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. e du/thir dc ir c uit_1999/89Filed April 5, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 98-1273

KATHERINE L. TAYLOR,

Appellant

v.

PHOENIXVILLE SCHOOL DISTRICT

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 96-cv-08470) District Judge: Honorable J. Curtis Joyner

Argued December 17, 1998

Before: SLOVITER and COWEN, Circuit Judges and RODRIGUEZ,* District Judge

(Filed April 5, 1999)

Joseph A. Ryan, Esq. (Argued)

13 Paoli Court Paoli, PA 19301

Counsel for Appellant

___________________________________________________ ______________

*Honorable Joseph H. Rodriguez, U.S. District Judge for the District of New Jersey, sitting by designation.Michael I. Levin, Esq. (Argued)

Michael I. Levin & Associates 1800 Byberry Road

1402 Masons Mill Business Park Huntington Valley, PA 19006

Counsel for Appellee

OPINION OF THE COURT

COWEN, Circuit Judge.

Katherine Taylor brought suit under the Americans w ith Disabilities Act of 1990 (ADA), 42 U.S.C. S 12101 e t seq., and the Pennsylvania Human Relations Act (PHRA), 43 Pa.Cons.Stat.Ann. S 951 et seq., alleging that her former employer, the Phoenixville School District, failed to provide

her reasonable accommodations for her mental illnes s. The District Court granted summary judgment for the sch ool district, reasoning that Taylor's mental illness, b ipolar disorder, or manic depression as it is sometimes ca lled, did not qualify as a disability under the ADA. Alternat ively, the District Court held that even if Taylor did have a disability, the only accommodation she specifically requested, transfer to another position, was not possible and, conseque ntly, she was not an otherwise qualified individual with a disability. We will reverse and remand for further proceedings.

I

Before she was terminated on October 28, 1994, Katherine Taylor had worked for twenty years as the principal's secretary at the East Pikeland Elementa ry School in the Phoenixville School District. Prior t o the fall of 1993, Taylor had not received a single disciplin ary notice from any of the various principals she worked with over the years, and when formal evaluations were instituted in the 1991-92 school year, she received high praise.

Trouble began after Taylor suffered the onset of bi polar disorder in late August of 1993, regrettably during the first

2full week that a new principal, Christine Menzel, a ssumed

her duties at East Pikeland. While Taylor was at wo rk during that week, she began acting strangely, alarm ing Menzel and Linda Ferrara, the school district's administrative assistant for personnel. Menzel and Ferrara were so disturbed by Taylor's behavior that they do ubted Taylor's capacity to leave on a train by herself an d had someone at the school district contact Taylor's son , Mark Taylor. He soon drove his mother to Coastal Plain H ospital, a psychiatric institution in Rocky Mount, North Car olina, where she was admitted as an in-patient on August 3 1,

1993.

Hospital records indicate that Taylor had become ma nic and was increasingly agitated and psychotic. Accord ing to the records, Taylor hid herself at the train statio n, believing that someone was after her, and tried to disguise h erself by covering her head with a scarf. On the car ride fro m Pennsylvania to the hospital, she was delusional an d announced that the car was being escorted by state troopers and helicopters. She also claimed that her son's boss was after him and that there were many people on the highway who were "firefighters" who were trying to protect her. The hospital report noted that Taylor did not have any insight into the severity of her condition and beli eved she was being admitted due to "acute stress." The schoo l district's own expert, Dr. Rieger, agreed that duri ng Taylor's hospitalization, she "clearly had paranoid delusion s" and was hyperactive and psychotic.

Taylor was treated by two psychiatrists at the hosp ital who diagnosed her illness as bipolar disorder and t reated her with lithium carbonate and an antipsychotic dru g, Navane, when lithium alone was insufficient. Once T aylor's symptoms were brought under control by the combinat ion of drugs, she was discharged on September 20, 1993, and her care was taken over by Dr. Louise Sonnenberg, a psychiatrist in Phoenixville, Pennsylvania. Since h er discharge from the hospital, Taylor has continued t o take lithium, see Dr. Sonnenberg, and receive the necess ary, periodic blood tests.1

___________________________________________________ ______________

1. One widely-used text explains that: "Because lit hium has an extremely narrow therapeutic range, blood levels of the drug must be closely

3Taylor's son stated in an affidavit that during his

mother's leave of absence, he had numerous phone conversations with Ferrara in which he explained th at his

mother would be absent from work because she had be en diagnosed with bipolar disorder and required hospitalization. Mark Taylor also asserted in his a ffidavit that during a phone call on October 8, one week bef ore Ms. Taylor resumed working, he told Ferrara that due to Ms. Taylor's bipolar disorder, she "would require

accommodations when she returned to work." The affi davit adds that he provided Ferrara with the information he received from his mother's doctors "including diagn osis and

treatment information and medications." Coastal Pla in Hospital itself sent a letter to the school distric t on September 13, 1993, identifying one of Taylor's phy sicians and providing a phone number to address any additio nal questions the school district might have.

According to Taylor, Ferrara did eventually contact one of her treating physicians. Ferrara's own handwritten notes show that she attempted to obtain copies of Taylor' s records from Coastal Plain Hospital and planned to speak to at least one of Taylor's doctors. The school dis trict had

___________________________________________________ ______________

monitored. The occurrence and intensity of side eff ects are, in most cases, directly related to plasma concentrations of lithium... The main toxic effects involve the gastrointestinal tract, t he kidneys, the thyroid, the cardiovascular system, the skin, and the nervou s system." Robert M. Julien, A Primer of Drug Action, 8th ed., W.H. Free man & Co., at 229-30 (1998). The Physicians' Desk Reference, 53rd ed., M edical Economics Co., at 2750 (1999) likewise states that: "Lithium toxicity is closely

related to serum lithium levels and can occur at do ses close to therapeutic levels." Both authorities state that wh en the amount of lithium in the blood is near and above the therapeu tic range, side effects can include nausea, vomiting, abdominal pain, sligh t tremor, lethargy, impaired concentration, dizziness, slurred speech, ataxia, muscle weakness, and nystagmus. Julien adds that memory pr oblems and weight gain are also frequent complaints with conti nued treatment. As plasma levels rise higher, toxic effects include mu scle rigidity, coma, renal failure, cardiac arrhythmias, and death. Bloo d levels can fluctuate for a variety of reasons. For example, Julien notes that "when a patient

lowers his or her salt intake or loses excessive am ounts of salt (such as through sweating), lithium blood levels rise and in toxication may inadvertently follow." Id. at 228.

4other contact with Taylor's doctors because before Taylor

was permitted to return to work, the school distric t required her to submit a note from Dr. Sonnenberg s aying that Taylor was no longer disabled. Even prior to M ark Taylor's October 8th phone call, Ferrara sent a let ter to the school district's superintendent which stated that:

Mrs. Taylor has been released from the Coast al Plain Hospital in North Carolina and her son will be picking her up this coming weekend to bring her back to Pennsylvania. She will be receiving out-pati ent care in Phoenixville through the Phoenixville Psychi atric Associates. They will monitor her Blood Lith ium [sic]

levels. It was stressed that she must mainta in and continue her medication. He felt, as well as the doctor, that the first week should be easing her tra nsition back into the work place.

App. vol. I at 80.

A notation on the letter indicates that a copy was forwarded to Menzel. However, Menzel has submitted an affidavit denying that she saw the memo and asserti ng that: "I did not learn the specifics of the Plaintiff's a lleged condition (i.e., bipolar disorder) until after read ing a newspaper article describing her filing of the curr ent lawsuit." App. vol. II at 2. Ferrara has also submi tted an affidavit asserting that "at no time was I or anyon e else at the School District aware of Plaintiff's alleged di agnosis of bipolar disorder or the details or frequency of any treatments she may have been receiving after return ing

from Coastal Plain until after the current lawsuit was filed." App. vol. II at 50.

After Taylor provided the note from Dr. Sonnenberg, she resumed work on October 15, 1993 although, as Ferra ra's letter indicated, Taylor was only authorized to wor k half days for the first week. Prior to her hospitalizati on, Taylor had received high praise for her performance. In Ju ne of 1993, about two months before Taylor's hospitalizat ion, the outgoing principal, Dr. Herron, wrote that Taylor"e xcels in all aspects" of her job, was a "credit to our schoo l," and "a tribute to excellence." App. vol. I at 86. In a sub sequent letter of recommendation, Dr. Herron again praised Taylor's performance without reservation and stated that:

5As a secretary, Mrs. Taylor served me and th e entire

school family exceeding[ly] well... I felt c omfortable in leaving the building, sometimes for an exten ded amount of time, because of Mrs. Taylor's ski lls. Indeed, at such times, Mrs. Taylor carried on the fu ll functions of the school as if she herself was capable of running the functions of the building without superv ision, and, indeed, in such cases, she was entirely capa ble of doing so.

App. vol. I at 87.

Almost immediately upon Taylor's return to work, Menzel, following Ferrara's advice, began documenti ng errors Taylor committed. The errors were then compi led into a bullet-format list, the list was presented t o Taylor,

and soon thereafter Menzel and Ferrara would call T aylor into a disciplinary meeting and offer her a chance to rebut the charges. A representative from Taylor's union a lso attended although it is unclear to what extent the representative participated.

Taylor's first disciplinary notice, dated November 9, 1993, listed errors as early as October 19, 1993, only fo ur days after Taylor's return to work and while she was sti ll working part time. Eight more disciplinary notices followed, dated 11/23/93, 12/9/93, 1/6/94, 2/1/94, 3/11/94, 4/22/94, 9/2/94, and 10/27/94, the last arriving sh ortly before Taylor was terminated. Over the course of th e disciplinary meetings, Taylor disputed some charges and tried to explain others, but as 1994 wore on, Menze l documented many errors that Taylor did not contest, and the interpersonal friction between Menzel and Taylo r continued unabated. Disciplinary notices during thi s period list problems such as missed deadlines, mishandling of records, typing errors, interpersonal conflicts, an d undelivered messages.

Part of Taylor's complaint about her treatment is t hat Menzel often did not speak to her informally and in -person about problems as they arose. Instead, Taylor alleg es that Menzel documented every misstep, saved letters cont aining typos, photographed Taylor's desk and trash can, as well as the inside of the office refrigerator, and waited t o confront Taylor with the evidence in the disciplinary meetin gs.

6Taylor also objects that the school district made h er job

more difficult upon her return from the hospital. F irst, during Taylor's absence, Menzel instituted a number of changes in the office: she introduced new office po licies, created new forms, relocated documents, rearranged furniture, threw out Taylor's old filing system, an d discarded files, including some in Taylor's desk. T aylor claims that these changes were disorienting and mad e it much more difficult to accomplish tasks she could e asily perform before the hospitalization. Of course, Tayl or's

absence coincided with the first weeks Menzel serve d as principal, and thus changes were inevitable and par t of Menzel's prerogative as a new principal. The gravam en of Taylor's complaint, however, focuses on the abrupt, seemingly hostile manner in which the changes were made.

Compounding Taylor's difficulties, a new computer system was introduced to keep track of student reco rds and other data. The school district points out that pla ns to introduce the computers had been underway prior to Taylor's hospitalization, and according to an affid avit submitted by a school-district employee, Taylor had more difficulty than the other secretaries at a training session conducted in July of 1993. Taylor does not appear t o dispute that the school district was entitled to sw itch to computers; rather, the thrust of her objection seem s to be that the school district raised another hurdle by t he manner in which the new system was introduced when she returned from her hospitalization.

Taylor claims that her job was made more difficult in another, more straightforward way: Following her re turn, her job description was changed, increasing the num ber of her job responsibilities from 23 to 42. It is not c lear from the record when these changes were made, how substa ntial they were, or to what extent the new list simply en umerated in greater detail duties she already performed, but reading the evidence in the light most favorable to Taylor, there is reason to believe that the new list added significa nt responsibilities and made her return more difficult

.

On September 2, 1994 Taylor received a notice placi ng her on probation for 30 days and informing her that if her performance did not improve, she would be terminate d. She

7was in fact discharged on October 28, 1994 although

Taylor's union representative subsequently negotiat ed with the school district to allow Taylor to "retire" and receive some retirement benefits. Since her termination, Ta ylor has applied at different times for unemployment benefit s and disability benefits.

II

The District Court had subject matter jurisdiction over Taylor's ADA claim pursuant to 28 U.S.C. S 1331 and supplemental jurisdiction over Taylor's state-law c laim pursuant to 28 U.S.C. S 1367. We have appellate jurisdiction pursuant to 28 U.S.C. S 1291. Our revi ew of a district court's grant of summary judgment is plena ry. Olson v. General Electric Astrospace, 101 F.3d 947, 951 (3d Cir. 1996). In evaluating the school district's mot ion for summary judgment, we must determine whether there a re any genuine disputes of material fact, and if not, then viewing the evidence in the light most favorable to the plaintiff, we must decide whether the school distri ct was entitled to judgment as a matter of law. See Fed.R. Civ.P. 56; Celotex Corporation v. Catrett, 477 U.S. 317, 3 22-23, 106 S.Ct. 2548, 2552-53 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2510-11 (1986).

III

A. Basic statutory framework

Under the ADA, employers are prohibited from discriminating "against a qualified individual with a disability because of the disability of such indivi dual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, condit ions, and privileges of employment." 42 U.S.C. S 12112(a) . A "qualified individual with a disability" is defined by the ADA as a person "with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such indi vidual holds or desires." 42 U.S.C. S 12111(8). A"disabili ty" is

8defined as: "(A) a physical or mental impairment th at

substantially limits one or more of the major life activities of [an] individual; (B) a record of such impairment ; or (C) being regarded as having such an impairment." 42 U. S.C. S 12102(2).

In view of the foregoing definitions, we have held that in order for a plaintiff to establish a prima facie ca se of discrimination under the ADA, the plaintiff must sh ow: "(1) he is a disabled person within the meaning of the A DA; (2) he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodatio ns by the employer; and (3) he has suffered an otherwise adverse employment decision as a result of discrimination." Gaul v. Lucent Technologies, 134 F.3d 576, 580 (3d Cir. 199 8) (citing, Shiring v. Runyon, 90 F.3d 827, 831 (3d Ci r. 1996)).

Discrimination under the ADA encompasses not only adverse actions motivated by prejudice and fear of disabilities, but also includes failing to make rea sonable accommodations of disabilities. The ADA specifies t hat an employer discriminates against a qualified individu al with a disability when the employer does "not mak[e] reaso nable accommodations to the known physical or mental limitations of the individual unless the [employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the [employer]." 42 U.S.C. S 12112(b)(5)(A).

Before turning to the first issue, whether Taylor h as a disability under the ADA, we mention that we will o nly discuss Taylor's ADA claim because our analysis of an ADA claim applies equally to a PHRA claim. Kelly v. Dre xel University, 94 F.3d 102, 105 (3d Cir. 1996).

B. Does Taylor have a disability under the ADA?

As set forth above, Taylor can establish that she h as a disability if she has a mental impairment that subs tantially limits a major life activity, has a record of such an impairment, or is regarded as having such an impair ment. 42 U.S.C. S 12102(2). Taylor argues that she can sa tisfy each of these standards, but because we conclude th at she has a mental impairment that substantially limits a major life activity, we need not reach the other two grou nds.

9No one disputes that bipolar disorder counts as a m ental

impairment under the ADA. The ADA's regulations def ine a "physical or mental impairment" as including "[a]ny mental or psychological disorder, such as... emotional or mental illness..." 29 C.F.R. S 1630.2(h)(2). While the Dis trict Court agreed that bipolar disorder clearly qualifies as a "mental impairment," the District Court nonetheless conclud ed that Taylor's impairment did not substantially limit one of her major life activities. Our analysis therefore begin s with the definitions for "substantially limits" and"major li fe

activities."

While we have observed that "[t]he ADA does not def ine `major life activities,' " Kelly, 94 F.3d at 105 (c itation omitted), the ADA's regulations provide a nonexhaus tive list of major life activities that includes "functions s uch as caring for oneself, performing manual tasks, walkin g, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. S 1630.2(i).

According to the ADA's regulations, an impairment "substantially limits" a major life activity when t he person is either: "(i) Unable to perform a major life acti vity that the average person in the general population can perfor m; or (ii) Significantly restricted as to the condition, manne r or duration under which an individual can perform a particular major life activity as compared to the c ondition, manner, or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. S 1630.2(j)(1). The regulation s list the following factors to use in evaluating when someone is substantially limited in a major life activity:"(1) The nature and severity of the impairment; (ii) The duration o r expected duration of the impairment; and (iii) The permanent or long term impact, or the expected perm anent or long term impact of or resulting from the impair ment." 29 C.F.R. S 1630.2(j)(2). A separate analysis is ap plied under the regulations to determine when the major l ife activity of working is substantially limited, see Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778 (3d Cir. 1998); 29 C.F.R. S 1630.2(j)(3), but since we find Taylor's illness affected major life activities eve n more fundamental than working, we need not analyze her disorder's impact on her ability to work.

10When someone must be confined to a hospital because

she is psychotic, increasingly agitated, and grippe d by delusions, it is manifest that her abilities to thi nk, care for herself, concentrate, and interact with others are substantially limited. As Taylor's records from Coa stal Plain Hospital document, before Taylor was treated with l ithium and an antipsychotic drug, she suffered paranoid de lusions that people were trying to kill her, inducing her t o disguise herself at the train station. On the car ride, she thought her son's life was in danger, believed that the highway patrol was escorting her, and thought the highway was fill ed with "firefighters" there to protect her. Unable to reco gnize that these beliefs were baseless, she explained at the t ime of her admission that she was there for "acute stress." Sy mptoms like these constitute severe limitations in a perso n's ability

to think.

We have previously held that disabilities should be evaluated based on the plaintiff's unmedicated stat e. Matczak v. Frankford Candy and Chocolate Co., 136 F .3d 933 (3d Cir. 1997). In Matczak we explained that ac cording to the United States Equal Employment Opportunity Commission's (EEOC) interpretive guidelines, whethe r an impairment "substantially limits" a major life acti vity should be evaluated "without regard to mitigating m easures such as medicines, or assistive or prosthetic devic es." Id. at 937 (quoting 29 C.F.R. Pt. 1630, App. S 1630.2(j) a t 348). We recognized that although the EEOC's interpretive guidelines are not entitled to the same degree of d eference as regulations, we give the EEOC's interpretations" a great deal of deference since Congress charged the EEOC w ith issuing regulations to implement the ADA." Id. We a dded that "we must give the EEOC's interpretation of its own regulations `controlling weight unless it is plainl y erroneous or inconsistent with the regulation[s].' " Id. (quo ting, Thomas Jefferson University v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 2386 (1994)).

Legislative history reinforces the EEOC's position and shows that Congress intended mitigating measures to be excluded from the evaluation of when an impairment substantially limits a major life activity: "[P]ers ons with impairments, such as epilepsy or diabetes, which

11substantially limit a major life activity are cover ed under

the first prong of disability, even if the effects of the impairment are controlled by medication." Id. (quot ing H.R. Rep. No. 101-485(II), at 52 (1990), reprinted in 1 990 U.S.C.C.A.N. 334) See also H.R. Rep. No. 101-485(II I), at 28 (1989), reprinted in 1990 U.S.C.C.A.N. 451; S.Rep. No. 101- 116, at 23 (1989).

We recognize that the Tenth Circuit has rejected th is view

and held that disabilities should be evaluated base d on their mitigated state. See Sutton v. United Air Lin es, Inc., 130 F.3d 893, 902 (10th Cir. 1997), cert. granted, 119 S.Ct. 790 (Jan. 8, 1999). And we are aware that the Supre me Court has decided to review Sutton along with two s imilar cases. See Murphy v. United Parcel Service, 141 F.3 d 1185 (10th Cir. 1998)(unpublished table decision), cert. granted, 119 S.Ct. 790 (Jan. 8, 1999); Kirkingburg v. Albert son's Inc., 143 F.3d 1228 (9th Cir. 1998), cert. granted, 119 S.Ct. 791 (Jan. 8, 1999). Nonetheless, we remain firm in our belief that legislative history and deference to th e administering agency require the rule announced in Matczak, and we are, of course, bound by our prior precedent. We would add that the majority of circui ts which

have considered the issue have held that disabiliti es should be judged based on their unmitigated state. See Arn old v. United Parcel Service, Inc., 136 F.3d 854, 857-866 (1st Cir. 1998); Roth v. Lutheran Gen. Hosp., 57 F.3d 1446, 1 454 (7th Cir. 1995); Doane v. City of Omaha, 115 F.3d 6 24, 627-28 (8th Cir. 1997); Holihan v. Lucky Stores, In c., 87 F.3d 362, 366 (9th Cir. 1996); Harris v. H & W Cont racting Co., 102 F.3d 516, 520-21 (11th Cir. 1996); but see Washington v. HCA Health Services of Texas, Inc., 1 52 F.3d 464 (5th Cir. 1998)(only "serious impairments" like diabetes, epilepsy, and hearing impairments will be assessed in their unmitigated state; permanent corr ections will be evaluated based on the mitigated condition) ; Gilday v. Mecosta County, 124 F.3d 760, 767-68 (6th Cir. 1997)(Kennedy, J., concurring in part); id. at 768 (Guy, J., concurring in part and dissenting in part)("impact of mitigating measures must be decided on a case-by-ca se basis"). Except for the Tenth Circuit, even those c ircuits rejecting the EEOC's rule have allowed that serious conditions, which we believe Taylor's illness is, s hould be

12judged based on their unmitigated state. As the Fir st

Circuit pointed out in Arnold, 136 F.3d at 861, it makes little sense to insist that serious, chronic condit ions like diabetes, epilepsy, or bipolar disorder cannot be d isabilities unless they are so poorly controlled that it become s all but inevitable that no reasonable accommodation is poss ible.2

___________________________________________________ ______________

2. Employers need not fear that discounting mitigat ing factors will

establish a flood of new-found disabilities and dem ands for accommodations. First, many widely-treated conditio ns simply do not significantly restrict a person's functioning as co mpared to the average person's - even when those conditions are left untr eated. If, on the other hand, a condition is disabling when untreated, but really is fully corrected by mitigating measures, then it is very u nlikely that employers will need to make much in the way of accommodations , for by hypothesis, the condition imposes no restrictions o n the employee.

The value of looking to the unmitigated condition i s that it allows the ADA to encompass serious, chronic conditions like d iabetes or bipolar disorder that, while capable of being controlled by medication, are not always perfectly controlled. Medical treatments for many chronic

conditions can in some instances themselves create limitations. See, e.g., supra note 1. The problem with insisting that these uncontrolled symptoms must themselves be substantially limiting before accommodations are required is that once the sympto ms of a serious, chronic condition are no longer kept in check, they can rapidly become totally disabling. As a result, employees with thes e disabilities would be denied the right to accommodations when modest acco mmodations could help them surmount significant although not substan tially limiting symptoms. And "disability" status would only be ach ieved when their health had deteriorated so precipitously that no re asonable accommodation was possible. To take Taylor's case, she would not be legally entitled under the ADA to even the most sim ple accommodations for blood tests until she experienced the onset of another manic episode which could easily result in her becoming psychotic , requiring another

commitment to an institution.

It might be thought that those who have serious, ch ronic conditions can turn to the "regarded as disabled" prong to est ablish a disability and obtain accommodations when symptoms or the side eff ects of treatments flare. However, aside from the fact that an employe r may not regard the employee as disabled, it remains an open question i n this circuit whether employees are entitled to accommodations if they can only satisfy the "regarded as" prong for demonstrating a disability. See Deane v. Pocono Medical Center, 142 F.3d 138, 140-41 (3d Cir. 1998)(en banc).

13The District Court concluded that Taylor was not

disabled because she failed to show that her bipola r disorder was more than a temporary condition. Close ly related to this point was the District Court's alte rnative statement that Taylor did not suffer a disability a t the time the adverse employment decision was made, i.e., on the District Court's view, the date of her termination.

Concerning the District Court's second statement, w e want to clarify that Taylor alleges the school dist rict refused to accommodate her throughout the period starting immediately after she returned to work from the hos pital and continuing until the date of her termination. T hus, the proper inquiry is whether Taylor was disabled durin g the period she says she sought and was denied reasonabl e accommodations. We do not narrow the inquiry and as k only whether Taylor was psychotic or had some uncontrolled symptoms of her bipolar disorder on th e specific day she was terminated, for that would vit iate the rule that a disability controlled by medication is still a disability and would ignore the fact that the alleg ed failure to accommodate began before the termination.

The District Court's position properly understood s eems to be that Taylor failed to prove that her illness continued beyond the date of her discharge from Coastal Plain , and therefore, the school district was not required to accommodate a disability that no longer existed. Th e trouble with this view is that Taylor provided ampl e evidence that her disability has continued since th e date of her hospitalization.3

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3. We have previously held that some temporary impa irments will not qualify as disabilities under the ADA even during t he time the impairment actively affects the individual. McDonal d v. Com. of Pa., Dept. of Public Welfare, 62 F.3d 92 (3d Cir. 1995). We ex plained in McDonald that the EEOC's guidelines provide that "temporary, nonchronic impairments of short duration, with little or no lo ng term permanent impact, are usually not disabilities." Id. at 95 ( quoting 29 C.F.R. Pt. 1630, App. S1630.2(j) at 347-48) We also reviewed t he factors set forth in 29 C.F.R. S 1630.2(j)(2) for determining when an impairment "substantially limits" a major life activity: the i mpairment's nature and severity, its expected duration, and its long-term impact. Because we conclude that Taylor's condition was chronic and su bstantially limiting, we need not delve into the question of which acute conditions are excluded from the ADA's definition of a disability.

14The District Court noted that Taylor's records from

Coastal Plain Hospital did not discuss her prognosi s after the discharge. The records only stated that at the time of discharge, Taylor was doing well, was "not overtly psychotic," and would be "followed by a psychiatris t of her

choice in her home town." These statements certainl y are not inconsistent with Taylor's having a chronic con dition, and by indicating that her symptoms are currently u nder

control and that she will receive further treatment , the records at least imply that the condition is ongoin g. Other evidence before the District Court affirmatively demonstrated that Taylor has a continuing illness. Most obviously, Taylor has continued to take lithium and see a psychiatrist. Dr. Sonnenberg, Taylor's treating phy sician, stated that Taylor's bipolar disorder "is not cured but

controlled with her medication" and "without the me dicine Mrs. Taylor's symptoms are likely to be exhibited." 4

The District Court evidently refused to consider Dr

. Sonnenberg's opinion because the Court said, citing Gaul v. AT&T, Inc., 955 F. Supp. 346 (D.N.J. 1997), Taylor could not rely on the opinion of her own treating physici an. But Gaul stated that "[i]t is well settled that treatin g physicians may testify as to any subject relevant to the evalu ation and treatment of their patients." Id. at 349. At issue in Gaul was whether testimony by the plaintiff 's treating phys ician satisfied the New Jersey Supreme Court's holding th at "expert medical testimony is required to establish the fact of the employee's [handicap]." Id. (quoting Clowes v. Terminex International, Inc., 109 N.J. 575, 597 (19 88)). Just

as the District Court in Gaul deemed admissible the opinion of a plaintiff 's treating physician, we ho ld that a plaintiff in an ADA case can rely on the testimony of his or her treating physician to demonstrate that the plai ntiff has a disability.

The District Court also cited the report of the sch ool district's expert witness, Dr. Rieger. Dr. Rieger s tated that:

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4. The DSM-IV states that: "Bipolar I Disorder is a recurrent disorder - more than 90% of the individuals who have a single Manic Episode go on to have future episodes." Diagnostic and Statist ical Manual of Mental Disorders, 4th Ed., American Psychiatric Associatio n, at 353 (1994).

15There is no doubt in my mind that Ms. Taylor

experienced a biologic psychiatric illness i n which genetic factors play a role. These illnesses can appear even fairly late in life regardless of life events and

stressors...

When I examined Ms. Taylor[,] she had a norm al mental state. Her chronic biological psychia tric illness was obviously well controlled by medication. If she

continues to take her medications as instruc ted[,] she

will be able to work. She is now not at all disabled from a psychiatric point of view... If she were s omehow not compliant with the medication[,] she might r elapse into psychosis and then might become disabled. Theoretically there is a very small chance t hat she could develop another psychotic break even w hile being properly treated.

App. vol. I at 157 and 159.

The District Court placed great weight on the fact that Dr. Rieger said that Taylor "might relapse" if she ceased taking medication. Given that both parties' experts agree that Taylor's condition is chronic, we conclude tha t the District Court erred in reasoning that Taylor's con dition could be temporary. We would add that Dr. Sonnenber g stated that without medication Taylor's symptoms "a re likely to be exhibited," and nothing in Dr. Rieger' s report suggests that it is likely Taylor would be fine wit hout medication. When both parties' experts agree that t he plaintiff's condition is chronic, both agree that t he plaintiff could relapse without medication, and the plaintiff 's treating physician has decided the risk of relapse is serious enough to warrant having the plaintiff continue tak ing a drug that imposes significant burdens, the plaintif f has established that her condition is not temporary. 5

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5. Although the evidence cited above is sufficient for our holding, we

note that a leading text on bipolar disorder states: "We wish to emphasize the common clinical belief that the great majority of b ipolar patients withdrawn from lithium will eventually relapse. The wisdom of this assumption is reinforced by long-term follow-up stu dies... The Page study involved 101 bipolar and recurrent unipolar p atients maintained on lithium for a median of 13 years. Of the 31 who stopped lithium, all but 2 suffered relapses, and those 2 were unipolar patients; that is, all bipolar patient who discontinued lithium relapsed." Frederick Goodwin and Kay Redfield Jamison, Manic-Depressive Illness, Oxford University Press, at 680-81 (1990). See also Julien, supra not e 1, at 232.

16We have previously held that a plaintiff with epile psy,

whose condition had been controlled for thirty year s with medication, could still demonstrate that he had a d isability. Matczak, 136 F.3d at 937-38. The likelihood of rela pse was never an issue; it was simply assumed reasonably en ough that if continuing drug treatment was medically ind icated, the condition persisted. We would add that the EEOC has said chronic, episodic conditions can be substantia lly limiting, see 2 EEOC Compliance Manual, Enforcement Guidance for Psychiatric Disabilities, at 9 (March 25, 1997), and indeed, it seems reasonable to say that conditi ons that cause periodic, substantial shifts in a person's ab ility to function can be highly disabling. Many activities i n life, and certainly most jobs, require a consistent level of functioning. A career interrupted by hospitalizatio n, especially hospitalization punctuated by strange, embarrassing behavior, is not an easy one.

Should our discussion above create any doubt, we wa nt to emphasize that even once a plaintiff establishes that her condition persists or is chronic, the plaintiff sti ll must show, as we specifically required in Matczak, 136 F .3d at 938, that her persistent condition substantially li mits a major life activity when left untreated. Not every chronic condition is a disability under the ADA. But as dis cussed above, Taylor has shown that the untreated symptoms of her chronic illness do substantially limit a number of her major life activities. The school district's own ex pert agreed that Taylor had bipolar disorder which caused "an a cute psychotic break, necessitating hospitalization," an d that Taylor "clearly had paranoid delusions" and was "hyperactive and euphoric" before and during her hospitalization. App. vol. I at 156 and 159.

Because we find that the undisputed evidence in the record shows that Taylor had a disability, we belie ve that judgment should be entered in Taylor's favor on thi s issue. The school district had a full opportunity to prese nt its side on this question, and both parties' experts agree o n the

essential facts. See Fabric v. Provident Life & Acc ident Insurance Co., 115 F.3d 908, 915 (11th Cir. 1997), cert. denied, 118 S.Ct. 1563 (1998)("Summary judgment in favor of a non-moving party has become an accepted method for

17an appellate court to expedite litigation... [Howev er,] [i]f a

party did not have an opportunity to present his si de of a dispute, granting summary judgment for a non-moving party would be improper.")(citations omitted). See also 10A. C. Wright, A. Miller, and M. Kane, Federal Practice and Procedure: Civil 3d S 2716 at 292-93 (1998).

C. Reasonable accommodations

Having concluded that Taylor was entitled to judgme nt as a matter of law that she has a disability under 42 U.S.C. S 12102(2)(A), we must consider whether the school district failed to provide reasonable accommodations. On thi s issue, we find that the District Court applied the wrong l egal standards and that under the correct standard, disp utes of material fact remain, requiring remand.

As stated above, an employer commits unlawful discrimination under the ADA if the employer does"n ot mak[e] reasonable accommodations to the known physi cal or mental limitations of an otherwise qualified ind ividual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodati on would impose an undue hardship on the operation of the business of [the employer]." 42 U.S.C.S 12112(b)(5) (A).

In evaluating whether a plaintiff is a "qualified i ndividual with a disability," we have held that a plaintiff m ust "satisf[y] the prerequisites for the position, such as possessing the appropriate educational background, employment experience, skills, licenses, etc." and, the plaintiff must be able to "perform the essential fu nctions of the position held or desired, with or without reaso nable accommodations." Gaul, 134 F.3d at 580 (quoting, 29 C.F.R. Pt. 1630, App. S 1630.2(m) at 351). Because Taylor held her position as secretary to the principal for many years, receiving high praise, there is no serious d ispute that she satisfies the prerequisites for the position. T he critical issue is whether Taylor could, with reasonable accommodations, perform the essential functions of her job following her return from her hospitalization.

The Interactive Process

The ADA's regulations state that: "To determine the appropriate reasonable accommodation it may be nece ssary

18for the [employer] to initiate an informal, interac tive process

with the [employee] in need of accommodation. This process should identify the precise limitations resulting f rom the disability and the potential reasonable accommodati ons that could overcome those limitations." 29 C.F.R. S 1630.2(o)(3). Similarly, the EEOC's interpretive guidelines provide that: "Once a qualified individual with a d isability has requested provision of a reasonable accommodati on, the employer must make a reasonable effort to deter mine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both th e employer and the [employee] with a disability." 29 C.F.R. Pt . 1630, App. S 1630.9 at 359.

We have previously recognized both this regulation and the EEOC's interpretive guideline and applied them to a claim brought under the Rehabilitation Act, 29 U.S. C. S 701, et seq. Mengine v. Runyon, 114 F.3d 415, 419 -20 (3d Cir. 1997); see also Deane v. Pocono Medical Center , 142 F.3d 138, 149 (3d Cir. 1998)(en banc).6 Based on t he regulation and interpretive guidelines, we held in Mengine that "both parties have a duty to assist in the sea rch for appropriate reasonable accommodation and to act in good

faith." Id. We noted that other circuits have taken this view. See, e.g., Beck v. University of Wisconsin Bd. of R egents, 75 F.3d 1130, 1135 (7th Cir. 1996)("A party that obstr ucts or delays the interactive process is not acting in goo d faith. A party that fails to communicate, by way of initiati on or response, may also be acting in bad faith."); Taylo r v. Principal Financial Group, Inc., 93 F.3d 155, 165 ( 5th Cir. 1996)(The "employee's initial request for an accommodation... triggers the employer's obligation to participate in the interactive process...").

In Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281 (7th Cir. 1996) an employee diagnosed wit h

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6. While Mengine involved a claim under the Rehabil itation Act, the regulation and interpretive guidelines applied in t he case were from the ADA. Furthermore, according to 42 U.S.C. S 12201(a) , the ADA should not be construed to apply a lesser standard than th e Rehabilitation Act. See also Bragdon v. Abbott, 118 S.Ct. 2196, 2202 (1 998).

19paranoid schizophrenia and bipolar disorder sought to

return from an extended disability leave to his job as a custodian. His employer informed him that he would be reassigned to the largest school operated by Fort W ayne Community Schools, and added that he would not rece ive any special accommodation. The employer then instru cted the plaintiff to take a physical and report to work or else he would be terminated. After touring the new school w ith the custodial foreman, the plaintiff told his employer that he did not think he was equal to the task but said he was not resigning. The plaintiff subsequently failed to tak e the physical or report to work although he did have his psychiatrist send a letter to the employer which st ated that due to the plaintiff 's illness, it would be in the plaintiff 's

best interest to work at a less stressful school. T he employer never responded and terminated the plainti ff. The Seventh Circuit, reversing summary judgment for the employer, concluded that there was a genuine disput e as to whether the employer engaged in the interactive pro cess of seeking accommodations.

We agree with the Seventh Circuit which held that:

An employee's request for reasonable accommo dation requires a great deal of communication betwe en the employee and employer... [B]oth parties bear responsibility for determining what accommod ation is necessary... `[N]either party should be able to cause a breakdown in the process for the purpose of either avoiding or inflicting liability. Rather, co urts should look for signs of failure to participate in good faith or failure by one of the parties to help the ot her party determine what specific accommodations are necessary. A party that obstructs or delays the interactive process is not acting in good fa ith. A party that fails to communicate, by way of initiat ion or response, may also be acting in bad faith. I n essence, courts should attempt to isolate the cause o f the breakdown and then assign responsibility.'

Bultemeyer, 100 F.3d at 1285 (quoting Beck, 75 F.3d at 1135).

Our analysis of the interactive process in the pres ent case is divided into two steps: first, we will clar ify what

20notice must be given to the employer to trigger the

employer's obligations under the interactive proces s, and second, we will elaborate on the employee's and the employer's duties once the interactive process come s into play.

1. Notice of the disability and request for ac comm odation

The first question we must address is who must make the request for accommodation and what form that re quest must take. The EEOC compliance manual provides that "a family member, friend, health professional, or othe r representative may request a reasonable accommodati on on behalf of an individual with a disability." 2 EEOC Compliance Manual, Enforcement Guidance for Psychia tric Disabilities, at 20-21. Likewise, in Bultemeyer the Seventh Circuit allowed that an employee's psychiatrist cou ld make a request for accommodations on behalf of an employ ee. Bultemeyer, 100 F.3d at 1286. In our case, therefor e, Taylor's son could make the initial request for

accommodations.

The EEOC's manual further provides that "[r]equests for

reasonable accommodations do not need to be in writ ing," 2 EEOC Compliance Manual, Enforcement Guidance for Psychiatric Disabilities, at 21, and "[t]o request accommodation, an individual may use `plain English ' and need not mention the ADA or use the phrase `reasona ble

accommodation.' " Id. at 19. The Seventh Circuit sa id that "properly participating in the interactive process means that an employer cannot expect an employee to read its mind and know that he or she must specifically say` I want reasonable accommodation,' particularly when the employee has a mental illness." Bultemeyer, 100 F.3 d at

1286.

The EEOC's manual makes clear, however, that while the notice does not have to be in writing, be made by t he employee, or formally invoke the magic words "reaso nable accommodation," the notice nonetheless must make cl ear that the employee wants assistance for his or her d isability. In other words, the employer must know of both the disability and the employee's desire for accommodat ions for that disability.

21These rules are consistent with the statute which s ays

that the employer must make reasonable accommodatio ns to an employee's "known" disability. 42 U.S.C. S 12112(b)(5)(A). What matters under the ADA are no t formalisms about the manner of the request, but whe ther the employee or a representative for the employee p rovides the employer with enough information that, under th e circumstances, the employer can be fairly said to k now of both the disability and desire for an accommodation

.

What information the employee's initial notice must include depends on what the employer knows. In Tayl or v. Principal Financial Group, Inc., 93 F.3d 155 (5th C ir. 1996), an employee whose job performance had fallen off mentioned to his employer that he was diagnosed wit h bipolar disorder. Nothing the employee had done sug gested the nature of his illness. When the employer, who s aid he did not know about the illness, asked the employee if he was okay, the employee responded that he was. The employee never offered further information about hi s disorder and, even more significantly, could not co nfirm that he ever explicitly asked for an accommodation or help of any sort. Under these circumstances, the employe e has not been given sufficient notice to trigger the emp loyer's duty to engage in the interactive process. Cf. Cran dall v. Paralyzed Veterans of America, 146 F.3d 894 (D.C. C ir. 1998)(Employee with bipolar disorder could not stat e a claim under the Rehabilitation Act when he never to ld his employer of his mental illness and never requested accommodations.). Employers cannot assume employees

are disabled and need accommodations.

Our case differs markedly. It is undisputed that Ta ylor became psychotic at work, that the school district knew she was hospitalized immediately thereafter, and that C oastal Plain Hospital contacted the school district by let ter about Taylor's hospitalization and provided a phone numbe r to answer questions. It is also undisputed that Ferrar a wrote a note saying she planned to contact Taylor's docto rs and that she wrote a letter to the superintendent, stat ing that "Phoenixville Psychiatric Associates... will monito r [Taylor's] Blood Lithium [sic] levels. It was stressed that sh e must

maintain and continue her medication." The school d istrict

22also does not deny that it required Taylor to submi t a note

from Dr. Sonnenberg, further demonstrating that the school district knew how to get information from Taylor wh en it deemed it necessary.

Based on this evidence, the school district had mor e than enough information to put it on notice that Taylor might have a disability, and therefore, in order to trigg er the school district's obligation to participate in the interactive process, Taylor or her representative only needed t o request accommodation. In light of the undisputed backgroun d information putting the school district on notice t hat Taylor had recently developed a serious disability, we thi nk it would be especially inappropriate to insist that Ta ylor's son must have specifically invoked the ADA or used the words "reasonable accommodation" when he requested accommodations. Under the circumstances, it hardly should have come as a surprise that Taylor would wa nt some accommodations, particularly as the successive disciplinary meetings began to mount for an employe e who had previously performed very well. We would add th at the school district had ample time to seek legal advice on its obligation to provide reasonable accommodations. Regardless, Taylor's son has submitted an affidavit saying that not only did he provide diagnostic and treatme nt information to the school district, he also asked f or "accommodations" for his mother.

Menzel's affidavit asserts that she did not "learn the specifics" of Taylor's disorder until after this li tigation was started. Ferrara's affidavit states that: "To my kn owledge, at no time was I or anyone else at the School District aware of Plaintiff 's alleged diagnosis of bipolar disord er or the details or frequency of any treatments she may have been receiving after returning from Coastal Plain until after the

current lawsuit was filed."

We want to make clear that the school district's du ty to participate in the interactive process is triggered if Taylor notified either Menzel who was Taylor's supervisor and East Pikeland's principal, or Ferrara, the school distri ct's administrative assistant for personnel. Thus, if Ta ylor's son requested accommodations from Ferrara, then the sch ool district would have a duty to participate in the in teractive

23process regardless of how much Menzel knew about

Taylor's disorder.

We would add that to trigger the school district's duty to participate in the interactive process, it is not e ssential that Ferrara or Taylor knew the specific name of Taylor' s condition although Taylor's son has created a factu al dispute on this issue by saying that he provided Fe rrara with diagnostic and treatment information. Suffice it to say that there is no genuine dispute that the school di strict was aware that Taylor exhibited serious psychiatric pro blems and those problems were severe enough to require he r to be hospitalized for roughly three weeks. Following Tay lor's discharge from the hospital, the school district kn ew that Phoenixville Psychiatric Associates monitored the l ithium Taylor was taking and that Taylor continued to see a psychiatrist. Taylor also provided the school distr ict with a number of avenues for obtaining further information from her doctors, avenues that the school district used. If there was any further information that the school distric t felt it needed to justify an accommodation, it was incumben t on

the school district to ask for it. As the Seventh C ircuit has said, "[t]he employer has to meet the employee half -way." Bultemeyer, 100 F.3d at 1285. To raise the bar for triggering the interactive process any further woul d essentially nullify the process.

Once the employer knows of the disability and the employee's desire for accommodations, it makes sens e to place the burden on the employer to request additio nal information that the employer believes it needs. Di sabled employees, especially those with psychiatric disabi lities, may have good reasons for not wanting to reveal unnecessarily every detail of their medical records because much of the information may be irrelevant to identi fying and justifying accommodations, could be embarrassin g, and might actually exacerbate workplace prejudice. An employer does not need to know the intimate details of a bipolar employee's marital life, for example, in or der to identify or justify an accommodation such as a temp orary transfer to a less demanding position.

Another reason for placing some burden on the emplo yer is that, as the Seventh Circuit recognized in Bulte meyer, an

24employee with a mental illness may have difficulty

effectively relaying medical information about his or her condition, particularly when the symptoms are flari ng and

reasonable accommodations are needed. Id. See also Criado v. IBM Corp., 145 F.3d 437, 444 (1st Cir. 1998)(Whe n an employer terminated an employee with a mental illne ss due to an alleged miscommunication over a leave of abse nce, a jury could find that the employer failed to live up to its responsibility to help find accommodations.). It is worth noting that Taylor's hospital records specifically stated that at the time of her hospitalization, she "lacked ins ight" into her condition and believed her only problem was"acu te

stress."

2. Application of the interactive process foll owin g adequate

notice

Viewing the evidence in the light most favorable to Taylor, we believe that a reasonable jury could conclude, b ased on the evidence presented thus far, that the school di strict did not meet its burden under the interactive process. Taylor's version of the case can be stated succinctly as fol lows: After Menzel and Ferrara watched Taylor become manic and require hospitalization, the two decided that Menze l should begin documenting Taylor's every error within days of her return, despite the fact that Taylor's son requeste d accommodations, informed them about Taylor's condit ion, and provided them with the means to obtain more information if needed. Notwithstanding Taylor's pre vious twenty years of strong performance and the school d istrict's clear notice of Taylor's disability and desire for accommodations, the school district offered no accommodations or assistance in finding them, made Taylor's job more difficult, and simply sat back an d continued to document her failures. A reasonable ju ry could conclude that the school district did not eng age in an interactive process of seeking accommodations and i s responsible for the breakdown in the process.

The school district emphasizes that the only accommodation Taylor specifically requested was tra nsfer to another position, which Taylor later conceded wa s not feasible. We do not think that it is fatal to Taylo r's claim that her son did not request a specific accommodati on or

25that Taylor's request in March of 1994 was for an

accommodation that she admitted was not possible. T he interactive process, as its name implies, requires the employer to take some initiative. In Bultemeyer , t he court explained that: "If the note [from the psychiatrist requesting accommodation] was too ambiguous and [the employer] did not know what Bultemeyer wanted, [the employer] eas ily could have called [the psychiatrist] for a clarific ation." Bultemeyer, 100 F.3d at 1285. The interactive proce ss would have little meaning if it was interpreted to allow employers, in the face of a request for accommodati on, simply to sit back passively, offer nothing, and th en, in post-termination litigation, try to knock down ever y specific

accommodation as too burdensome. That's not the proactive process intended: it does not help avoid litigation by bringing the parties to a negotiated settlement, 7 and it unfairly exploits the employee's comparative lack o f information about what accommodations the employer might allow. In addition, in some cases courts may be better positioned to judge whether the employer met with the employee in good faith than to judge how burden some a particular accommodation really is.

The ADA's regulations make clear that the purpose o f the interactive process is to determine the appropriate accommodations: "This process should identify the p recise limitations resulting from the disability and the p otential

reasonable accommodations that could overcome those limitations." 29 C.F.R. S 1630.2(o)(3). Therefore, it would make little sense to insist that the employee must have

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7. In Deane we emphasized the value of the interact ive process for avoiding litigation: "we take this opportunity to o bserve that this protracted (and very much ongoing) litigation would likely have been unnecessary had the parties taken seriously the pre cepts announced in our opinion in Mengine." Deane, 142 F.3d at 149 (ci tation omitted). We would add that the interactive process can be thoug ht of as a less formal, less costly form of mediation. See 67 U.S.L .W. 2255 (noting the value of mediated settlement in ADA cases). Mediate d settlements, the article explains, are cheaper than litigation, can help preserve confidentiality, allow the employee to stay on the job, and avoid monetary damages for an employer's initially hostil e responses to requests for accommodations. The interactive proces s achieves these same goals even more effectively.

26arrived at the end product of the interactive proce ss before

the employer has a duty to participate in that proc ess. The EEOC's interpretive guidelines squarely place some of the burden on the employer by stating that "the employe r must make a reasonable effort to determine the appropria te accommodation." 29 C.F.R. Pt. 1630, App. S 1630.9 a t 359.

As we explained in Mengine, the process must be interactive because each party holds information th e other does not have or cannot easily obtain. We noted tha t "employers will not always know what kind of work t he worker with the disability can do, and conversely, the worker may not be aware of the range of available employment opportunities, especially in a large com pany. Thus, the interactive process may often lead to the identification of a suitable position." Mengine, 11 4 F.3d at 420. More specifically, we explained that while an employee who wants a transfer to another position ultimately has the burden of showing that he or she can perform the es sential functions of an open position, the employee does no t have the burden of identifying open positions without th e employer's assistance. "In many cases, an employee will not have the ability or resources to identify a vacant position absent participation by the employer." Mengine, 114 F.3d 420.8 Taylor's concession that she knew of no other open positions, therefore, should not necessarily be the end of

the matter if the school district made no effort to help investigate.

When transfer is not sought, as was presumably the case when Taylor's son first requested accommodations, t he employer likewise will often hold more information than the employee about what adjustments are feasible in the employee's current position. The Seventh Circuit po inted out in Bultemeyer that: "When Bultemeyer worked at North Side High School, a simple adjustment in his duties was

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8. Our opinion in Gaul v. Lucent Technologies, Inc. , 134 F.3d 576 (3d Cir. 1998) should be distinguished because there the emp loyee's proposed accommodation, a transfer whenever he decided he wa s stressed, was unreasonable as a matter of law. If an employee ins ists on a single

accommodation that is unreasonable as a matter of l aw, then the employee will be at fault for the breakdown in the interactive process.

27enough of an accommodation to enable him to work th ere.

But this time, we do not know what might have happe ned, because [the employer] was unwilling to engage in t he interactive process and accommodation him." Bulteme yer, 100 F.3d at 1285.

In short, an employer who has received proper notic e cannot escape its duty to engage in the interactive process simply because the employee did not come forward wi th a reasonable accommodation that would prevail in liti gation. Participation is the obligation of both parties, ho wever, so an employer cannot be faulted if after conferring w ith the employee to find possible accommodations, the emplo yee then fails to supply information that the employer needs or does not answer the employer's request for more det ailed proposals. And while a specific request may not alw ays be necessary to initiate the process, it certainly hel ps bolster the employee's claim that the employer knew that th e employee wanted accommodations.

The interactive process does not dictate that any particular concession must be made by the employer; nor does the process remove the employee's burden of sh owing that a particular accommodation rejected by the emp loyer would have made the employee qualified to perform t he job's essential functions. See Walton v. Mental Hea lth Association of Southeastern Pennsylvania, No. 97-20 00, 1999 WL 86818, at *8 (3d Cir. Feb. 23, 1999). All t he interactive process requires is that employers make a goodfaith effort to seek accommodations.

Employers can show their good faith in a number of ways, such as taking steps like the following: meet with the employee who requests an accommodation, request

information about the condition and what limitation s the employee has, ask the employee what he or she speci fically wants, show some sign of having considered employee 's request, and offer and discuss available alternativ es when the request is too burdensome. These steps are cons istent with the recommendations in the EEOC's interpretive guideline. See 29 C.F.R. Pt. 1630, App.S 1630.9 at 359-61. We do not think this process is especially burdenso me. As we found in Mengine, the Postal Service engaged in good faith in the interactive process when it exchanged a number

28of letters with an employee in an effort to identif y a vacant

position for reassignment and sent the employee mul tiple job descriptions of vacant positions. Mengine, 114 F.3d at

421.9

The school district can be understood as arguing implicitly that it did not have to participate in t he interactive process because there was no feasible accommodation that would have made Taylor capable o f performing the essential functions of her job. In M engine we stated that "if reasonable accommodation is impossi ble, nothing more than communication of this fact is req uired. Nonetheless, if an employer fails to engage in the interactive process, it may not discover a way in which the emp loyee's disability could have been reasonably accommodated, thereby risking violation of the Rehabilitation Act ." Mengine, 114 F.3d at 420-21. We explained that whether an employer's duty to participate in the interactive p rocess has been discharged will often be a matter of "timing": i.e., the employer will almost always have to participate in the interactive process to some extent before it will b e clear that it is impossible to find an accommodation that woul d allow the employee to perform the essential functions of a job.

Put differently, because employers have a duty to h elp the disabled employee devise accommodations, an emp loyer who acts in bad faith in the interactive process wi ll be liable if the jury can reasonably conclude that the employ ee would have been able to perform the job with accommodations. In making that determination, the j ury is entitled to bear in mind that had the employer part icipated in good faith, there may have been other, unmention ed possible accommodations. On the other hand, as we

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9. Employers may find it useful to take advantage o f the Job Accommodation Network although we do not in any way suggest that employers are obliged to make use of this service. The EEOC compliance manual explains that: "The Job Accommodation Networ k (JAN) provides advice free-of-charge to employers and employees co ntemplating

reasonable accommodation. JAN is a service of the P resident's Committee on Employment of People with Disabilities which, in turn, is funded by the U.S. Department of Labor. JAN can be reached at 1-800- ADA-WORK." EEOC Compliance Manual, Enforcement Guid ance for Psychiatric Disabilities, at 23, n. 56.

29explained in Mengine, "[t]he ADA, as far as we are aware, is

not intended to punish employers for behaving callo usly if, in fact, no accommodation for the employee's disabi lity could reasonably have been made." Mengine, 114 F.3d at 420 (quoting, Willis v. Conopco, Inc., 108 F.3d 282 , 285 (11th Cir. 1997)).

When an employee has evidence that the employer did not act in good faith in the interactive process, h owever, we will not readily decide on summary judgment that accommodation was not possible and the employer's b ad

faith could have no effect. To assume that accommod ation would fail regardless of the employer's bad faith w ould effectively eliminate the requirement that employer s must participate in the interactive process. An employer who acted in bad faith would be in essentially the same , if not better, position than one who participated; that is , both employers would be arguing that the employee failed to find an accommodation making him or her able to perform the essential function of the job. The less the employe r participated, the easier this would become, and as a result, the requirement that employers participate in the interactive process would be toothless. Thus, where there is a genuine dispute about whether the employer acted in good faith, summary judgment will typically be prec luded. Cf. Hendrick-Robinson v. Excel Corp., 154 F.3d 685 (7th Cir. 1998)(Refusing to grant an employer summary judgmen t because it may not have participated in good faith in finding accommodations); Baert v. Euclid Beverage, Ltd., 149 F.3d 626 (7th Cir. 1998)(Refusing to grant an e mployer summary judgment because disputes of fact remained about which party caused the breakdown in the inter active process).10 When the disability involved is one tha t is

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10. The Ninth Circuit has expressed disagreement wi th our decision in Mengine and concluded that employers are not oblige d to participate in the interactive process. See Barnett v. U.S. Air, I nc., 157 F.3d 744, 753 (9th Cir. 1998). The majority in Barnett worried th at an employer could be held liable for failing to engage in the interac tive process even though the employee was successfully accommodated. We beli eve that where an employer has successfully made reasonable accommoda tions, a court can conclude as a matter of law that the employer d id not act in bad faith. The Barnett majority also objected that it w as not clear when an

30heavily stigmatized in our society - as is true whe n the

employee is voluntarily or involuntarily committed to a mental institution - courts should be especially wa ry on summary judgment of underestimating how well an employee might perform with accommodations or how much the employer's bad faith may have hindered the process of finding accommodations.

In Taylor's case we believe that there are genuine disputes about the school district's good faith par ticipation in the interactive process, and assuming the school district did act in bad faith, nothing the school district p oints to demonstrates that it would be impossible to accommo date Taylor. Prior to her hospitalization, Taylor perfor med her job effectively for nearly two decades. But after b ecoming disabled and seeking accommodations, she has presen ted evidence that the school district made no response to her request and instead increased the difficulty of her job. Given the evidence Taylor presents of bad faith on the school district's part, we will not decide on summa ry judgment that it would have been fruitless for the school district to make some modest and fairly obvious eff orts to

accommodate.

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employer would incur process liability. Bad faith c an, of course, take many different forms, just as negligence can, precl uding easy statement of a general rule about when bad faith has occurred . However, we believe that jurors should be able to distinguish between s tonewalling and assisting an employee in finding accommodations. Th e fact that there may be some hard cases is hardly unique in law. The Barnett majority's last objection was that 29 C.F.R. S 1630(o)(3) only states that it "may be necessary" for the employer to engage in an interac tive process. But the EEOC's interpretive guidelines state that once an e mployee requests accommodations, the employer "must make a reasonabl e effort to determine the appropriate accommodation." 29 C.F.R. Pt. 1630, App. S 1630.9 at 359. The guidelines continue that in so me instances the interactive process may not be necessary because it is clear to both parties involved what accommodation will work. For example, the guidelines explain that an employee in a wheelchair may want her desk

elevated with blocks so that her wheelchair will sl ide under. No interactive process will be needed here. Id. at 360 . The regulation uses the phrase "may be necessary," in other words, beca use sometimes the necessary accommodation is obvious. We have also re cognized that the process is not necessary in cases where accommodati on is impossible.

31In particular, the school district could have incre ased

Taylor's job responsibilities more slowly, given mo re time to introduce the computer, or communicated less by for mal, written reprimands. The EEOC compliance manual for psychiatric disorders provides that some adjustment s in supervisory methods can qualify as legitimate accommodations.11 The ADA itself specifically provi des that reasonable accommodations can include "job restruct uring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equ ipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the p rovision of qualified readers or interpreters, and other simila r accommodations for individuals with disabilities." 42 U.S.C. S 12111(9)(B).

The fact that Taylor's potential accommodations are modest should not encourage us to dismiss Taylor's claim on summary judgment on the theory that they would b e useless; that would have the bizarre implication th at the more demanding a plaintiff's accommodations were, t he more likely the plaintiff is to survive summary jud gment. Plaintiffs who wish to participate in good faith in the interactive process are more likely to have scaled back their

demands and asked for modest accommodations. More importantly, we think it is worth remembering that sometimes comparatively modest accommodations can r eap large returns in how well a disabled employee perfo rms.

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11. The EEOC compliance manual states that: "Superv isors play a central role in achieving effective reasonable acco mmodations for their employees. In some circumstances, supervisors may b e able to adjust their methods as a reasonable accommodation by, for example, communicating assignments, instructions, or trainin g by the medium that is most effective for a particular individual (e.g., in writing, in conversation, or by electronic mail)." 2 EEOC Compl iance Manual, Enforcement Guidance for Psychiatric Disabilities, at 26. However, the manual continues that "[r]easonable accommodation.. . does not require lowering standards or removing essential functions of the job." Id. at 26, n. 62. We would hasten to add that a disabled emplo yee is not entitled to a supervisor ideally suited to his or her needs. We held in Gaul, for instance, that an employee is not entitled to trans fer whenever the employee deems that his co-workers are causing him inordinate stress.

134 F.3d at 579.

32We want to reiterate the limits of the interactive process.

We are not holding that an employer who has made a good

faith effort to accommodate must be saddled with a secretary who consistently makes typos and fails to deliver messages. Nor do we hold that an employer cannot introduce a new computer system or switch an employ ee to a less forgiving supervisor. What we do hold is tha t an employer, having received adequate notice of an emp loyee's disability and desire for accommodations, cannot fa il to engage the employee in the interactive process offi nding accommodations, increase the disabled employee's jo b responsibilities, and then simply document the empl oyee's

failures.

To show that an employer failed to participate in t he interactive process, a disabled employee must demon strate: 1) the employer knew about the employee's disabilit y; 2) the employee requested accommodations or assistance for his or her disability; 3) the employer did not make a g ood faith effort to assist the employee in seeking accommodat ions; and 4) the employee could have been reasonably accommodated but for the employer's lack of good fa ith. Mengine, 114 F.3d at 420; Bultemeyer, 100 F.3d at 1 285; Taylor, 93 F.3d at 165.

We believe that a reasonable jury could conclude th at Taylor requested accommodations, that the school di strict made no effort to help Taylor find accommodations a nd was responsible for the breakdown in the process, and t hat

there were accommodations that the school district could have provided that would have made Taylor able to p erform the essential functions of her job. If a jury concl udes that the school district was not responsible for the bre akdown in the interactive process, Taylor must demonstrate th at a specific, reasonable accommodation would have allow ed her to perform the essential functions of her job.

We have viewed the evidence in the light most favor able to Taylor, as we must on summary judgment. The scho ol district is, of course, free on remand to argue tha t it did not receive notice of Taylor's request for accommodatio n, that it tried to assist Taylor in seeking accommodations, o r, assuming the school district was responsible for th e breakdown in the process, that no accommodation wou ld

33have allowed Taylor to perform the essential functi ons of

her job.12

IV

For the foregoing reasons, we will reverse the Marc h 20, 1998 grant of summary judgment by the District Cour t and remand the case for further proceedings.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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12. The District Court treated Taylor's case as pos sibly raising a disparate-treatment claim. Because Taylor represent s on appeal that she did not intend to raise such a claim, we need not r each the issue.

34