. F.2d 941 Work, 1956). Page Cir. 323, But v. 290 F.2d cf. 588, (7th Cir.1991); Louisiana, 590 John v. (9th Cir.1961) curiam) (per (upon 334 698, Cir.1985). F.2d 757 705 case, rehearing, reversing, jury in a trial earli only We have found two cases that have finding er the that case had been submitted applied clearly the erroneous standard of re record). jury view to trial cases decided on cross- 646 accommo- or without reasonable that with supplemen- leave additional requested

she able qualified a individual dation she was disability leave. Sec- to her sick and tal the functions of the essential 102(a) perform “No cov- ADA states: of the tion third, the dis- ... that job; a against discriminate shall entity ered disability.” of her disability charged her because with a be- individual qualified 437, 441 Corp., F.3d v. IBM 145 disability individual Criado of such cause ” (1st Cir.1998); Feliciano v. Rhode accord discharge employees.... ... regard to (1st Cir.1998); Island, 12112(a). 784 160 F.3d primary Lederle’s § 42 U.S.C. Corp., 150 Express that v. Federal judgment was Soto-Ocasio summary at defense (1st Cir.1998).9 parties The individual be- F.3d qualified a was not ele- of these three focus on the second sought she was the accommodation cause argue and Garcia ments. Both the EEOC offered no evi- Lederle not reasonable.7 erroneously shifted that district court ac- that argument or dence as to this factor. hardship. the burden an undue commodation is in- fact, appellate argument Lederle’s “qualified indi In order to be stipulation factual that with its consistent Act, is on the the burden vidual” under terminated because position was first, “pos she employee10 to show: that expired. had period of leave one-year her skill, experience, ed requisite ‘the sess[es] gave in company That the reason job-related require and other ucation to García.8 its letter of termination second, position, [that for the ments’ ADA apparent position company’s the essential func perform she able to is] obligation com- impose can never position with or without rea tions of beyond an accommodation pany grant Criado, 145 sonable accommodation.” own company’s under the the leave allowed (quoting 29 C.F.R. pre- under our flatly wrong policy 1630.2(m)); § also U.S.C. see See, Lucent Tech- e.g., Ralph v. cedent. 12111(8); Policy Mgmt. § v. Cleveland Inc., nologies, 795, 119 S.Ct. Sys. Corp., 526 U.S. Cir.1998). ig- court order The district (1999). There is no L.Ed.2d 966 stated in the record position nored the two question here as to the first these went to the issue company instead correctly stated prerequisites. The court the accommoda- of the reasonableness plaintiffs prove burden to [the] “it is tion. that, sought time she to resume her at the claim, ability job, ADA To establish an secretary to the Vali essential functions of prove by preponderance plaintiff must first, Garcia-Ayala, Department.” was disabled dation “that she the evidence: Act; second, F.Supp.2d ... at 314. But the statute also meaning within the point important that the ADAdoes more than argument ignores our case law 7. Lederle's imposes analysis prohibit disparate It also "[although qualification treatment. concept obligation provide could be understood to subsume reason- affirmative .an accommodation, we think it an- employees. of reasonable accommodation to disabled able topics sepa- Me., Inc., alytically to treat the two sounder v. See Soileau Guilford of rately.” Amego, EEOC (1st Cir.1997). (1st Cir.1997). Feliciano, plaintiff, we said that "[t]he 10.In Whitney, Citing Duckworth v. Pratt & party prove that he or she as the must who (1st Cir.1998), Lederle claims that 152 F.3d 1 perform can essential functions may granted no be to Garcia because relief position with or without reasonable accom As is evident she did not seek reinstatement. modation, showing the bears the burden of opinion, reading of that Duckworth from a reasonable accommodation.” existence of proposition. stand for that does not Feliciano, (citing at 786 Barnett 160 F.3d 744, Air, Cir. F.3d U.S. 157 argument was no intent 9. Lederle’s that there 1998)). disability misses the to discriminate based on

647 Criado, burden on the defendant places 443; the case.” 145 F.3d see show that an be an Kennedy Co., accommodation would also v. Dresser Rand 193 (2d Cir.1999). hardship. undue See 42 U.S.C. F.3d 122 It is simply 12112(b)(5)(A) case, § (stating the term not the under our precedent that an making employee’s “discriminate” includes “not rea- request for an extended medi- mean, sonable accommodations to the known cal necessarily leave will as the dis- physical or mental limitations of an other- trict court suggested, that the is qualified disability wise individual with a unable to the essential functions employee, who is an ... job. unless such cov- of her entity can ered demonstrate that the ac- First, the court did not focus on the commodation impose would an undue employer’s statement that the reason that

hardship operation of the business it terminated Garcia was because her med identity”); of such covered ical leave period, company under policy, expired. The court essentially The court also went on to say, “[o]f found course, requested that a an essential accommodation of an any job function ex (cita tension of a ability appear for leave on of a top work.” Id. medical leave omitted). of fifteen per tions The months was court then held that se unreasonable. . (until But request reasonable in may for additional leave accommodations 1996) “job clude July restructuring, part-time “was not reasonable under or mod schedules, ified work ... circumstances” because “defendants and other similar guarantee had no that the accommodations for individuals with dis additional leave 12111(9)(B). § abilities.”' 42 requested period was for a U.S.C. definite of time This court and ‘[n]othing in the text others have held that a of the reasonable medical leave of provision proposed accommodation absence—Garcia’s ac requires an em an commodation—is a ployer period to wait indefinite reasonable accommoda for tion accommodation under the Act in some to achieve its ef circumstances. intended ” Criado, 443-44; Hose, (quoting fect.’ Id. at 315 See 145 F.3d at Myers v. Nunes v. (4th Cir.1995)). Stores, Inc., Wal-Mart The (9th Cir.1999); Cehrs, that, although court also found 155 F.3d at 782 “some situ Criado); (citing might ations Haschmann v. Time unpaid leave of ab mandate accommodation,” Warner appropriate sence as an Entertainment (7th Cir.1998); reservation, job five-month “in Rascon v. U excess of S West Communications, policy[,] established placets] (10th Cir.1998). position.” an untenable business Gar cia-Ayala, F.Supp.2d at 315. The dis applied per Our concern that the court court, view, trict in our committed two se than an rules —rather individualized as- types of errors. heightened by sessment of the facts—is Here, other statements. the leave that A. Individualized Assessment 10 was June for less from the appears court’s than two months. The "district court statements that applying request it was se viewed the per being five rules, months, giving type and not of individual Rodriguez since had advised Gar- cia, June, assessment of the facts that the Act and albeit in one-year period that a requires. Supreme case law lapsed reservation had March. has Court deemed “essential” Even individual were for an additional if leave, ized disability unpaid attention to claims. See five months we see no Arline, 273, 287, 107 School Bd. v. adopt U.S. reason to a rule on these facts (1987). S.Ct. 94 L.Ed.2d 307 sought As we the additional medical leave would Criado, per said re “[w]hether [a] be se an unreasonable accommodation. quest termination, is reasonable on the facts of after her as well dur- turns Well

648 date August the 22nd or July 30th ther leave, filled Gar- Lederle medical ing her any release, imposed would have individuals with medical position secretarial cia’s em Lederle. Some Lederle on hardship agencies. specific temporary from hired disability, from of their nature apparent need ployees, no had business absolutely in-house as an with provide to replace to Garcia unable record are have suffered employment, not hire, would to their return and hence time for sured months several more re necessarily for a it waited make had not that but does v. Lucent Ralph return. until Garcia’s indefi date particular to a for leave quest 166, 171-72 F.3d 135 Technologies, on its must be scrutinized case nite. Each four- a Cir.1998), court held that (1st for unvarying requirement An facts. own accommodation, a beyond week additional need from the again departs definiteness for mental period week fifty-two See evaluation.12 factual individual for purpose for breakdown, reasonable was Criado, 599-600; Haschmann, The district injunction. preliminary a Rascon, 443-44; F.3d at 143 F.3d at 145 was employer that court’s statement 1333-34; v. Atlantic Kimbro Richfield position” business “untenable in an left Cir.1989) (inter (9th 869, F.2d 878-79 889 per use of of the the sense reinforces also statute). Of analogous state preting the facts of focus on the lack and se rules does not indefinite course, a leave that put case, that the given of this leaves Even short make it reasonable. not hardship.11 of undue on no evidence given in a em hardship undue may inflict situation, re may be there and ployment court viewed Similarly, open-ended or lengthy leaves so accommodation—addi requested quested Garcia’s for date accommodation specific an unreasonable time with to be tional leave held her be request any situation. return —as .that argued indefinitely. Lederle open give doctor could that since and Un- Accommodation B. Reasonable fit be would assurances she absolute Hardship due 30th, request July to work on return to that the parties The so and an indefinite leave per se liability on the issue of court determine how specified, was unreasonable. it. facts While of the before basis return, her doc ever, would when showing accommoda reasonable burden of weeks return several her for tor released this is case plaintiff,13 on the that ei- tion is is no evidence There thereafter. Here, ADA.”). to a violation amounts alternatively, the statement Perhaps, informal, inter- engage in the to Lederle failed only hyperbole. rejected simply process. It active dis- without further the accommodation urged by Lederle approach 12. any pointing to it did so without cussion and pro duty ignores to "[t]he court also district making harmful the accommodation facts is a continu accommodation vide reasonable needs. its business one effort." by Inc., exhausted ing ... and not one Technologies, Ralph v. Lucent of, join, no see reason Cir.1998). aware but 166, (1st interac 13.We are anis 171-72 relationship debate in the circuits deal of "requires great process tive hardship concepts of undue two between the employee and between communication Compare (internal accommodation. Criado, and reasonable at 444 employer." Dist., F.3d 63 omitted); Valley Sch. v. Cent. Borkowski see citation quotation marks and 131, (2d Cir.1995); Mental Walton v. Corp., 154 v. Excel also Hendricks-Robinson (3d Assoc., Cir. F.3d 670 Cir.1998) 168 (7th (describing the Health 693 F.3d Vernon, 1999); 118 City v. Mount Clean-Up Stone Jacques v. process); interactive (2d 1997); v. 1996) with Benson Cir. F.3d Cir. 515 96 Group, F.3d Airlines, Inc., F.3d Northwest in which ("There may situations well be Cir.1995); Corp., (8th York v. Int’l and White engage an informal employer's failure Cir.1995); with F.3d a failure process would constitute interactive (D.C.Cir. Gelb, Barth accommodation provide reasonable employer

which the did not contest the was under pressure business to fill the slot of the accommodation ex- reasonableness permanent with employee (indeed, another per any to embrace a se rule cept did). situations, it never In other tempo- beyond one-year peri- its reservation rary replacements may be unavailable or Lederle, long. employer, od too The was here, unsuited to the position; the avail- proof has the burden of on the issue of able evidence contrary. is all to the hardship, put any undue and it did not addition, said, there is no evidence that hardship evidence of undue from Garcia’s the cost of temporary help greater proposed accommodation. See Ward v. than permanent the cost of a employee; Institute, Massachusetts Health Research might Thus, one suppose it was less. (1st Cir.2000) Inc., (reversing 209 F.3d 29 requested accommodation of a few addi- summary judgment in an ADA case where leave, tional months of unsalaried with the employer produced no evidence of job being functions satisfactorily per- hardship). undue meantime, formed is reasonable. facts, While on different employer presented the court with for an extended leave could indeed be too any' no evidence of hardship, much less long to be reasonable accommodation record, hardship. undue On this we see no and no reasonable factfinder could con basis for the court to do other than enter otherwise, clude that is not this case for judgment for Garcia. Under the EEOC number of appear reasons. does not guidelines, § 29 C.F.R. 1630.2(p), factors expected paid to be for the to be considered as hardship to undue away beyond additional weeks from work accommodation, include the cost of the employer’s those allowed under the disabil resources, expenses effect on im- ity program job benefits and while her pact of the accommodation on opera- being performed functions were by tempo tion of the facility (including on other em- rary help. There is no that the evidence ployees’ ability jobs) to do their and the temporary employees paid were more than impact facility’s ability to conduct Garcia or job were less effective at her business. On this record there is no dis- Indeed, than she. Lederle’s continued use any cernible negative impact on of these temporary employees and fail Lederle’s factors; indeed, the hardly record shows ure replace Garcia indicates the con any impact discernable at all on the em- was, therefore, trary. There no financial ployer from the accommodation. burden on the employer paying from an As it the employer’s pro- burden to employee who was not It is performing. duce hardship, evidence of hold that we true that an employer usually needs to must bear responsibility ab- job filled, have the functions of a and the sence of such evidence here. fact that essential gone functions have un We the Act lengthy filled for a stress period could does well war require here, employers rant for an to retain disabled employer. But employees the essential functions who cannot were essen filled, jobs tial satisfactorily, to all indications functions their without reason temporary able employees. tempo Applying The use of accommodation. this rule to not, course, rary employees prolonged always disability leave situation is satisfactory possible tricky, or even a solution. however. An absent ob here, But there is no evidence that viously perform; Lederle cannot himself or herself 1993); Conopco, (5th Willis v. Sys. Corp., 108 F.3d Data 682-83 F.3d Cir.1997); (11th Air, Cir.1996); Sys. 285-86 Barnett v. U.S. Monette v. Electronic Data 1173, 1183, (9th Cir.1998), (6th Corp., 157 F.3d 748-49 1186 n. 12 (9th Cir.1999), Cir.1996); amended and Vande Zande v. Wisconsin review, Admin., (7th pending Dept. and withdrawn en banc (9th Cir.2000); Cir.1995). F.3d 1256 Riel v. Electronic nals, Inc., Cir. instances, may in some still, 1996); employee’s absences where the here, get temporary to be able such and “unex that work were “erratic” alternative from other help or find some see, e.g., Corp., v. Olin Waggoner satisfactorily plained,” with proceed it to will enable (7th Cir.1999); 481, 169 F.3d 484-85 uninterrupted while disabled its business where, employee’s return to upon In like the recovering. situations employee is see, work, e.g., unqualified, that, ailing slot she would be retaining employee’s the Ctrs., Inc., 31 v. National Educ. may Tyndall be unsalaried granting while (4th Cir.1994); 209, the F.3d 213-14 required by accommodation reasonable complete hired to however, employee em- the If, allowing the sick where ADA. task, see, Marc e.g., the Stubbs v. job places specific or her to retain his ployee (C.D.Ill. Center, F.Supp. 950 hardship" situation where in a employer 1997). Trans generally Micari v. alterna- in some reasonable cannot secure Cf. Airlines, F.Supp.2d 43 hired the way for which it World tive the services (E.D.N.Y.1999) cases); (collecting yet from ailing employee, and is blocked Inc., 40 rehire, Polygram Holding, v. the ADA does not re- Powers effecting a (S.D.N.Y.1999) 195, 199-201 F.Supp.2d person. the retention of the disabled quire (same). addition, in Hence, to this court has expect it is unrealistic to where company had into whether the quired to those essential obtain someone it was policy until the sick em- made earlier decisions temporarily functions returns, employee ad may profitable permit be enti- more to employer ployee hire and train a new ill and hire ditional leave than to discharge tled to Criado, F.3d at 444. might employee. this See 145 exception An to someone else. disability leave so requested if the be difficult, intensive, fact case- These are harm could that no undue business brief by per se rules by-case analyses, ill-served to occur from not reasonably expected be stereotypes. emphasize We or our anal- vacancy. We add that filling evi- record here contains no stipulated facts, may applicable to these ysis, while any hardship of form to dence whatever of other cases. Undue applicable be ac- as a result of the Lederle im- limited financial hardships are not to so, would Were this not we commodation. accommodations pacts; the term includes a fact- obligated feel to return the case to extensive, unduly substantially that are given But finder for further evaluation. fundamentally al- that would disruptive, or meet, even mini- employer’s failure operation or of the business. ter nature mally, proof burden on the issue of its pt. App. See 29 C.F.R. judgment award to Garcia as hardship, we matter of law. factors be considered Other requests to whether leaves absence V. include, example:

are unreasonable employee gave no indication as where the entry judgment We reverse the might able to return to when she be Lederle, entry judgment direct favor instead, work, and, demanded simply García, ADA for liability under the see, open indefinitely, be held that her proceedings case for further remand the Co., Taylor Pepsi-Cola 196 F.3d e.g., opinion. accordance with (10th Cir.1999); v. & Watkins J appellant. So ordered. Costs Cir.1998) S Oil v. Lucent Technol (citing Myers); Corder O’TOOLE, dissenting. Judge, District Cir.1998); ogies court for criticizing After the district Dunlop Corp., Tire Duckett v. law, (11th Cir.1997) curiam); a matter of deciding this case as (per thing. majority exactly then does the same Marine Termi- Rogers v. International that, on Holding presented the facts to the sonable accommodation” of her disability court, plaintiffs district for which employer was bound to afford job1 leave from her awas ac- reasonable her under the ADA unless the commodation under the Americans with could demonstrate doing so would (“ADA”), Act Disabilities U.S.C. cause it hardship. undue Since the em- §§ 12101 et seq., court directs the en- ployer proffered no evidence of undue try liability of a as to in favor of hardship, the court concludes that party with the of proof. burden Be- plaintiff is entitled to in her invading sides province the of fact-finding favor liability. as to warrant, without ruling court’s ex- pands the reach of ADA beyond what II. language its should be under- properly The plaintiff may entitled be to a reme- stood to authorize. I respectfully dissent. dy under the ADA she “qualified if is a

I. individual with a disability.” She is a “qualified individual with a disability” if plaintiffs The her illness caused to have she has the requisite skill experience and periods several substantial of absénce from for position, here, which is undisputed work over the course of her employment if she “perform is able to the essential with the defendant. She was able to be functions of employment position” yet absent and remain employed by taking “with or without reasonable accommoda- of a advantage combination 12111(8); tion.” § See U.S.C. see also benefits, including sick leave and short- Criado v. IBM Corp., disability term leave.- (1st Cir.1998). It appears from the record that the last dispute There is no that when actually time she worked was in' Novem- employment terminated, was ber, she was not November, 1995. Beginning in late in job able to her without an accom- undergo order to a marrow bone trans- modation. She was not then performing plant, began period she a of short-term it, performed and had not it for disability leave which some apparently expired Nonetheless, March, months. the court concludes 1996. Still recuperating, she plaintiff that the have “quali- would been began then long-term receive disability fied” to perform job her with the accom- benefits under employer’s her plan. modation she June, requested: that she be ex- employer notified her job cused from performing until one-year period for reservation of- her had recovered is, sufficiently to be able to job right her job to return to her —that return to work again. once from disability expired status —had also March.2 She asked a further extension period When a job leave from a may of the right reservation of her to return to appropriately be considered an accommo- weeks, a work for few request but her was dation that an employee enables to per- denied her employment formally form job presents a troublesome terminated. problem, partly oxymoronie because of the

The court now request holds that her harbors, anomaly it but also because of the an extension must be considered a daunting “rea- challenge line-drawing pres- plaintiff’s The court request 1. describes the appear plaintiff as It does not that the chal- period one for a I have leave. some doubt lenged that either at time calculation or in way to whether that is best describe her suit. The asserts without con- job her rights that her reservation be one-year job tradiction that its reservation longer extended period. than the normal I period equal period guaranteed to the content, however, accept am the court’s under Puerto Rican law. purposes characterization for the of this dis- cussion. an a measure must be both commodation” among view prevailing The ents. and “reasonable.” “accommodation” the law of this Appeals, Courts of leave can Circuit, period a is that place, first an “accommodation” In the ac- be reasonable circumstances some purpose; it is serve a functional must employer un- required of an commodation An accommoda- to a desired end. means Criado, 145 F.3d at 443. the ADA. See der contemplated by the ADA is tion as wrong say cate- way, it is Put another of a performance that enables the measure never be reason- that leave can gorically measure, who, by a without person accommodation. able job. See performing is disabled from 12111(9). effectively § trans- 42 U.S.C. one, capacious is a term “leave” person into enabled forms a disabled however, cases do not hold and the job. person purposes for the a reasonable ac qualify will any leave follows. If the measure The converse Parcel v. United commodation. See Walsh enable the otherwise disabled does not (6th Cir.2000) Serv., 718, 726-27 201 F.3d functions person the essential by plaintiff “ob (finding leave and job, quality its functional loses unreasonable”). ac “Reasonable jectively as an accom- consequently operate fails to term, a capacious is also commodation” modation. appro to permit broad so as purposefully only be An accommodation must not flexibility. a case-by-case Whether priate effective; rea- functionally it must also be leave is reasonable particular proposed ac- Again, proposed whether sonable.3 in the must be answered accommodation not will ordi- commodation is reasonable or See, case at hand. factual context of the of a narily judged peculiar be facts (“Whether Criado, 145 F.3d at 443 e.g., eases, it will be a given case. In most turns on the is reasonable left and evalua- matter to be to assessment case.”). many interre facts of the Where tion the trier of fact. on an assessment lated considerations bear “reasonable,” cautions prudence of what Nonetheless, judges may be sometimes summary a resort against ready too what circumstances upon called decide matter of law. See Ward dispositions as a make a measure a reason- might proposed Research Insti v. Massachusetts Health accommodation, not, or as a matter able Cir.2000) (revers (1st tute, (af- 209 F.3d Walsh, at 726-27 law. See 201 F.3d declining to hold ing summary judgment; in firming grant summary judgment se); per accommodation unreasonable plaintiffs re- favor of because Stores, Nunes Wal-Mart “objectively quested accommodation was Cir.1999) summary (reversing unreasonable”); also v. Federal see Evans reasonableness of leave judgment because Corp., Express Cir.1998) Northeast jury question); Cehrs v. summary judgment, (affirming Ctr., law, that, Ohio Alzheimer’s Research under state accom- holding and (6th Cir.1998) (following likely Cria modation not shown to be successful reasonable). reversing summary judgment There is hazard in do and was not (af Criado, broadly categori- at 444 or too employer); trying speak too where the employer’s cally, especially motion for this area firming denial law). accommodations, any potential a matter of varieties of judgment context, however, why any given accommodation ac- the reasons to be “reasonable argues necessary the measure an accommo- that a reason- to make 3. The EEOC as amicus that is "feasible” able accommodation is one of the modifier indi- dation. The inclusion "effective.” EEOC Br. at only be the measure must not cates gives short shrift to the effective,” functional, seems to me that view but i.e. "feasible and effective” could be modifier. "Feasible to boot. "reasonable” functionality way expressing shorthand might reasonable, might or not be are mitted aas “case “adjudica- stated” for full Still, myriad. there will be cases which tion” the district court. may appropriately a court ques- take the Moreover, the opinion district court’s in away from

tion the trier fact and decide dicates, consistently with parties’ char it as a matter of law. acterization, that judge thought he was

not merely policing the fact-finding func III. tion under Rule but per instead was forming it. In posing the issue he was out, As the opinion points court’s there with, presented said, he “[T]he Court must is some ambiguity in this record as to therefore determine whether plaintiffs re parties whether the presented the case to quested accommodation was reasonable court district as a matter ” under the circumstances.... Garcia- of law or for decision on the court’s fact- Ayala Parenterals, v. Lederle finding. They presented a stipulation of F.Supp.2d (D.P.R.1998). He then undisputed facts and cross-moved for sum- on, went “The Court that plaintiffs finds mary judgment. If nothing appeared, else request was not under reasonable the cir one would conclude they seeking were added). cumstances.” Id. (emphasis only a ruling of law. But parties’ stipulation they indicated that were sub- I Accordingly, agreement am in with the mitting liability portion of the case “to court’s conclusion stated Part III of its adjudication Court for on the merits of opinion that the submitted the mat- parties the legal in this matter.” ter as a “case stated” that review controversies. “Adjudication on the merits” ordinarily the district court’s fact-finding is for clear suggests more than summary judgment. error.4 Reich v. John Alden Ins. Life Unlike a full (1st consideration of a case after Cir.1997); F.3d EEOC v. trial, summary judgment does not always Union, Steamship Clerks Local adjudication, end in an because (1st even on Cir.1995). The “clear facts, cross-motions based on stipulated error” applies standard not only to resolu- might court conclude that neither side is tion of factual disputes, but also to the entitled to win as a of law matter and that factual by inferences drawn the district dispute the must be submitted the fact- court on the basis stipulated of the facts. finder. full fact-finder, The Id. all, only after includes not settling conflicts On the presented record and under an facts, in the “basic” also drawing ap- but appropriate application the statute’s propriate inferences By from those facts. terms, a fact-finder’s inference-based con- praying adjudication merits, the plaintiffs clusion that the request for an

parties indicated they that expected the extension of her right return to work factual, court to district resolve the as well not a reasonable accommodation can- was legal, as pertinent issues to the issue of not be clearly called erroneous. The clear- liability. ly erroneous permit standard does not Any lingering doubt as to what the par- appellate court to substitute its own evalu- dispelled by ties intended is they what ative judgment of what was or was not told reasonable, have us. Both sides asserted their unless district court’s con- the briefs to us that the applicable standard of clusion unquestionably, just was not argu- error,” appellate review ably, is “clear the stan- wrong. If the same facts that were dard used to review fact-finding by a dis- presented judge to the below had been Thus, trict court. both before the district presented jury, to a if jury the court, court and before parties this the returned a verdict that the leave presented the matter having as been accommodation, sub- was hot a reasonable I course, any purely legal 4. Of rulings ject are sub- to de novo review. length of a leave permissible about the court dis- would imagine that

cannot and, therefore, an individu- failed to make finding. that turb say I must of the case. alized assessment IV. I this criticism. quite I understand do in the district any find indication do not district challenging the Rather than give atten- that it opinion court’s failed erroneous, clearly fact-finding as court’s To the of the case. particulars tion to the errors legal two it majority identifies discussed court contrary, district First, court committed. the district says by presented the facts of the case detail court failed says the district the court to the no attention parties; gave less to the consideration give individualized than the facts of the case “individualized” case, decided but instead plaintiffs parties did. leave request for additional plaintiffs Second, the need majority cannot mean that per was se unreasonable. ADA of an individualized assessment improper- court the district says court necessarily precludes disposition “undue as to case of,proof the burden ly shifted law, this court has to dis- because plaintiff a matter hardship” by requiring cases as a dispositions of ADA it, employ- affirmed requiring than prove rather See, v. Reha e.g., of law. Tardie matter it. er to establish (1st 168 F.3d 538 Cir. Hosp., bilitation think, error, I purported The second Island, 1999); Feliciano v. Rhode reading of incorrect stems from an Cir.1998). majority cer And argued The issue opinion. court district need for indi tainly mean cannot and the issue decided parties, requires always sub vidualized assessment court, plaintiff whether the the district by the the matter for decision mission of disability. person with qualified was a fact, because, all, the court’s trier of after issue de- particular, resolution of that entry orders disposition now pended plaintiffs whether law, without as a matter of plaintiff for the accom- a reasonable for further trier of fact. to thé submission argue did not employer modation. The is, if the question court more pertinent district hardship. Though undue the making a by decided the case the ac- district court opinion granting state that does majority appar ruling “in of law as the pure the place commodation would asserts, by applying than the ently rather position,” Garcia- an untenable business infer permissible and the at in context that law to the facts Ayala, F.Supp.2d them, ruling drew from was its not an of ences it phrase was used elaboration defense, the district Specifically, incorrect? did hardship” the “undue affirmative (if did) it that no holding court part explication the court’s err but as the conclude that judgment, the rational fact-finder could why, in the court’s district requested leave Garcia was reason- extension of requested accommodation not under the say accommodation think it is to reasonable able. I do accurate not par I the em- ADA?5 would conclude that giving that court was the district case, ruling such a hardship” ticular facts of this of the “undue ployer the benefit defense, an to the would not have been error. affirmative or shifting affir- disprove plaintiff the burden to that requested the The leave extension mative defense. accommoda- was not a reasonable plaintiff it was tion as a matter of law because majority finds is The other error the term an at se rule accommodation all applied per court district period could that a of leave expressly that did not rule recognized it 5. The district court accommodation, and be a reasonable may accommo- qualify a leave as a reasonable never ruling conflict with Garcia-Ayala, is not in thus the direct circumstances. dation some clear, any precedents. our F.Supp.2d It is therefore. ought to be understood. To be accom- there general seems to be agreement that modation, requested leave would have period a leave indefinite, cannot be to do what an accommodation periods under the leave that have been explicitly or ADA must the employee implicitly do—enable to approved vary in length. Some perform job. the essential functions of her variation is not inappropriate; that is con- put To it terms of the proposed EEOC’s sistent with the need to evaluate each case accommodation,” definition of “reasonable particular on its facts. leave would not have end, however, In the the leave must not

been “effective.” only be one proper that serves a medical following seems me that the propo purpose; it must also be one that serves can be extrapolated sition from the statutory cases: purpose, which is to enable For a proposed period of leave to employee consti perform the essential accommodation, tute an effective it Evans, must job. functions her Cf. First, meet at least two conditions. statute). it at 140 (construing similar state must be or instrumental to effect advance It cannot be overlooked that the statute change in the employee’s disabled status speaks tense, in the present indicative with respect job, to the so that employ mood. A “qualified individual with a dis- period ee is enabled to do it. A ability” of leave entitled to the protection 'statute’s meet permitted would this criterion if it person is a who “can the essential therapy to receive or treat employment functions position” with ment that would succeed in removing the reasonable accommodation. 42 U.S.C. 12111(8) to employment particular added). § obstacle dis (emphasis per- “Can Criado, ability posed. example, form,” as in I “now.” would not contend court employee’s noted that the physician that the requires literally statute instanta- believed that “the leave would ameliorate neous effectiveness of an accommodation. - disability.” her at 444. By approving Similar the idea that some leaves ly, an interpretive EEOC guideline sug might qualify as reasonable accommoda- gests necessary tions, courts, that leave “for treatment” including one, have accommodation, could be reasonable 29 properly rejected such a cramped and un- pt. Department C.F.R. and the app., However, realistic reading of the statute. of Labor advises that might fidelity be a language to both the purpose reasonable accommodation “when the dis of the statute requires that the time within ability is of a likely nature that which proposed accommodation accom- respond pt. treatment.” 29 C.F.R. plishes intended purpose enabling its — A(b). app. Simply possibility the of im employee perform job to the be —must provement however; enough, is not the such that tolerably the accommodation is recovery reasonably must be likely. words, See statutory consistent with the “can Evans, 133 F.3d at 140 (construing similar perform.” statute). Further, State prospect the of I would plaintiff conclude that the did (or enablement) recovery should judged be not carry her burden of proffering evi- by hindsight, not by but what reasonably dence that requested the leave she appears at the requested. time leave is “effective” in ways. these two essential

Id. She asked that abide her Second, the employee’s return to work recuperation continued for an additional must relatively proximate be in a temporal period, she offered essentially but little — sense. The cases do not speak with one an prognostic unelaborated estimate —that subject, voice on this give some little objective would enable an assessment ei- it, except imply attention to to that ther of the prospect recovery realistic of as temporal figure element jury’s will of the request, likely time of the or of assessment of Although Further, reasonableness. duration of her absence. I do not law, if called on we ery area of the legitimate- could requested leave

think the (cid:127) obligation this shy en- not from the an accommodation should ly to be be- said well, regard to our views her, without contemporaneous- less area abling more or was not treated plaintiff functions as to whether the ly, perform the essential long-time employ- her opportunity particularly her well job.- may given It have ought of ADA to contain a couple months er or again whether to become able -that road, something that it does not. provision but is down the construed, not statute, does properly address. V. her 'most recent dis- began- Before she majori- agree if I were to with the Even November, ability had not ty that the district court reached job without accommo- performing her adjudicator fact and as an of its conclusion had August, dation. As of late law, improperly rather ruled that but again able and was apparently recovered un- accommodation was requested job without accommoda- her law, a matter I would reasonable as August, and late tion. Between November dis- disagree with the court’s nevertheless The requested not to work. she was able position. that. It changed not have leave would First, from I plain it should be what work made her- able to not have would agree that I not already have said do unable, -and when she was when she was clearly leave was a rea- so unnecessary. point again, it was able accommodation that no rational sonable fact, had no effect on her it would have fact-finder could conclude otherwise. What it would have ability actual to work. says many it in so opinion Whether employer’s ability to ter- affected was the not, certainly or is the sub- words she could employment

minate her because If disposition. of its the district stance Restricting an abili- employer’s not work. law, erroneously ruled a matter of court is unable ty to terminate an who case would proper disposition of this object legis- legitimate to work can be a employ- vacate for the be to objec- not the regulation,6 lative but back for trial er and send the case considering. we are tive of the statute (I side fact-finder. not hold either would importance or diminish the value does not jury previous- made to the waiver of trial that it does not of the ADA conclude ly-) particular all- and in that it problems, solve problem protecting does solve the Second, opinion gives inap- the court’s who need an security employees ability weight employer’s to the propriate workplace extended absence from replace temporary Garcia with a em- medical reasons. during from work- ployee her absence problems I have two with it. To obligation apply place. is to construe and

Our written, with, begin pertinent it is an more sensibly the statute as it was inquiry that, hard- among things, other to-the affirmative defense “undue consistently, so ship,” argued which the em- employers employees will under- both court. ployer it and what does or considered the district requires stand what notes, ante, obligation occa- As the court at 648 n. there Discharging not. will sionally rulings deny relief to is considerable debate about the relation- call for concepts of plaintiffs ship who have-endured between the reasonable such Garcia I extraordinary hardship, accommodation and undue personal hardship. We the court that this case necessary eagerly agree make such in ev- with rulings when consideration, ciently Congress problem is not for our at least on 6. has addressed the in the Act, Family and Medical Leave 29 U.S.C. this occasion. seq. §§ 2601 et Whether it has done so suffi- does not call for us to weigh on that

subject. hardship” Since “undue de- below, was not argued

fense or resolved I leave it

would alone. fundamentally,

More opinion the court’s

morphs meaning by sug- the statute

gesting that an per- accommodation that

mits employer, without hardship,

hire perform someone else to the essential job equivalent

functions to an

accommodation that permits the disabled the essential func- job.

tions of the Again, provision such a

might be an appropriate feature of a stat- mandating

ute policies, but it is anot

fitting part of a statute that forbids against persons by disabled

discrimination

requiring employers to accept them as

workers preconceptions, stereo- when— types, and “usual” practices business they are job. able to do the

aside—

VI. reasons,

For except these as to the

court’s conclusion about nature of the below,

proceedings respectfully disagree I

with reasoning and dissent from the

disposition set forth in opinion. the court’s SANDS, Plaintiff,

Howard Appellant,

RIDEFILM CORPORATION and Plishtin, Defendants,

Bernard

Appellees.

No. 99-2006.

United States Appeals, Court

First Circuit.

Heard March 2000. May

Decided

Case Details

Case Name: Zenaida Garc A-Ayala v. Lederle Parenterals, Inc.

Court Name: Court of Appeals for the First Circuit

Date Published: May 18, 2000

Citation: 212 F.3d 638

Docket Number: 98-2291

Court Abbreviation: 1st Cir.