1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-5-1999

Taylor v. Phoenixville Sch Dst

Precedential or Non-Precedential:

Docket 98-1273

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Recommended Citation

"Taylor v. Phoenixville Sch Dst" (1999). 1999 Decisions. Paper 89.

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Filed 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 with 

Disabilities Act of 1990 (ADA), 42 U.S.C. S 12101 et 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 illness. The 

District Court granted summary judgment for the school 

district, reasoning that Taylor's mental illness, bipolar 

disorder, or manic depression as it is sometimes called, did 

not qualify as a disability under the ADA. Alternatively, 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, consequently, 

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 Elementary 

School in the Phoenixville School District. Prior to the fall 

of 1993, Taylor had not received a single disciplinary 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 bipolar 

disorder in late August of 1993, regrettably during the first 

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

her duties at East Pikeland. While Taylor was at work 

during that week, she began acting strangely, alarming 

Menzel and Linda Ferrara, the school district's 

administrative assistant for personnel. Menzel and Ferrara 

were so disturbed by Taylor's behavior that they doubted 

Taylor's capacity to leave on a train by herself and had 

someone at the school district contact Taylor's son, Mark 

Taylor. He soon drove his mother to Coastal Plain Hospital, 

a psychiatric institution in Rocky Mount, North Carolina, 

where she was admitted as an in-patient on August 31, 

1993. 

Hospital records indicate that Taylor had become manic 

and was increasingly agitated and psychotic. According to 

the records, Taylor hid herself at the train station, believing 

that someone was after her, and tried to disguise herself by 

covering her head with a scarf. On the car ride from 

Pennsylvania to the hospital, she was delusional and 

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 believed she 

was being admitted due to "acute stress." The school 

district's own expert, Dr. Rieger, agreed that during Taylor's 

hospitalization, she "clearly had paranoid delusions" and 

was hyperactive and psychotic. 

Taylor was treated by two psychiatrists at the hospital 

who diagnosed her illness as bipolar disorder and treated 

her with lithium carbonate and an antipsychotic drug, 

Navane, when lithium alone was insufficient. Once Taylor's 

symptoms were brought under control by the combination 

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 her 

discharge from the hospital, Taylor has continued to take 

lithium, see Dr. Sonnenberg, and receive the necessary, 

periodic blood tests.1 

_________________________________________________________________ 

1. One widely-used text explains that: "Because lithium has an extremely 

narrow therapeutic range, blood levels of the drug must be closely 

 3 
Taylor'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 that his 

mother would be absent from work because she had been 

diagnosed with bipolar disorder and required 

hospitalization. Mark Taylor also asserted in his affidavit 

that during a phone call on October 8, one week before 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 affidavit 

adds that he provided Ferrara with the information he 

received from his mother's doctors "including diagnosis and 

treatment information and medications." Coastal Plain 

Hospital itself sent a letter to the school district on 

September 13, 1993, identifying one of Taylor's physicians 

and providing a phone number to address any additional 

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 district had 

_________________________________________________________________ 

monitored. The occurrence and intensity of side effects are, in most 

cases, directly related to plasma concentrations of lithium... The main 

toxic effects involve the gastrointestinal tract, the kidneys, the 

thyroid, 

the cardiovascular system, the skin, and the nervous system." Robert M. 

Julien, A Primer of Drug Action, 8th ed., W.H. Freeman & Co., at 229-30 

(1998). The Physicians' Desk Reference, 53rd ed., Medical Economics 

Co., at 2750 (1999) likewise states that: "Lithium toxicity is closely 

related to serum lithium levels and can occur at doses close to 

therapeutic levels." Both authorities state that when the amount of 

lithium in the blood is near and above the therapeutic range, side effects 

can include nausea, vomiting, abdominal pain, slight tremor, lethargy, 

impaired concentration, dizziness, slurred speech, ataxia, muscle 

weakness, and nystagmus. Julien adds that memory problems and 

weight gain are also frequent complaints with continued treatment. As 

plasma levels rise higher, toxic effects include muscle rigidity, coma, 

renal failure, cardiac arrhythmias, and death. Blood 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 amounts of salt (such as 

through sweating), lithium blood levels rise and intoxication may 

inadvertently follow." Id. at 228. 

 4 
other contact with Taylor's doctors because before Taylor 

was permitted to return to work, the school district 

required her to submit a note from Dr. Sonnenberg saying 

that Taylor was no longer disabled. Even prior to Mark 

Taylor's October 8th phone call, Ferrara sent a letter to the 

school district's superintendent which stated that:

 Mrs. Taylor has been released from the Coastal 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-patient care in 

 Phoenixville through the Phoenixville Psychiatric 

 Associates. They will monitor her Blood Lithium [sic] 

 levels. It was stressed that she must maintain and 

 continue her medication. He felt, as well as the doctor, 

 that the first week should be easing her transition 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 asserting that: 

"I did not learn the specifics of the Plaintiff's alleged 

condition (i.e., bipolar disorder) until after reading a 

newspaper article describing her filing of the current 

lawsuit." App. vol. II at 2. Ferrara has also submitted an 

affidavit asserting that "at no time was I or anyone else at 

the School District aware of Plaintiff's alleged diagnosis of 

bipolar disorder 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." 

App. vol. II at 50. 

After Taylor provided the note from Dr. Sonnenberg, she 

resumed work on October 15, 1993 although, as Ferrara's 

letter indicated, Taylor was only authorized to work half 

days for the first week. Prior to her hospitalization, Taylor 

had received high praise for her performance. In June of 

1993, about two months before Taylor's hospitalization, the 

outgoing principal, Dr. Herron, wrote that Taylor"excels in 

all aspects" of her job, was a "credit to our school," and "a 

tribute to excellence." App. vol. I at 86. In a subsequent 

letter of recommendation, Dr. Herron again praised Taylor's 

performance without reservation and stated that: 

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

 school family exceeding[ly] well... I felt comfortable in 

 leaving the building, sometimes for an extended 

 amount of time, because of Mrs. Taylor's skills. Indeed, 

 at such times, Mrs. Taylor carried on the full functions 

 of the school as if she herself was capable of running 

 the functions of the building without supervision, and, 

 indeed, in such cases, she was entirely capable of 

 doing so. 

App. vol. I at 87. 

Almost immediately upon Taylor's return to work, 

Menzel, following Ferrara's advice, began documenting 

errors Taylor committed. The errors were then compiled 

into a bullet-format list, the list was presented to Taylor, 

and soon thereafter Menzel and Ferrara would call Taylor 

into a disciplinary meeting and offer her a chance to rebut 

the charges. A representative from Taylor's union also 

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 four days 

after Taylor's return to work and while she was still 

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 shortly 

before Taylor was terminated. Over the course of the 

disciplinary meetings, Taylor disputed some charges and 

tried to explain others, but as 1994 wore on, Menzel 

documented many errors that Taylor did not contest, and 

the interpersonal friction between Menzel and Taylor 

continued unabated. Disciplinary notices during this period 

list problems such as missed deadlines, mishandling of 

records, typing errors, interpersonal conflicts, and 

undelivered messages. 

Part of Taylor's complaint about her treatment is that 

Menzel often did not speak to her informally and in-person 

about problems as they arose. Instead, Taylor alleges that 

Menzel documented every misstep, saved letters containing 

typos, photographed Taylor's desk and trash can, as well as 

the inside of the office refrigerator, and waited to confront 

Taylor with the evidence in the disciplinary meetings. 

 6 
Taylor also objects that the school district made her job 

more difficult upon her return from the hospital. First, 

during Taylor's absence, Menzel instituted a number of 

changes in the office: she introduced new office policies, 

created new forms, relocated documents, rearranged 

furniture, threw out Taylor's old filing system, and 

discarded files, including some in Taylor's desk. Taylor 

claims that these changes were disorienting and made it 

much more difficult to accomplish tasks she could easily 

perform before the hospitalization. Of course, Taylor's 

absence coincided with the first weeks Menzel served as 

principal, and thus changes were inevitable and part of 

Menzel's prerogative as a new principal. The gravamen 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 records and 

other data. The school district points out that plans to 

introduce the computers had been underway prior to 

Taylor's hospitalization, and according to an affidavit 

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 to 

dispute that the school district was entitled to switch to 

computers; rather, the thrust of her objection seems to be 

that the school district raised another hurdle by the 

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 return, 

her job description was changed, increasing the number of 

her job responsibilities from 23 to 42. It is not clear from 

the record when these changes were made, how substantial 

they were, or to what extent the new list simply enumerated 

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 significant 

responsibilities and made her return more difficult. 

On September 2, 1994 Taylor received a notice placing 

her on probation for 30 days and informing her that if her 

performance did not improve, she would be terminated. She 

 7 
was in fact discharged on October 28, 1994 although

Taylor's union representative subsequently negotiated with 

the school district to allow Taylor to "retire" and receive 

some retirement benefits. Since her termination, Taylor has 

applied at different times for unemployment benefits 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 claim 

pursuant to 28 U.S.C. S 1367. We have appellate 

jurisdiction pursuant to 28 U.S.C. S 1291. Our review of a 

district court's grant of summary judgment is plenary. 

Olson v. General Electric Astrospace, 101 F.3d 947, 951 (3d 

Cir. 1996). In evaluating the school district's motion for 

summary judgment, we must determine whether there are 

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 district was 

entitled to judgment as a matter of law. See Fed.R.Civ.P. 

56; Celotex Corporation v. Catrett, 477 U.S. 317, 322-23, 

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 individual in 

regard to job application procedures, the hiring, 

advancement, or discharge of employees, employee 

compensation, job training, and other terms, conditions, 

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 individual 

holds or desires." 42 U.S.C. S 12111(8). A"disability" is 

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

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 case of 

discrimination under the ADA, the plaintiff must show: "(1) 

he is a disabled person within the meaning of the ADA; (2) 

he is otherwise qualified to perform the essential functions 

of the job, with or without reasonable accommodations 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. 1998) 

(citing, Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996)). 

Discrimination under the ADA encompasses not only 

adverse actions motivated by prejudice and fear of 

disabilities, but also includes failing to make reasonable 

accommodations of disabilities. The ADA specifies that an 

employer discriminates against a qualified individual with a 

disability when the employer does "not mak[e] reasonable 

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 has a 

disability under the ADA, we mention that we will only 

discuss Taylor's ADA claim because our analysis of an ADA 

claim applies equally to a PHRA claim. Kelly v. Drexel 

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 has a 

disability if she has a mental impairment that substantially 

limits a major life activity, has a record of such an 

impairment, or is regarded as having such an impairment. 

42 U.S.C. S 12102(2). Taylor argues that she can satisfy 

each of these standards, but because we conclude that she 

has a mental impairment that substantially limits a major 

life activity, we need not reach the other two grounds. 

 9 
No one disputes that bipolar disorder counts as a mental 

impairment under the ADA. The ADA's regulations define 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 District Court 

agreed that bipolar disorder clearly qualifies as a "mental 

impairment," the District Court nonetheless concluded that 

Taylor's impairment did not substantially limit one of her 

major life activities. Our analysis therefore begins with the 

definitions for "substantially limits" and"major life 

activities." 

While we have observed that "[t]he ADA does not define 

`major life activities,' " Kelly, 94 F.3d at 105 (citation 

omitted), the ADA's regulations provide a nonexhaustive list 

of major life activities that includes "functions such as 

caring for oneself, performing manual tasks, walking, 

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 the person 

is either: "(i) Unable to perform a major life activity that the 

average person in the general population can perform; or (ii) 

Significantly restricted as to the condition, manner or 

duration under which an individual can perform a 

particular major life activity as compared to the condition, 

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 regulations 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 or 

expected duration of the impairment; and (iii) The 

permanent or long term impact, or the expected permanent 

or long term impact of or resulting from the impairment." 

29 C.F.R. S 1630.2(j)(2). A separate analysis is applied 

under the regulations to determine when the major life 

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 even more 

fundamental than working, we need not analyze her 

disorder's impact on her ability to work. 

 10 
When someone must be confined to a hospital because

she is psychotic, increasingly agitated, and gripped by 

delusions, it is manifest that her abilities to think, care for 

herself, concentrate, and interact with others are 

substantially limited. As Taylor's records from Coastal Plain 

Hospital document, before Taylor was treated with lithium 

and an antipsychotic drug, she suffered paranoid delusions 

that people were trying to kill her, inducing her to 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 filled with 

"firefighters" there to protect her. Unable to recognize that 

these beliefs were baseless, she explained at the time of her 

admission that she was there for "acute stress." Symptoms 

like these constitute severe limitations in a person's ability 

to think. 

We have previously held that disabilities should be

evaluated based on the plaintiff's unmedicated state. 

Matczak v. Frankford Candy and Chocolate Co., 136 F.3d 

933 (3d Cir. 1997). In Matczak we explained that according 

to the United States Equal Employment Opportunity 

Commission's (EEOC) interpretive guidelines, whether an 

impairment "substantially limits" a major life activity 

should be evaluated "without regard to mitigating measures 

such as medicines, or assistive or prosthetic devices." Id. at 

937 (quoting 29 C.F.R. Pt. 1630, App. S 1630.2(j) at 348). 

We recognized that although the EEOC's interpretive

guidelines are not entitled to the same degree of deference 

as regulations, we give the EEOC's interpretations"a great 

deal of deference since Congress charged the EEOC with 

issuing regulations to implement the ADA." Id. We added 

that "we must give the EEOC's interpretation of its own 

regulations `controlling weight unless it is plainly erroneous 

or inconsistent with the regulation[s].' " Id. (quoting, 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]ersons with 

impairments, such as epilepsy or diabetes, which 

 11 
substantially limit a major life activity are covered under 

the first prong of disability, even if the effects of the 

impairment are controlled by medication." Id. (quoting H.R. 

Rep. No. 101-485(II), at 52 (1990), reprinted in 1990 

U.S.C.C.A.N. 334) See also H.R. Rep. No. 101-485(III), 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 this view 

and held that disabilities should be evaluated based on 

their mitigated state. See Sutton v. United Air Lines, Inc., 

130 F.3d 893, 902 (10th Cir. 1997), cert. granted, 119 S.Ct. 

790 (Jan. 8, 1999). And we are aware that the Supreme 

Court has decided to review Sutton along with two similar 

cases. See Murphy v. United Parcel Service, 141 F.3d 1185 

(10th Cir. 1998)(unpublished table decision), cert. granted, 

119 S.Ct. 790 (Jan. 8, 1999); Kirkingburg v. Albertson'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 the 

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 circuits which 

have considered the issue have held that disabilities should 

be judged based on their unmitigated state. See Arnold v. 

United Parcel Service, Inc., 136 F.3d 854, 857-866 (1st Cir. 

1998); Roth v. Lutheran Gen. Hosp., 57 F.3d 1446, 1454 

(7th Cir. 1995); Doane v. City of Omaha, 115 F.3d 624, 

627-28 (8th Cir. 1997); Holihan v. Lucky Stores, Inc., 87 

F.3d 362, 366 (9th Cir. 1996); Harris v. H & W Contracting 

Co., 102 F.3d 516, 520-21 (11th Cir. 1996); but see

Washington v. HCA Health Services of Texas, Inc., 152 F.3d 

464 (5th Cir. 1998)(only "serious impairments" like

diabetes, epilepsy, and hearing impairments will be

assessed in their unmitigated state; permanent corrections 

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-case 

basis"). Except for the Tenth Circuit, even those circuits 

rejecting the EEOC's rule have allowed that serious

conditions, which we believe Taylor's illness is, should be 

 12 
judged based on their unmitigated state. As the First 

Circuit pointed out in Arnold, 136 F.3d at 861, it makes 

little sense to insist that serious, chronic conditions like 

diabetes, epilepsy, or bipolar disorder cannot be disabilities 

unless they are so poorly controlled that it becomes all but 

inevitable that no reasonable accommodation is possible.2 

_________________________________________________________________ 

2. Employers need not fear that discounting mitigating factors will 

establish a flood of new-found disabilities and demands for 

accommodations. First, many widely-treated conditions simply do not 

significantly restrict a person's functioning as compared to the average 

person's - even when those conditions are left untreated. If, on the other 

hand, a condition is disabling when untreated, but really is fully 

corrected by mitigating measures, then it is very unlikely that employers 

will need to make much in the way of accommodations, for by 

hypothesis, the condition imposes no restrictions on the employee. 

The value of looking to the unmitigated condition is that it allows the 

ADA to encompass serious, chronic conditions like diabetes 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 symptoms of a serious, 

chronic condition are no longer kept in check, they can rapidly become 

totally disabling. As a result, employees with these disabilities would be 

denied the right to accommodations when modest accommodations could 

help them surmount significant although not substantially limiting 

symptoms. And "disability" status would only be achieved when their 

health had deteriorated so precipitously that no reasonable 

accommodation was possible. To take Taylor's case, she would not be 

legally entitled under the ADA to even the most simple 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, chronic conditions 

can turn to the "regarded as disabled" prong to establish a disability and 

obtain accommodations when symptoms or the side effects of treatments 

flare. However, aside from the fact that an employer may not regard the 

employee as disabled, it remains an open question in 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). 

 13 
The District Court concluded that Taylor was not 

disabled because she failed to show that her bipolar 

disorder was more than a temporary condition. Closely 

related to this point was the District Court's alternative 

statement that Taylor did not suffer a disability at 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, we 

want to clarify that Taylor alleges the school district refused 

to accommodate her throughout the period starting 

immediately after she returned to work from the hospital 

and continuing until the date of her termination. Thus, the 

proper inquiry is whether Taylor was disabled during the 

period she says she sought and was denied reasonable 

accommodations. We do not narrow the inquiry and ask 

only whether Taylor was psychotic or had some 

uncontrolled symptoms of her bipolar disorder on the 

specific day she was terminated, for that would vitiate the 

rule that a disability controlled by medication is still a 

disability and would ignore the fact that the alleged failure 

to accommodate began before the termination. 

The District Court's position properly understood seems 

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. The 

trouble with this view is that Taylor provided ample 

evidence that her disability has continued since the date of 

her hospitalization.3 

_________________________________________________________________ 

3. We have previously held that some temporary impairments will not 

qualify as disabilities under the ADA even during the time the 

impairment actively affects the individual. McDonald v. Com. of Pa., Dept. 

of Public Welfare, 62 F.3d 92 (3d Cir. 1995). We explained in McDonald 

that the EEOC's guidelines provide that "temporary, nonchronic 

impairments of short duration, with little or no long 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 the 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 impairment's nature and 

severity, its expected duration, and its long-term impact. Because we 

conclude that Taylor's condition was chronic and substantially limiting, 

we need not delve into the question of which acute conditions are 

excluded from the ADA's definition of a disability.

 14 
The District Court noted that Taylor's records from

Coastal Plain Hospital did not discuss her prognosis 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 psychiatrist of her 

choice in her home town." These statements certainly are 

not inconsistent with Taylor's having a chronic condition, 

and by indicating that her symptoms are currently under 

control and that she will receive further treatment, the 

records at least imply that the condition is ongoing. 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 physician, 

stated that Taylor's bipolar disorder "is not cured but 

controlled with her medication" and "without the medicine 

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 physician. But 

Gaul stated that "[i]t is well settled that treating physicians 

may testify as to any subject relevant to the evaluation and 

treatment of their patients." Id. at 349. At issue in Gaul was 

whether testimony by the plaintiff 's treating physician 

satisfied the New Jersey Supreme Court's holding that 

"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 (1988)). Just 

as the District Court in Gaul deemed admissible the

opinion of a plaintiff 's treating physician, we hold that a 

plaintiff in an ADA case can rely on the testimony of his or 

her treating physician to demonstrate that the plaintiff has 

a disability. 

The District Court also cited the report of the school 

district's expert witness, Dr. Rieger. Dr. Rieger stated that: 

_________________________________________________________________ 

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 Statistical Manual of Mental 

Disorders, 4th Ed., American Psychiatric Association, at 353 (1994). 

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

 experienced a biologic psychiatric illness in 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 normal 

 mental state. Her chronic biological psychiatric illness 

 was obviously well controlled by medication. If she 

 continues to take her medications as instructed[,] she 

 will be able to work. She is now not at all disabled from 

 a psychiatric point of view... If she were somehow not 

 compliant with the medication[,] she might relapse into 

 psychosis and then might become disabled. 

 Theoretically there is a very small chance that she 

 could develop another psychotic break even while 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 that the 

District Court erred in reasoning that Taylor's condition 

could be temporary. We would add that Dr. Sonnenberg 

stated that without medication Taylor's symptoms "are 

likely to be exhibited," and nothing in Dr. Rieger's report 

suggests that it is likely Taylor would be fine without 

medication. When both parties' experts agree that the 

plaintiff's condition is chronic, both agree that the 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 taking a 

drug that imposes significant burdens, the plaintiff has 

established that her condition is not temporary. 5 

_________________________________________________________________ 

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 bipolar patients 

withdrawn from lithium will eventually relapse. The wisdom of this 

assumption is reinforced by long-term follow-up studies... The Page 

study involved 101 bipolar and recurrent unipolar patients 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 note 1, at 232. 

 16 
We have previously held that a plaintiff with epilepsy, 

whose condition had been controlled for thirty years with 

medication, could still demonstrate that he had a disability. 

Matczak, 136 F.3d at 937-38. The likelihood of relapse was 

never an issue; it was simply assumed reasonably enough 

that if continuing drug treatment was medically indicated, 

the condition persisted. We would add that the EEOC has 

said chronic, episodic conditions can be substantially 

limiting, see 2 EEOC Compliance Manual, Enforcement

Guidance for Psychiatric Disabilities, at 9 (March 25, 1997), 

and indeed, it seems reasonable to say that conditions that 

cause periodic, substantial shifts in a person's ability to 

function can be highly disabling. Many activities in life, and 

certainly most jobs, require a consistent level of 

functioning. A career interrupted by hospitalization, 

especially hospitalization punctuated by strange, 

embarrassing behavior, is not an easy one. 

Should our discussion above create any doubt, we want 

to emphasize that even once a plaintiff establishes that her 

condition persists or is chronic, the plaintiff still must 

show, as we specifically required in Matczak, 136 F.3d at 

938, that her persistent condition substantially limits a 

major life activity when left untreated. Not every chronic 

condition is a disability under the ADA. But as discussed 

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 expert agreed 

that Taylor had bipolar disorder which caused "an acute 

psychotic break, necessitating hospitalization," and 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 believe that 

judgment should be entered in Taylor's favor on this issue. 

The school district had a full opportunity to present its side 

on this question, and both parties' experts agree on the 

essential facts. See Fabric v. Provident Life & Accident 

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 

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

party did not have an opportunity to present his side 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 judgment 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 this issue, 

we find that the District Court applied the wrong legal 

standards and that under the correct standard, disputes of 

material fact remain, requiring remand. 

As stated above, an employer commits unlawful 

discrimination under the ADA if the employer does"not 

mak[e] reasonable accommodations to the known physical 

or mental limitations of an otherwise qualified individual 

with a disability who is an applicant or employee, 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). 

In evaluating whether a plaintiff is a "qualified individual 

with a disability," we have held that a plaintiff must 

"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 functions of 

the position held or desired, with or without reasonable 

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 dispute that 

she satisfies the prerequisites for the position. The 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 necessary 

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

with the [employee] in need of accommodation. This process 

should identify the precise limitations resulting from the 

disability and the potential reasonable accommodations 

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 disability 

has requested provision of a reasonable accommodation, 

the employer must make a reasonable effort to determine 

the appropriate accommodation. The appropriate 

reasonable accommodation is best determined through a 

flexible, interactive process that involves both the 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 the 

regulation and interpretive guidelines, we held in Mengine 

that "both parties have a duty to assist in the search 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 Regents, 75 

F.3d 1130, 1135 (7th Cir. 1996)("A party that obstructs or 

delays the interactive process is not acting in good faith. A 

party that fails to communicate, by way of initiation or 

response, may also be acting in bad faith."); Taylor 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 with 

_________________________________________________________________ 

6. While Mengine involved a claim under the Rehabilitation Act, the 

regulation and interpretive guidelines applied in the 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 the Rehabilitation Act. 

See also Bragdon v. Abbott, 118 S.Ct. 2196, 2202 (1998). 

 19 
paranoid 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 Wayne 

Community Schools, and added that he would not receive 

any special accommodation. The employer then instructed 

the plaintiff to take a physical and report to work or else he 

would be terminated. After touring the new school with 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 take the 

physical or report to work although he did have his

psychiatrist send a letter to the employer which stated that 

due to the plaintiff 's illness, it would be in the plaintiff 's 

best interest to work at a less stressful school. The 

employer never responded and terminated the plaintiff. The 

Seventh Circuit, reversing summary judgment for the

employer, concluded that there was a genuine dispute as to 

whether the employer engaged in the interactive process of 

seeking accommodations. 

We agree with the Seventh Circuit which held that: 

 An employee's request for reasonable accommodation 

 requires a great deal of communication between the 

 employee and employer... [B]oth parties bear

 responsibility for determining what accommodation 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, courts should 

 look for signs of failure to participate in good faith or 

 failure by one of the parties to help the other party 

 determine what specific accommodations are 

 necessary. A party that obstructs or delays the 

 interactive process is not acting in good faith. A party 

 that fails to communicate, by way of initiation or 

 response, may also be acting in bad faith. In essence, 

 courts should attempt to isolate the cause of 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 present 

case is divided into two steps: first, we will clarify what 

 20 
notice must be given to the employer to trigger the

employer's obligations under the interactive process, and 

second, we will elaborate on the employee's and the

employer's duties once the interactive process comes into 

play. 

1. Notice of the disability and request for ac commodation 

The first question we must address is who must make

the request for accommodation and what form that request 

must take. The EEOC compliance manual provides that"a 

family member, friend, health professional, or other 

representative may request a reasonable accommodation on 

behalf of an individual with a disability." 2 EEOC 

Compliance Manual, Enforcement Guidance for Psychiatric 

Disabilities, at 20-21. Likewise, in Bultemeyer the Seventh 

Circuit allowed that an employee's psychiatrist could make 

a request for accommodations on behalf of an employee. 

Bultemeyer, 100 F.3d at 1286. In our case, therefore, 

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 writing," 

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 `reasonable 

accommodation.' " Id. at 19. The Seventh Circuit said 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.3d at 

1286. 

The EEOC's manual makes clear, however, that while the 

notice does not have to be in writing, be made by the 

employee, or formally invoke the magic words "reasonable 

accommodation," the notice nonetheless must make clear 

that the employee wants assistance for his or her disability. 

In other words, the employer must know of both the 

disability and the employee's desire for accommodations for 

that disability. 

 21 
These rules are consistent with the statute which says 

that the employer must make reasonable accommodations 

to an employee's "known" disability. 42 U.S.C. 

S 12112(b)(5)(A). What matters under the ADA are not 

formalisms about the manner of the request, but whether 

the employee or a representative for the employee provides 

the employer with enough information that, under the 

circumstances, the employer can be fairly said to know 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 Taylor v. 

Principal Financial Group, Inc., 93 F.3d 155 (5th Cir. 1996), 

an employee whose job performance had fallen off 

mentioned to his employer that he was diagnosed with 

bipolar disorder. Nothing the employee had done suggested 

the nature of his illness. When the employer, who said 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 his 

disorder and, even more significantly, could not confirm 

that he ever explicitly asked for an accommodation or help 

of any sort. Under these circumstances, the employee has 

not been given sufficient notice to trigger the employer's 

duty to engage in the interactive process. Cf. Crandall v. 

Paralyzed Veterans of America, 146 F.3d 894 (D.C. Cir. 

1998)(Employee with bipolar disorder could not state a 

claim under the Rehabilitation Act when he never told 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 Taylor 

became psychotic at work, that the school district knew she 

was hospitalized immediately thereafter, and that Coastal 

Plain Hospital contacted the school district by letter about 

Taylor's hospitalization and provided a phone number to 

answer questions. It is also undisputed that Ferrara wrote 

a note saying she planned to contact Taylor's doctors and 

that she wrote a letter to the superintendent, stating that 

"Phoenixville Psychiatric Associates... will monitor [Taylor's] 

Blood Lithium [sic] levels. It was stressed that she must 

maintain and continue her medication." The school district 

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

from Dr. Sonnenberg, further demonstrating that the school 

district knew how to get information from Taylor when it 

deemed it necessary. 

Based on this evidence, the school district had more than 

enough information to put it on notice that Taylor might 

have a disability, and therefore, in order to trigger the 

school district's obligation to participate in the interactive 

process, Taylor or her representative only needed to request 

accommodation. In light of the undisputed background 

information putting the school district on notice that Taylor 

had recently developed a serious disability, we think it 

would be especially inappropriate to insist that Taylor'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 want 

some accommodations, particularly as the successive

disciplinary meetings began to mount for an employee who 

had previously performed very well. We would add that 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 treatment 

information to the school district, he also asked for 

"accommodations" for his mother. 

Menzel's affidavit asserts that she did not "learn the 

specifics" of Taylor's disorder until after this litigation was 

started. Ferrara's affidavit states that: "To my knowledge, at 

no time was I or anyone else at the School District aware 

of Plaintiff 's alleged diagnosis of bipolar disorder 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 duty 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 district's 

administrative assistant for personnel. Thus, if Taylor's son 

requested accommodations from Ferrara, then the school 

district would have a duty to participate in the interactive 

 23 
process 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 essential that 

Ferrara or Taylor knew the specific name of Taylor's 

condition although Taylor's son has created a factual 

dispute on this issue by saying that he provided Ferrara 

with diagnostic and treatment information. Suffice it to say 

that there is no genuine dispute that the school district was 

aware that Taylor exhibited serious psychiatric problems 

and those problems were severe enough to require her to be 

hospitalized for roughly three weeks. Following Taylor's 

discharge from the hospital, the school district knew that 

Phoenixville Psychiatric Associates monitored the lithium 

Taylor was taking and that Taylor continued to see a 

psychiatrist. Taylor also provided the school district 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 district felt it 

needed to justify an accommodation, it was incumbent on 

the school district to ask for it. As the Seventh Circuit 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 would 

essentially nullify the process. 

Once the employer knows of the disability and the 

employee's desire for accommodations, it makes sense to 

place the burden on the employer to request additional 

information that the employer believes it needs. Disabled 

employees, especially those with psychiatric disabilities, 

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 identifying 

and justifying accommodations, could be embarrassing, 

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 order to 

identify or justify an accommodation such as a temporary 

transfer to a less demanding position. 

Another reason for placing some burden on the employer 

is that, as the Seventh Circuit recognized in Bultemeyer, an 

 24 
employee with a mental illness may have difficulty 

effectively relaying medical information about his or her 

condition, particularly when the symptoms are flaring and 

reasonable accommodations are needed. Id. See also Criado 

v. IBM Corp., 145 F.3d 437, 444 (1st Cir. 1998)(When an 

employer terminated an employee with a mental illness due 

to an alleged miscommunication over a leave of absence, 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 insight" into 

her condition and believed her only problem was"acute 

stress." 

2. Application of the interactive process foll owing adequate 

 notice 

Viewing the evidence in the light most favorable to Taylor, 

we believe that a reasonable jury could conclude, based on 

the evidence presented thus far, that the school district did 

not meet its burden under the interactive process. Taylor's 

version of the case can be stated succinctly as follows: After 

Menzel and Ferrara watched Taylor become manic and 

require hospitalization, the two decided that Menzel should 

begin documenting Taylor's every error within days of her 

return, despite the fact that Taylor's son requested 

accommodations, informed them about Taylor's condition, 

and provided them with the means to obtain more 

information if needed. Notwithstanding Taylor's previous 

twenty years of strong performance and the school district'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 and 

continued to document her failures. A reasonable jury 

could conclude that the school district did not engage in an 

interactive process of seeking accommodations and is 

responsible for the breakdown in the process. 

The school district emphasizes that the only 

accommodation Taylor specifically requested was transfer 

to another position, which Taylor later conceded was not 

feasible. We do not think that it is fatal to Taylor's claim 

that her son did not request a specific accommodation or 

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

accommodation that she admitted was not possible. The 

interactive process, as its name implies, requires the 

employer to take some initiative. In Bultemeyer , the 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] easily 

could have called [the psychiatrist] for a clarification." 

Bultemeyer, 100 F.3d at 1285. The interactive process 

would have little meaning if it was interpreted to allow 

employers, in the face of a request for accommodation, 

simply to sit back passively, offer nothing, and then, in 

post-termination litigation, try to knock down every 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 of 

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 burdensome 

a particular accommodation really is. 

The ADA's regulations make clear that the purpose of the 

interactive process is to determine the appropriate

accommodations: "This process should identify the precise 

limitations resulting from the disability and the potential 

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 

_________________________________________________________________ 

7. In Deane we emphasized the value of the interactive process for 

avoiding litigation: "we take this opportunity to observe that this 

protracted (and very much ongoing) litigation would likely have been 

unnecessary had the parties taken seriously the precepts announced in 

our opinion in Mengine." Deane, 142 F.3d at 149 (citation omitted). We 

would add that the interactive process can be thought 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). Mediated 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 hostile responses to 

requests for accommodations. The interactive process achieves these 

same goals even more effectively. 

 26 
arrived at the end product of the interactive process before 

the employer has a duty to participate in that process. The 

EEOC's interpretive guidelines squarely place some of the 

burden on the employer by stating that "the employer must 

make a reasonable effort to determine the appropriate 

accommodation." 29 C.F.R. Pt. 1630, App. S 1630.9 at 359. 

As we explained in Mengine, the process must be 

interactive because each party holds information the other 

does not have or cannot easily obtain. We noted that 

"employers will not always know what kind of work the 

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 company. 

Thus, the interactive process may often lead to the

identification of a suitable position." Mengine, 114 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 essential 

functions of an open position, the employee does not have 

the burden of identifying open positions without the 

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, the 

employer likewise will often hold more information than the 

employee about what adjustments are feasible in the

employee's current position. The Seventh Circuit pointed 

out in Bultemeyer that: "When Bultemeyer worked at North 

Side High School, a simple adjustment in his duties was 

_________________________________________________________________ 

8. Our opinion in Gaul v. Lucent Technologies, Inc., 134 F.3d 576 (3d Cir. 

1998) should be distinguished because there the employee's proposed 

accommodation, a transfer whenever he decided he was stressed, was 

unreasonable as a matter of law. If an employee insists on a single 

accommodation that is unreasonable as a matter of law, then the 

employee will be at fault for the breakdown in the interactive process. 

 27 
enough of an accommodation to enable him to work there. 

But this time, we do not know what might have happened, 

because [the employer] was unwilling to engage in the 

interactive process and accommodation him." Bultemeyer, 

100 F.3d at 1285. 

In short, an employer who has received proper notice 

cannot escape its duty to engage in the interactive process 

simply because the employee did not come forward with a 

reasonable accommodation that would prevail in litigation. 

Participation is the obligation of both parties, however, so 

an employer cannot be faulted if after conferring with the 

employee to find possible accommodations, the employee 

then fails to supply information that the employer needs or 

does not answer the employer's request for more detailed 

proposals. And while a specific request may not always be 

necessary to initiate the process, it certainly helps bolster 

the employee's claim that the employer knew that the 

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 showing 

that a particular accommodation rejected by the employer 

would have made the employee qualified to perform the 

job's essential functions. See Walton v. Mental Health 

Association of Southeastern Pennsylvania, No. 97-2000, 

1999 WL 86818, at *8 (3d Cir. Feb. 23, 1999). All the 

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 limitations the 

employee has, ask the employee what he or she specifically 

wants, show some sign of having considered employee's 

request, and offer and discuss available alternatives when 

the request is too burdensome. These steps are consistent 

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 burdensome. As 

we found in Mengine, the Postal Service engaged in good 

faith in the interactive process when it exchanged a number 

 28 
of letters with an employee in an effort to identify a vacant 

position for reassignment and sent the employee multiple 

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 the 

interactive process because there was no feasible 

accommodation that would have made Taylor capable of 

performing the essential functions of her job. In Mengine we 

stated that "if reasonable accommodation is impossible, 

nothing more than communication of this fact is required. 

Nonetheless, if an employer fails to engage in the interactive 

process, it may not discover a way in which the employee'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 process 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 be clear that 

it is impossible to find an accommodation that would allow 

the employee to perform the essential functions of a job. 

Put differently, because employers have a duty to help 

the disabled employee devise accommodations, an employer 

who acts in bad faith in the interactive process will be liable 

if the jury can reasonably conclude that the employee 

would have been able to perform the job with 

accommodations. In making that determination, the jury is 

entitled to bear in mind that had the employer participated 

in good faith, there may have been other, unmentioned 

possible accommodations. On the other hand, as we 

_________________________________________________________________ 

9. Employers may find it useful to take advantage of 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 Network (JAN) provides 

advice free-of-charge to employers and employees contemplating 

reasonable accommodation. JAN is a service of the President'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 Guidance for 

Psychiatric Disabilities, at 23, n. 56. 

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

not intended to punish employers for behaving callously if, 

in fact, no accommodation for the employee's disability 

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, however, we 

will not readily decide on summary judgment that 

accommodation was not possible and the employer's bad 

faith could have no effect. To assume that accommodation 

would fail regardless of the employer's bad faith would 

effectively eliminate the requirement that employers 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 employer 

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 precluded. 

Cf. Hendrick-Robinson v. Excel Corp., 154 F.3d 685 (7th Cir. 

1998)(Refusing to grant an employer summary judgment 

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 employer 

summary judgment because disputes of fact remained 

about which party caused the breakdown in the interactive 

process).10 When the disability involved is one that is 

_________________________________________________________________ 

10. The Ninth Circuit has expressed disagreement with our decision in 

Mengine and concluded that employers are not obliged to participate in 

the interactive process. See Barnett v. U.S. Air, Inc., 157 F.3d 744, 753 

(9th Cir. 1998). The majority in Barnett worried that an employer could 

be held liable for failing to engage in the interactive process even 

though 

the employee was successfully accommodated. We believe that where an 

employer has successfully made reasonable accommodations, a court 

can conclude as a matter of law that the employer did not act in bad 

faith. The Barnett majority also objected that it was not clear when an 

 30 
heavily stigmatized in our society - as is true when the 

employee is voluntarily or involuntarily committed to a 

mental institution - courts should be especially wary 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 participation 

in the interactive process, and assuming the school district 

did act in bad faith, nothing the school district points to 

demonstrates that it would be impossible to accommodate 

Taylor. Prior to her hospitalization, Taylor performed her 

job effectively for nearly two decades. But after becoming 

disabled and seeking accommodations, she has presented 

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 summary 

judgment that it would have been fruitless for the school 

district to make some modest and fairly obvious efforts to 

accommodate. 

_________________________________________________________________ 

employer would incur process liability. Bad faith can, of course, take 

many different forms, just as negligence can, precluding easy statement 

of a general rule about when bad faith has occurred. However, we believe 

that jurors should be able to distinguish between stonewalling and 

assisting an employee in finding accommodations. The 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 interactive process. But the 

EEOC's interpretive guidelines state that once an employee requests 

accommodations, the employer "must make a reasonable effort to 

determine the appropriate accommodation." 29 C.F.R. Pt. 1630, App. 

S 1630.9 at 359. The guidelines continue that in some 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 slide under. No 

interactive process will be needed here. Id. at 360. The regulation uses 

the phrase "may be necessary," in other words, because sometimes the 

necessary accommodation is obvious. We have also recognized that the 

process is not necessary in cases where accommodation is impossible. 

 31 
In particular, the school district could have increased 

Taylor's job responsibilities more slowly, given more time to 

introduce the computer, or communicated less by formal, 

written reprimands. The EEOC compliance manual for 

psychiatric disorders provides that some adjustments in 

supervisory methods can qualify as legitimate 

accommodations.11 The ADA itself specifically provides that 

reasonable accommodations can include "job restructuring, 

part-time or modified work schedules, reassignment to a 

vacant position, acquisition or modification of equipment or 

devices, appropriate adjustment or modifications of

examinations, training materials or policies, the provision of 

qualified readers or interpreters, and other similar 

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 be 

useless; that would have the bizarre implication that the 

more demanding a plaintiff's accommodations were, the 

more likely the plaintiff is to survive summary judgment. 

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 reap 

large returns in how well a disabled employee performs. 

_________________________________________________________________ 

11. The EEOC compliance manual states that: "Supervisors play a 

central role in achieving effective reasonable accommodations for their 

employees. In some circumstances, supervisors may be able to adjust 

their methods as a reasonable accommodation by, for example, 

communicating assignments, instructions, or training by the medium 

that is most effective for a particular individual (e.g., in writing, in 

conversation, or by electronic mail)." 2 EEOC Compliance 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 employee 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 transfer whenever the 

employee deems that his co-workers are causing him inordinate stress. 

134 F.3d at 579. 

 32 
We 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 employee to 

a less forgiving supervisor. What we do hold is that an 

employer, having received adequate notice of an employee's 

disability and desire for accommodations, cannot fail to 

engage the employee in the interactive process offinding 

accommodations, increase the disabled employee's job 

responsibilities, and then simply document the employee's 

failures. 

To show that an employer failed to participate in the 

interactive process, a disabled employee must demonstrate: 

1) the employer knew about the employee's disability; 2) the 

employee requested accommodations or assistance for his 

or her disability; 3) the employer did not make a good faith 

effort to assist the employee in seeking accommodations; 

and 4) the employee could have been reasonably 

accommodated but for the employer's lack of good faith. 

Mengine, 114 F.3d at 420; Bultemeyer, 100 F.3d at 1285; 

Taylor, 93 F.3d at 165. 

We believe that a reasonable jury could conclude that 

Taylor requested accommodations, that the school district 

made no effort to help Taylor find accommodations and was 

responsible for the breakdown in the process, and that 

there were accommodations that the school district could 

have provided that would have made Taylor able to perform 

the essential functions of her job. If a jury concludes that 

the school district was not responsible for the breakdown in 

the interactive process, Taylor must demonstrate that a 

specific, reasonable accommodation would have allowed her 

to perform the essential functions of her job. 

We have viewed the evidence in the light most favorable 

to Taylor, as we must on summary judgment. The school 

district is, of course, free on remand to argue that it did not 

receive notice of Taylor's request for accommodation, that it 

tried to assist Taylor in seeking accommodations, or, 

assuming the school district was responsible for the 

breakdown in the process, that no accommodation would 

 33 
have allowed Taylor to perform the essential functions of 

her job.12 

IV 

For the foregoing reasons, we will reverse the March 20, 

1998 grant of summary judgment by the District Court and 

remand the case for further proceedings. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

_________________________________________________________________ 

12. The District Court treated Taylor's case as possibly raising a 

disparate-treatment claim. Because Taylor represents on appeal that she 

did not intend to raise such a claim, we need not reach the issue. 

 34