1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-19-1999

Taylor v. Pathmark

Precedential or Non-Precedential:

Docket 97-7617

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1999

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1999 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Taylor v. Pathmark" (1999). 1999 Decisions. Paper 138.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/138
Filed May 19, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NO. 97-7617 

JOSEPH B. TAYLOR, 

Appellant 

v. 

PATHMARK STORES, INC. 

On Appeal From the United States District Court 

For the District of Delaware 

(D.C. Civ. No. 96-cv-00337) 

District Judge: Honorable Joseph J. Farnan, Jr., 

Chief Judge 

Argued: February 9, 1999 

Before: BECKER, Chief Judge, and McKEE, Circuit Judges 

and LEE, District Judge.* 

(Filed May 19, 1999) 

 GARY W. ABER, ESQUIRE 

 (ARGUED) 

 Heiman, Aber, Goldlust & Baker 

 First Federal Plaza, Suite 600 

 702 King Street 

 P.O. Box 1675 

 Wilmington, DE 19899 

Counsel for Appellant 

_________________________________________________________________ 

*Honorable Donald J. Lee, United States District Judge for the Western 

District of Pennsylvania, sitting by designation. 
 MICHAEL F. KRAEMER, ESQUIRE 

 (ARGUED) 

 DEBBIE RODMAN SANDLER, 

 ESQUIRE 

 White & Williams, LLP 

 1800 One Liberty Place 

 Philadelphia, PA 19103-7395 

 HAL R. CRANE, ESQUIRE 

 Pathmark Stores, Inc. 

 301 Blair Road 

 Woodbridge, NJ 07095-0915 

 Counsel for Appellee 

OPINION OF THE COURT 

BECKER, Chief Judge. 

This case arises under the Americans with Disabilities 

Act ("ADA"). The plaintiff, Joseph B. Taylor, sued Pathmark 

Stores, Inc. ("Pathmark") in the District Court, alleging that 

Pathmark had discriminated against him on the basis of 

his disability or, in the alternative, that Pathmark wrongly 

regarded him as disabled. The District Court granted 

judgment as a matter of law for Pathmark on both claims. 

We will affirm the District Court's judgment on Taylor's 

claim that he was disabled within the meaning of the ADA, 

but reverse the judgment insofar as the District Court 

determined that Taylor was not regarded as disabled for the 

period between December 1995 and his rehiring in July 

1997. In so doing, we reaffirm that, to successfully claim 

that he was wrongly regarded as disabled from working, a 

plaintiff need not be the victim of negligence or malice; an 

employer's innocent mistake (which may be a function of 

"goofs" or miscommunications) is sufficient to subject it to 

liability under the ADA, see Deane v. Pocono Med. Ctr., 142 

F.3d 138, 143 n.4 (3d Cir. 1998) (en banc), although the 

employer's state of mind is clearly relevant to the

appropriate remedies. We recognize, however, a limited 

defense of reasonable mistake where the employee is

responsible for the employer's erroneous perception and the 

 2 
employer's perception is not based on stereotypes about 

disability. Under these tests, material issues of fact remain 

for resolution at trial. 

Because of its structure and subject matter, the ADA is 

often a difficult statute for courts and employers to 

interpret and, sometimes, to follow. This case is also a 

difficult one, not only conceptually but also because of the 

odd (if not convoluted) factual background, punctuated by 

glitches and apparent misinterpretations of medical

records, to which we now turn. 

I. Factual Background 

Taylor began working at Pathmark in May 1981 and was 

eventually promoted to frozen food manager. In December 

1991, he slipped on a piece of cellophane at work and 

strained his right ankle. His doctor instructed him to rest 

the ankle for ten minutes each hour, and to refrain from 

walking or standing for extended periods of time. Taylor 

aggravated the injury in January 1992 when he fell down a 

flight of stairs. He took time off from work, and when he 

returned in November 1992 he was told that the frozen food 

manager post had been filled during his absence. In the 

following months, he was given various light duty 

assignments that accommodated his limitations. He 

stocked shelves, occasionally sitting on a milk crate to do 

so, and worked in the service center, which allowed him to 

sit at a desk for a portion of the day. He was often allowed 

to work on the "bag your own" register at which customers 

bagged their groceries and he could sit on a stool. In 

November 1993, Taylor had arthroscopic surgery, a 

minimally invasive procedure, on his ankle. 

The parties have stipulated that Taylor has a 16% 

permanent disability in his right ankle. When he was 

working on light-duty assignments, Taylor wore either an 

air cast or a cast type shoe, and when he exceeded his 

limits on standing and walking for more than fifty minutes 

an hour, he used a crutch or cane. Pathmark allowed this 

periodic resting and use of a crutch or cane until April 29, 

1994. While accommodated in this fashion, Taylor was 

productive and Pathmark's manager considered him a 

problem-free employee. 

 3 
In early March 1994, Taylor's store manager asked him 

to provide an updated note from his doctor setting forth any 

continuing restrictions on work assignments. His family 

doctor, Dr. Moore, provided a note stating that Taylor could 

continue to work, but without prolonged standing. Later 

that month, without Taylor's knowledge, Pathmark's 

corporate headquarters sent a request for an updated 

record for Taylor to his orthopaedic specialist, Dr. Gelman. 

Dr. Gelman replied, in an April 7, 1994, letter, that he had 

not seen Taylor since December of 1993 but that he 

believed that Taylor could return to work without any 

restrictions, basing his opinion on the fact that Taylor had 

not returned to see him. 

Relying on Dr. Gelman's letter, Taylor's manager told him 

on April 29 that he had to work a full-duty cash register for 

a day. Taylor felt that he could not comply, refused, and 

eventually left the store. He contacted Pathmark's workers' 

compensation representative and learned for thefirst time 

of Dr. Gelman's letter. He sought an examination with Dr. 

Gelman, after which, on May 5, the doctor sent Pathmark 

another letter stating that Taylor could engage in "full-time 

work--limited standing." Pathmark's administrative offices, 

however, never forwarded the letter to Taylor's manager and 

he was not asked to return to work. Pathmark's internal 

email suggested that there was a "glitch" in this series of 

events because of Dr. Gelman's initial problematic 

evaluation. Taylor's store manager likewise admitted that 

Dr. Gelman's first letter was incorrect and that Dr. Moore's 

note was probably more accurate, but the manager was 

never given Dr. Gelman's updated note of May 5. When 

Taylor called his manager about getting back on a work 

schedule, his manager told him, "I don't care." 

On May 27 and September 2, 1994, Pathmark sent 

Taylor to Dr. Case, an orthopaedic surgeon. After the first 

visit, Dr. Case wrote to Pathmark counsel that Taylor could 

work with restrictions, but Pathmark did not invite him to 

return to work. After the September visit, Dr. Case told 

Pathmark that Taylor could return to work with an air splint.1 

_________________________________________________________________ 

1. There is testimony in the appellate record that Case's report said that 

Taylor used an air splint while working, but no testimony that Case 

instructed Taylor to do so. 

 4 
Pathmark apparently took no action for approximately one 

year thereafter. 

In September 1995, Pathmark's ADA Committee 

evaluated Taylor and sent Dr. Moore a questionnaire asking 

about Taylor's restrictions. Dr. Moore reported to the 

committee on October 5, 1995, that Taylor was temporarily 

subject to increased work restrictions due to an aggravation 

of his ankle injury in July 1995. The form Pathmark

provided allowed him to check either "permanent" or

"temporary," and Dr. Moore checked "temporary," writing in 

that the restrictions would last for six months or more. 

Taylor wrote to Pathmark on December 19, 1995, 

representing that his temporary restrictions had been lifted 

and that he could work under his permanent limitations as 

he had been doing prior to April 1994. The evidence was 

that Pathmark's ADA Committee evaluated his case in late 

1995, but took no action on it for approximately seven 

months, for reasons that are not apparent. 

Pathmark fired Taylor by letter dated May 13, 1996. The 

letter, which was written by the ADA Committee, stated 

that Taylor's inability to work "effectively severs your 

employment relationship with Pathmark as of May 13,

1996." The letter recited that Dr. Moore's restrictions 

allowed Taylor to: stand one hour at a time up to four 

hours a day; walk one hour at a time not to exceed one 

hour a day; lift, carry, push, and pull ten pounds 

frequently, up to twenty pounds occasionally, and never 

over twenty pounds; and occasionally bend, squat, climb, 

and reach. The letter further stated that Taylor's 

restrictions precluded crawling or repetitive pushing and 

pulling of leg controls and required breaks to be taken as 

necessary. The letter continued that, comparing the

restrictions with the physical requirements of the frozen 

food manager job, 

 [t]hese restrictions on your work related activities are 

 such that any reasonable accommodation which

 Pathmark might provide are insufficient to enable you 

 to function to standard in your position as a Frozen 

 Food Manager which regularly requires: 

 * Regularly lifting and carrying 25 pounds 

 5 
 * Frequently stooping, crouching and reaching 

 * Extended standing and walking 

 Furthermore, your restrictions are such that you 

 cannot perform the essential functions of any other 

 available position, all of which require extended 

 standing and/or walking and regular reaching. We 

 have been advised your restrictions are permanent. 

App. at A55-56 (emphasis added). 

After Taylor received this letter, he contacted Dr. Moore, 

who clarified his position that Taylor had been temporarily, 

but not permanently, heavily restricted and that Taylor 

could work with either ten minute rest breaks per hour or 

the use of a cane or crutch. Pathmark asked Dr. Moore to 

fill out a new capabilities form, which he did on June 19, 

1996, restating these restrictions, but Taylor was not 

reinstated. There was testimony that the ADA Committee 

realized that its May 13 letter was mistaken, but it never 

reconsidered Taylor or looked into giving him a cashier's job 

with a stool, though he could have been accommodated. 

Instead, the Committee referred the matter to Pathmark's 

legal department and heard no more about it. Meanwhile, 

Pathmark's workers' compensation department was 

insisting that he could return to work full-time. From 1994 

on, Taylor had regularly contacted Pathmark, asking for 

work, and his union representative had also tried to get 

him back to work. After he was fired, he brought this suit. 

He was rehired in July 1997, during the pendency of this 

litigation, and is currently employed as a third-shift nonfoods clerk. 

Taylor argues that Pathmark should have given him a job 

that he could do. Pathmark's Store Operations Employment 

Compliance Manual provides for reasonable accommodation 

in cashier positions for people who have trouble standing 

for extended periods. Pathmark's ADA Training for 

Management Associates manual also suggests that stools 

are reasonable accommodations for people who cannot

stand for long periods. Taylor's last store manager conceded 

that when Taylor was out on disability he should have been 

considered for a cashier position with a stool. Moreover, 

Taylor and his vocational expert, Thomas Yohe, offered 

 6 
testimony that the frozen food manager job requires a 

significant amount of book work, sales planning, schedule 

writing, looking up orders, checking bills, preparing signs, 

and using a computer, all of which can be done while 

sitting. This amounts to forty-five minutes to an hour of 

sitting per day. Combined with sitting during Taylor's 

morning, afternoon, and lunch breaks, which amount to 

forty minutes per day, Taylor argues that he would be off 

his feet ten minutes per hour without accommodation. 

Yohe testified that Taylor's restrictions could be 

accommodated in his previous Pathmark jobs, including 

the frozen food manager job, with the "minor" 

accommodation of allowing him to use a milk crate to sit on 

or to prop up his foot. 

After Taylor had presented his evidence at trial, the 

District Court granted "summary judgment" for Pathmark. 

It would be more accurate to state that the District Court 

granted a motion under Fed. R. Civ. Proc. 50(a). Because 

the District Court dismissed the case after Taylor presented 

his evidence to a jury, Pathmark suggests that we should 

give increased deference to the trial judge. Unsurprisingly, 

Pathmark cites no authority for this proposition and, since 

Taylor's claims were not in fact evaluated by his chosen 

finder of fact, we disagree. At all events, Pathmark concedes 

that the proper test is the standard one: We must view the 

facts in the light most favorable to Taylor. 

II. Was Taylor "Disabled" Under the ADA? (Was He 

 Substantially Limited in the Major Life Activities of 

 Walking and Standing?) 

Taylor's first theory is that he has a "disability" under the 

ADA, which covers impairments that substantially limit a 

major life activity. EEOC regulations provide, and no one 

here contests, that walking and standing are major life 

activities. See 29 C.F.R. S 1630.2(1) App. (1996). 

"Substantial limitations" are those that render an individual 

 (i) unable to perform a major life activity that the 

 average person in the general population can perform; 

 or 

 7 
 (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) (1996). The relevant factors are (1) 

the nature and severity of the impairment; (2) the duration 

or expected duration; and (3) the expected or actual 

permanent or long-term impact of or resulting from the 

impairment. See 29 C.F.R. S 1630.2(j)(2). The impairment 

must be severe when compared to the functioning of the 

general population. The purpose of the ADA would be

undermined if protection could be claimed by those whose 

relative severity of impairment was widely shared. See 

Forrisi v. Bowen, 794 F.2d 931, 934 (4th Cir. 1986). On the 

other hand, Congress expressed a strong remedial intent in 

enacting the ADA, and explicitly found that approximately 

forty-three million Americans were disabled as of 1990, see 

42 U.S.C. S 12101(a)(1) (1998), which implies that the 

definition should not be so restricted that only the most 

extremely impaired are covered. 

Taylor testified that he walks with a slight limp and 

requires ten-minute hourly breaks when standing or 

walking. His girlfriend, however, testified that he regularly 

takes walks after dinner and stated that he does not 

require a cane or crutch. The District Court concluded that 

Taylor did not have a disability. Taylor objects that the 

District Court drew incorrect inferences from his girlfriend's 

testimony. She testified that Taylor takes the car out for 

one-and-a-half to three hours after dinner, that she did not 

know how much time he actually spent walking because 

she was not with him, and that he carries a walking stick. 

Thus, he argues, a jury could infer that he cannot walk 

unassisted for long periods of time. 

Even considering this testimony in the light most 

favorable to Taylor, the court's conclusion is sensible. The 

court noted that there was no testimony that Taylor stands 

or walks, during the fifty minutes per hour that he can, 

with any less ability than the average person. The EEOC's 

regulations define a person with a walking disability as 

 8 
someone who "can only walk for very brief periods of time." 

29 C.F.R. S 1630.2(j) App; cf. Deane, 142 F.3d at 143 n.4 

(regulations are entitled to substantial deference). We agree 

with the District Court that fifty minutes (per hour) is not 

a "very brief" period. 

In Kelly v. Drexel University, 94 F.3d 102 (3d Cir. 1996), 

we found that a man who limped as a result of a hip injury, 

could not walk more than a mile, and had to climb stairs 

slowly was not disabled. We concluded that the restrictions 

on his ability to walk were "comparatively moderate," citing 

several district court cases that rejected similar claims. Id. 

at 106. Pathmark has also cited other cases in which 

walking problems were found not to constitute covered 

disabilities. See, e.g., Oesterling v. Walters, 760 F.2d 859, 

861 (8th Cir. 1985) (a woman whose varicose veins 

prevented her from standing or walking for long periods 

was not disabled under the Rehabilitation Act's similar 

definition); Penchisen v. Stroh Brewing Co. , 932 F. Supp. 

671, 674 (E.D. Pa. 1996) (a woman with a metal plate in 

her left ankle who could not fully flex her foot or walk with 

a normal gait was not disabled), aff'd, 116 F.3d 469 (3d 

Cir.), cert. denied, 118 S. Ct. 178 (1997). 

Taylor argues that Pathmark only allows one break every 

two hours and that his need for a break every hour makes 

him function at less than fifty percent of a typical Pathmark 

employee. The District Court responded that the standard 

is one of comparison to the "average person in the general 

population." 29 C.F.R. S 1630.2(j)(1) (1996). Taylor 

presented no evidence that Pathmark employees resembled 

the general population in average ability, though he did 

plausibly argue that Pathmark employed people of average 

ability. The more important point is that Taylor is mixing 

scales of measurement. That he can only stand for half as 

long as the average Pathmark employee, or average person, 

is not necessarily proof that he is substantially impaired in 

his ability to stand. The relevant question is whether the 

difference between his ability and that of an average person 

is qualitatively significant enough to constitute a disability. 

Because Taylor can stand and walk for fifty minutes at a 

time, and can continue for longer periods if he takes a 

break every hour, he can carry out most regular activities 

 9 
that require standing and walking, even though he may 

not be able to perform Pathmark's jobs without 

accommodation. We conclude that his ability to walk and 

stand is not significantly less than that of an average 

person. 

Taylor finally argues that the employee in Kelly had no 

evidence that he used any special device, cane, or crutches 

to aid in walking. By contrast, Taylor needs a cane or 

crutch after fifty minutes and uses a prosthetic shoe to 

ease his pain and discomfort. Under our jurisprudence, the 

determination whether a disability exists must be made by 

evaluating a person's impairment as it affects major life 

activities without the use of mitigating measures, even if 

the person uses such mitigating measures in regular

activity. See Matczak v. Frankford Candy & Chocolate Co., 

136 F.3d 933 (3d Cir. 1997).2 Taylor contends that the 

District Court improperly took mitigating measures into 

account when determining his abilities by failing to note 

that Taylor needed ameliorative footwear to maintain his 

present level of mobility. 

If Taylor had needed a cane or crutch to stand forfifty 

minutes an hour, his argument would be persuasive. But 

there is no evidence that Taylor required an assistive device 

to stand or walk for at least fifty minutes an hour. If he 

wanted to stand for longer, he needed a cane or crutch, but 

someone like Taylor who can stand for fifty minutes

unassisted is not substantially limited in standing, and 

thus his need for assistance to improve his performance 

does not show that he has a disability. As for the air 

cast/cast type shoe, Pathmark argues that no doctor ever 

ordered him to use such devices, and that if he did so for 

his own comfort that cannot prove his disability. See 

Douglas v. Victor Capital Group, 21 F. Supp. 2d 379

(S.D.N.Y. 1998) (plaintiff used cane or crutches on

occasion, but there was no evidence he was medically 

required to do so, and voluntary use could not meet his 

burden of proof). We have not been able to find evidence in 

_________________________________________________________________ 

2. The Supreme Court will decide this issue shortly. See Sutton v. United 

Air Lines, Inc., 119 S. Ct. 790 (1999), granting cert. to 130 F.3d 893 

(10th 

Cir. 1997). 

 10 
the record that a doctor ordered Taylor to use an air cast, 

and we believe that occasional use of an air cast to 

diminish discomfort does not raise Taylor's condition to the 

level of a disability.3 Therefore we will affirm the District 

Court's judgment on the issue of whether Taylor was

actually substantially limited in the major life activity of 

walking. 

III. Was Taylor "Regarded as" Disabled? 

A person is "regarded as" having a disability if the 

person: 

 (1) Has a physical or mental impairment that does not 

 substantially limit major life activities but is treated by 

 the covered entity as constituting such limitation; 

 (2) Has a physical or mental impairment that

 substantially limits major life activities only as a result 

 of the attitudes of others toward such impairment; or 

 (3) Has [no such impairment] but is treated by a 

 covered entity as having a substantially limiting 

 impairment. 

29 C.F.R. S 1630.2(l) (1996). Taylor argues that Pathmark 

regarded him as disabled by virtue of the ADA Committee's 

determination that he was too impaired to take any 

Pathmark job, with or without accommodation. 

The gravamen of Taylor's claim is that Pathmark 

perceived Taylor as disabled based on a mistaken 

interpretation of his medical records, specifically Dr. 

Moore's October 1995 physical capacity evaluation, wherein 

_________________________________________________________________ 

3. See supra note 1. The most direct evidence on this point comes from 

Dr. Moore's note to Cynthia Jackson, who apparently was in charge of 

authorizing Taylor's medical expenses for Pathmark's insurer. Dr. Moore 

requested that Taylor be authorized to visit a podiatrist for his ankle 

pain and wrote, "Hopefully, only conservative measures will be needed 

such as a brace or an orthotic." Taylor has identified no further evidence 

that such a visit was authorized or what came from it, and he testified 

that his need for an air cast was only occasional. Under these 

circumstances, we conclude that no material issue of fact exists about 

his medical need for an assistive device to stand for shorter periods. 

 11 
the doctor checked the box marked "temporary" and the 

Committee responded with a letter stating "We have been 

advised your restrictions are permanent." The October 1995 

evaluation, which occurred after Taylor temporarily

aggravated his ankle, described severe limitations on many 

important activities such as lifting and walking, limits that 

were far greater than those imposed by Taylor's permanent 

ankle impairment. A reasonable jury could therefore

conclude that Pathmark erroneously regarded him as 

disabled. As Taylor notes, the statement in Pathmark's May 

1996 letter that he was unable to perform any Pathmark 

job, even with accommodation, suggests a perception of 

limits that would likely constitute substantial limitation on 

many major life activities. This is not a case where 

Pathmark stated that he was unable to perform a particular 

job; it appears to have considered him incapable of

performing a wide range of jobs, indeed, any jobs that 

required significant standing, walking, lifting, or moving 

about (i.e., most jobs in a supermarket). 

Several cases support our conclusion that, in general, an 

employer's perception that an employee cannot perform a 

wide range of jobs suffices to make out a "regarded as" 

claim. In Dipol v. New York City Transit Authority, 999 F. 

Supp. 309, 314 (E.D.N.Y. 1998), the court found that the 

plaintiff had proved a "regarded as" claim when, after 

receiving information from the plaintiff's doctor, the 

employer immediately placed the plaintiff on no-work 

status, excluding him from all jobs. In Coleman v. Keebler 

Co., 997 F. Supp. 1102, 1114 (N.D. Ind. 1998), the court 

held that evidence that the defendant concluded that the 

plaintiff could not perform any available jobs in a

production plant created a material issue of fact on a 

"regarded as" claim. More generally, if an impairment at a 

certain level of severity would constitute a disability, then it 

follows that an employer who perceives an employee as 

having such an impairment perceives the employee as

disabled. Cf. 29 C.F.R. pt. 1630 App., S 1630.2(j) ("An 

individual who has a bad back that prevents the individual 

from performing any heavy labor job would be substantially 

limited in the major life activity of working because the 

individual's impairment eliminates his or her ability to 

perform a class of jobs."). 

 12 
The District Court, however, rejected Taylor's "regarded 

as" claim. The court reasoned: 

 The thrust of Plaintiff's claim . . . is based on 

 Defendant's failure to accommodate Plaintiff's physical 

 impairment. Plaintiff asserts that based on Dr. 

 Gelman's April 7th note, which stated that Plaintiff 

 could work without restrictions, Defendant demanded 

 on April 29, 1994 that Plaintiff perform the cashier's 

 job. Plaintiff contends that he could not perform the 

 cashier's job as requested because he was substantially 

 limited in a major life activity and therefore disabled 

 . . . . On the other hand, Plaintiff argues that he was 

 wrongfully "regarded as" disabled by his employer with 

 respect to him being employed in the frozen food 

 manager's job, which Plaintiff asserts he could have 

 done without any accommodation by the Defendant. 

 . . . 

 Essentially, the Plaintiff is asking the Defendant to 

 treat him as disabled under the ADA if he is assigned 

 to a job other than frozen food manager. In sum, when 

 Plaintiff was initially injured, he provided his medical 

 restrictions to the Defendant. Plaintiff worked for a 

 period of fifteen months asserting these restrictions 

 and Defendant accommodated him. Subsequently, 

 when Defendant learned, from a doctor's note, that 

 Plaintiff was purportedly no longer disabled, Defendant 

 regarded Plaintiff as able, and requested that Plaintiff 

 perform a job affording no accommodation for his 

 impairment. Plaintiff then asserted that he was 

 disabled. Plaintiff now claims that he was not disabled 

 and should not have been regarded as such by the 

 Defendant in the context of Plaintiff 's desire to be 

 assigned as a frozen food manager. 

 Plaintiff proposes an apparently impossible situation 

 for an employer. On the one hand, an employer must 

 acknowledge the medical restrictions needed by an 

 employee, while on the other hand it must ignore those 

 same medical restrictions when the employee believes 

 the restrictions might affect his assignment to a 

 desired position. 

 13 
Slip op. at 14 (citations omitted). 

We will first consider the District Court's reasoning about 

the conflicts between Taylor's two claims and the time 

frame of his "regarded as" claim, and then turn to a 

broader analysis of "regarded as" protection under the ADA. 

A. Allegedly Inconsistent Claims 

We conclude that this set of facts was insufficient to 

support a directed verdict for the defendant. The District 

Court concluded that Taylor was proffering both a theory 

that he was disabled and a theory that he was 

wrongly regarded as disabled, which theories undercut one 

another. However, a plaintiff may plead in the alternative, 

and our caselaw finds no difficulty with pairing the two 

claims in one complaint. In Olson v. General Electric 

Astrospace, 101 F.3d 947 (3d Cir. 1996), we expressed no 

discomfort in denying summary judgment on a "regarded 

as" claim where the plaintiff had also alleged actual 

disability, although "the evidence that was apparently 

offered to demonstrate [his] fitness as an employee

ironically establishes that he was not substantially limited 

in a major life activity." Id. at 953. Similarly, in Arnold v. 

United Parcel Service, Inc., 136 F.3d 854, 860, 862 (1st Cir. 

1998), the court held that there is no conflict in bringing an 

actual disability and a "regarded as" claim together. See 

also Koblosh v. Adelsick, No. 95C5209, 1996 U.S. Dist. 

LEXIS 17254, at *15 (N.D. Ill. Nov. 20, 1996) (same). 

The possibility that a plaintiff will bring both an actual 

disability and a "regarded as" claim is simply one allowed 

by the law; its possible abuse must be checked by the 

standard measures for deterring frivolous or bad-faith 

complaints. Nor is Taylor's position intrinsically 

contradictory, as he could have an impairment (whether or 

not it rose to the level of a disability) that could actually be 

accommodated, despite Pathmark's perception that his 

disability was too severe to accommodate. 

At all events, we disagree with the District Court's 

description of Taylor's claims. Taylor did not claim that he 

was "not disabled" with respect to the frozen food manager 

job, as the court suggested; he claimed that the job's 

requirements did not interact with his disability in a way 

 14 
that prevented him from doing the job or that required 

accommodation (beyond allowing him to rest his leg on a 

milk crate from time to time, a measure that may not even 

technically be an accommodation and that we discuss

further infra). The distinction is highlighted by the example 

of a deaf person who claims that he is qualified for a job 

that involves converting handwritten notes into word 

processing files: He would not be "not disabled" with 

respect to the job, because disability is not a job-specific 

determination, but the job would not be affected by his 

disability. 

The District Court also believed that Taylor was putting 

Pathmark in an impossible situation because Pathmark 

would be potentially liable if it accommodated Taylor or if it 

refused to accommodate him. However, Pathmark would

not be liable for accommodating Taylor. It is only liable if it 

wrongly regarded him as so disabled that he could not work 

and therefore denied him a job. 

The accommodations that Pathmark provided or might 

have provided are not part of Taylor's "regarded as" claim. 

Taylor does not attempt to rely on Pathmark's pre-April 

1994 accommodations of his condition to prove his 

"regarded as" claim, nor should he. An employer may

decide to accommodate people who are not "disabled" under 

the ADA. If the District Court is concerned about the 

possibility of jury confusion on this issue, it might be 

appropriate to instruct the jury that Pathmark's voluntary 

accommodations, which are apparently formalized and

routinized in Pathmark's employment manuals, are not 

evidence of a perception of disability. 

B. The Time Frame of the "Regarded as" Claim 

We agree with the District Court that Pathmark regarded 

Taylor as able to work on April 29, 1994, but that is not 

material to Taylor's "regarded as" claim. Taylor's claim is 

that Pathmark erroneously regarded him as entirely and 

permanently unable to work at any job after it received Dr. 

Moore's evaluation in September 1995; his "regarded as" 

claim must be limited to the period following that 

evaluation. Taylor claims that he was not, in fact, so 

disabled that he could not perform any Pathmark jobs. 

 15 
Taylor notes that he provided Pathmark with a letter on 

December 19, 1995, that stated that his restrictions as of 

December 1995 were the same as they had been during the 

November 1992-April 1994 period when he was working at 

Pathmark. The temporary July to December 1995 

restrictions had been lifted. A reasonable factfinder could 

conclude that Taylor was not so impaired that he could not 

work at all after that point, and therefore that Pathmark's 

misunderstanding of his condition prevented him from 

getting work at Pathmark for some period after December 

19, 1995. Under this scenario, Taylor had a viable 

"regarded as" claim after that date. 

C. Liability for Mistakes 

What a "regarded as" plaintiff must do to put the 

employer on notice that its perception is erroneous is an 

extremely difficult question. Pathmark in effect argues that: 

(1) until Taylor provided definitive notice of his ability to 

work and corrected Pathmark's belief, it cannot be held 

liable for considering him unable to work; and (2) his 

provision of notice proves that Pathmark correctly 

understood his condition after that point. We deal with 

Pathmark's second claim infra Section III.E, while in this 

section we make clear that Pathmark has the initial

responsibility to evaluate employees correctly. 

Pathmark argues that reliance on information given by 

the plaintiff (or the plaintiff's agent) cannot found an ADA 

"regarded as" cause of action. As Pathmark puts it, "For as 

long [as] Dr. Moore's report led Pathmark to believe that 

Taylor required a sedentary position, Pathmark was entitled 

to act accordingly." Pathmark's broad assertion cannot 

carry the day under the peculiar facts of this case. In most 

"regarded as" cases, it is likely that information on an 

employee's abilities comes from the employee or his agent, 

but the source of the information will not necessarily be 

determinative. The fact is that Dr. Moore's report labelled 

Taylor's restrictions "temporary," not permanent. At all 

events, Taylor never provided Pathmark with the conclusion 

that he was substantially limited in a major life activity 

such that there were no jobs at Pathmark that he could 

perform, with or without accommodation. This case is 

dominated by miscommunications and misinterpretations, 

 16 
and one of the points of "regarded as" protection is that 

employers cannot misinterpret information about an 

employee's limitations to conclude that the employee is 

incapable of performing a wide range of jobs. 

We find the cases Pathmark cites on reasonable reliance 

to be inapposite. In Wooten v. Farmland Foods, 58 F.3d 382 

(8th Cir. 1995), for example, the court held that the 

evidence of an employer's perception of an employee's 

abilities based on a doctor's note provided by the employee 

was insufficient to establish a "regarded as" claim. The 

court held that Wooten's employer's perceptions were not 

based on stereotype or myth but on a doctor's written 

restrictions. But the law in this circuit is that a"regarded 

as" plaintiff can make out a case if the employer is 

innocently wrong about the extent of his or her impairment: 

 Although the legislative history indicates that Congress 

 was concerned about eliminating society's myths, fears, 

 stereotypes and prejudices with respect to the disabled, 

 the EEOC's Regulations and Interpretive Guidelines 

 make clear that even an innocent misperception based 

 on nothing more than a simple mistake of fact as to 

 the severity, or even the very existence, of an 

 individual's impairment can be sufficient to satisfy the 

 statutory definition of a perceived disability. Thus 

 whether or not [the defendant] was motivated by myth, 

 fear or prejudice is not determinative of [the plaintiff 's] 

 "regarded as" claim. 

Deane, 142 F.3d at 144 (citation omitted). 

Similarly, Riemer v. Illinois Department of Transportation, 

148 F.3d 800 (7th Cir. 1998), sustained a "regarded as" 

claim where the employer's misperception about the effects 

of the plaintiff 's asthma, based on a doctor's report, led it 

to exclude the plaintiff from an entire class of jobs, and in 

Johnson v. American Chamber of Commerce Publishers, Inc., 

108 F.3d 818 (7th Cir. 1997), the court wrote, "If for no 

reason whatsoever an employer regards a person as 

disabled--if, for example, because of a blunder in reading 

medical records, it imputes to him a heart condition he 

never had--and takes adverse action, it has violated the 

statute . . . ." Id. at 819; see also Dipol, 999 F. Supp. at 314 

 17 
(the fact that the employer, after receiving information from 

a doctor, immediately placed the plaintiff on no-work status 

made out a "regarded as" claim); Mendez v. Gearan, 956 F. 

Supp. 1520, 1525 (N.D. Cal. 1997) (employer's mistaken 

perception that a temporary impairment was permanent 

could found a "regarded as" claim).4 

We acknowledge the force of Pathmark's argument that it 

relied on information supplied by Taylor's doctor in 

concluding that it had no job available that met his 

restrictions during the period from October 1995 to

December 1995 (Taylor informed Pathmark that the severe 

restrictions had been lifted on December 19). Taylor has 

not disputed that he did, in fact, have those temporarily 

heightened restrictions after the aggravation of his ankle 

injury. We conclude that a directed verdict as to that period 

was proper, because he has not disputed Pathmark's claim 

that restrictions of such severity precluded him from any 

Pathmark jobs, even with accommodation. 

Pathmark further argues that it was reasonable to rely on 

Dr. Moore's first evaluation until June 1996, when Dr. 

Moore filled out an updated questionnaire.5 We cannot, 

however, say that Pathmark's reliance on Dr. Moore'sfirst 

report necessarily excuses it entirely from liability. An 

employer can rely on an employee's information about 

restrictions, but it has to be right when it decides that 

those restrictions are permanent and that they prevent the 

employee from performing a wide class of jobs, as opposed 

_________________________________________________________________ 

4. Dotson v. Electro-Wire Products, Inc., 890 F. Supp. 982 (D. Kan. 1995), 

another case cited by Pathmark, is distinguishable. In that case, the 

physician's note at issue did not describe an impairment that could 

reasonably be thought to substantially limit the plaintiff in a major life 

activity. On receipt, the defendant did not change the plaintiff 's job 

duties or take other actions to indicate that it considered her incapable 

of doing the general class of job. See id. at 991. In contrast, Pathmark 

sent Taylor a letter saying that his restrictions were permanent and that 

he was fired. 

5. Pathmark characterizes this second questionnaire as a "changed" 

diagnosis. This is arguably a critical misdescription, since Taylor 

contends that Dr. Moore's restrictions were always temporary, as he 

indicated on the first form, and so the second form simply reflected the 

fact that the temporary restrictions had been lifted. 

 18 
to one particular and limited job. An employer who simply, 

and erroneously, believes that a person is incapable of 

performing a particular job will not be liable under the 

ADA. Liability attaches only to a mistake that causes the 

employer to perceive the employee as disabled within the 

meaning of the ADA, i.e., a mistake that leads the employer 

to think that the employee is substantially limited in a 

major life activity. 

Pathmark argues that imperfection in its internal 

procedures--apparently a communication gap between the 

ADA Committee and those responsible for making an 

employment decision about Taylor--should not lead to ADA 

liability. Yet if the relevant decisionmakers wrongly believed 

that Taylor was completely unable to work because of 

miscommunication within Pathmark, the ADA puts on 

Pathmark the burden of correcting the problem, rather 

than leaving Taylor out in the cold. Cf. Deane, 142 F.3d at 

149 (suggesting that informal cooperation and 

communication to correct mistakes is appropriate in a 

"regarded as" situation). Taylor offered Pathmark updated 

information on his condition on December 19, 1995, and he 

had Dr. Moore send further information after he received 

Pathmark's May 1996 letter; therefore, we cannot say that 

he is unarguably responsible for the misunderstanding. 

Except for the limited period noted above, judgment as a 

matter of law for Pathmark is inappropriate, because a 

reasonable jury could find that Taylor was not responsible 

for the error. In that case, Pathmark could be liable, even 

if its mistake were otherwise innocent. But on remand, 

Pathmark has a possible defense of reasonability, which we 

describe in greater detail in the next section. 

D. A Limited Reasonability Defense 

Because the ADA imposes extensive requirements on 

employers and covers a broad range of conditions, new 

puzzles seem to arise from every case. Deane announced 

our conclusion that employer mistakes can lead to 

"regarded as" liability. The question then becomes: What 

limits, if any, are there to this principle? There are no clear 

answers in our precedent, the statute, the legislative 

history, or the EEOC's interpretive guidelines. We must, 

 19 
however, answer the question to resolve this case. We 

believe that guidance can be found in the general logic of 

the ADA, which requires an interactive relationship between 

employer and employee, and concomitantly requires an 

individualized evaluation of employees' impairments. See 

Taylor v. Phoenixville Sch. Dist., No. 98-1273, ___ F.3d ___, 

1999 WL 184138 (3d Cir. Apr. 5, 1999).6 

While prejudice is not required for a successful"regarded 

as" claim, we recognize that the ADA has as a major

purpose the protection of individuals who are subject to 

stereotypes about their abilities. An employer who regards 

a kind of impairment--epilepsy, for example--as 

disqualifying all people affected by the impairment for a 

wide range of jobs is thus not entitled to a defense of 

reasonable mistake; under the ADA, it is the employer's 

burden to educate itself about the varying nature of 

impairments and to make individualized determinations 

about affected employees. However, there is no evidence in 

this case that Pathmark decisionmakers were infected with 

stereotypes or prejudice against the disabled. In situations 

such as this one, which do not involve prejudice, we think 

that a limited defense best serves the aims of the ADA: If 

the employer is factually mistaken about the extent of an 

employee's impairment, and the employee or his agent is 

responsible for the mistake, the employer is not liable 

under the ADA.7 

_________________________________________________________________ 

6. We are also influenced by the Supreme Court's decisions in Faragher 

v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, 

Inc. 

v. Ellerth, 524 U.S. 742 (1998). In those cases, the Court determined 

that general principles of agency law justified imposing Title VII 

liability 

on employers for sexual harassment committed by supervisors, but 

defined an affirmative defense to liability in order to give employers 

incentives to create effective anti-harassment programs. The details of 

the defense were dictated by concerns for logic and equity, not by Title 

VII's explicit provisions. We take the same path here. 

7. We note that it will not always be immediately clear whether a 

particular physician is an employee's agent. For example, whereas in 

Delaware, a worker seeking workers' compensation has a right to select 

an independent physician, see 19 Del. Code Ann. S 2323 (1998), the 

Pennsylvania Workers' Compensation Act allows an employer to 

establish a list of designated physicians or health care providers, and an 

 20 
We emphasize that it is not reasonable for an employer to 

extrapolate from information provided by an employee 

based on stereotypes or fears about the disabled, and we 

think that the distinction between the effects of a type of 

impairment and an impairment's extent adequately 

captures the distinction: A belief that anyone with bipolar 

disorder or HIV infection is substantially limited in a major 

life activity is a conclusion about the effects of the 

impairment and only secondarily about the particular 

employee. An employer with such a belief is failing to make 

an individualized determination, as the ADA requires, and 

thus acts at its peril. If an employer believes that a 

perceived disability inherently precludes successful 

performance of the essential functions of a job, with or 

without accommodation, the employer must be correct

about the affected employee's ability to perform the job in 

order to avoid liability; there is no defense of reasonable 

mistake. Any other outcome would defeat the ADA's 

attempt to eradicate what may be deeply rooted and 

seemingly rational presumptions about the abilities of the 

disabled. 

By contrast, a mistake about the extent of a particular 

employee's impairment made in the course of an 

individualized determination is further from the core of the 

ADA's concern, and a reasonability defense adequately 

protects employees' interests in not being erroneously 

regarded as disabled. We reaffirm that an employer is liable 

for mistakenly regarding an employee as disabled, unless 

the employer's perception is based on the employee's 

_________________________________________________________________ 

employee may be required to visit one of those on the list in order to 

maintain a workers' compensation claim, see 77 Pa. Stat. Ann. S 531(1)(I) 

(1998). An employer's employment, ownership, or control of such 

physicians or health care providers must be disclosed in order for them 

to be placed on the list. Even if the providers on the list are 

independent, 

if the employer designates them and relies on their judgments, the onus 

may well be on the employer, rather than the employee, to correct their 

mistakes. It is also possible that the list will consist of independent 

providers negotiated by the employees' labor union and the employer. 

See 77 Pa. Stat. Ann. S 1000.6(a)(3) (1998). We express no opinion on all 

these agency issues, which are not present here and will have to be 

resolved on a case-by-case basis. 

 21 
unreasonable actions or omissions. The limited exception to 

liability for mistakes can be expressed as follows: If an 

employer regards a plaintiff as disabled based on a mistake 

in an individualized determination of the employee's actual 

condition rather than on a belief about the effects of the 

kind of impairment the employer regarded the employee as 

having, then the employer will have a defense if the 

employee unreasonably failed to inform the employer of the 

actual situation.8 

This rule is consistent with our decision in Deane, in 

which we emphasized the employer's failure to take 

reasonable steps to learn the true extent of the plaintiff 's 

impairment. See Deane, 142 F.3d at 145. In Deane, we 

found a genuine issue of material fact as to whether the 

plaintiff had been perceived as disabled where the record 

documented confusion among the relevant decisionmakers 

as to the extent of the plaintiff 's physical impairment. See 

Deane, 142 F.3d at 145. Pathmark attempts to distinguish 

Deane by noting that the defendants in that case relied on 

a short phone conversation with the plaintiff to conclude 

that she could not perform any available job. The Deane 

court noted that the defendants did not evaluate the 

plaintiff, contact her physician, or independently review her 

medical records, but relied on one phone conversation with 

her. See Deane, 142 F.3d at 145. By contrast, Pathmark 

relied on Dr. Moore's medical report. 

The Deane facts do not define the outer limits of liability. 

Pathmark apparently made a significant error in treating 

_________________________________________________________________ 

8. We recognize that there is a continuum of perceptions and that there 

will be difficult cases, but we think that our formulation provides 

appropriate guidance. For example, an employer who is informed that a 

particular individual has epilepsy might overestimate the limiting effects 

of that individual's epilepsy because of a general perception about the 

severity of epilepsy. If the employer mistakenly overestimates the degree 

of a person's impairment based on perceptions about the nature of the 

impairment, it is not basing its decision on an individualized evaluation. 

Moreover, the employer's defense would fail in such a case because the 

employee would have done nothing unreasonable in informing the 

employer of her condition. The employer should seek further specific 

information about the extent of the employee's impairment before it 

concludes that the employee is disabled. 

 22 
Taylor's temporary restrictions as permanent. Taylor also 

offered evidence that Pathmark did not engage in a process 

of communication and cooperation, as we counseled 

employers to do in Deane. See id. at 149.9 Additionally, 

Pathmark argues that Taylor acted unreasonably under the 

circumstances: He waited until after the ADA Committee 

made its decision to have his doctor submit a new report. 

However, Taylor did not know until the May letter that 

Pathmark considered him permanently unable to work, and 

he did communicate with Pathmark in December 1995, 

approximately five months before he was fired, about his 

reduced restrictions. 

While Pathmark argues that Taylor bears the "lion's

share" of responsibility for any miscommunication that 

occurred, there is evidence to the contrary. Taylor appears 

to have consistently sought reinstatement. Pathmark's own 

electronic mail suggests that his saga included"glitches." 

Pathmark waited approximately seven months after the 

ADA Committee considered his case to send him notice that 

he was terminated, apparently because of an oftenpostponed meeting of counsel. The ADA Committee itself 

did not meet on Taylor's case for one year after Pathmark's 

doctor last examined him, which constitutes a significant 

delay. Moreover, the record reflects that an outside 

consultant advised Pathmark that "sharp disparities" 

between Taylor's self-report and Dr. Moore's evaluation led 

her to "strongly advise that an attempt be made to resolve 

the discrepancies." 

While there are no fixed rules for what an ADA plaintiff 

must do to correct an employer's expressed misperception, 

we think that a jury could find that Taylor did not act 

unreasonably in these circumstances and that Pathmark 

was responsible for the misunderstanding. Reasonability is 

_________________________________________________________________ 

9. Pathmark also seeks to distinguish Deane by noting that there was a 

factual dispute in that case as to whether lifting was an essential 

function of the job, and there is no such dispute here. But that question 

goes to a totally different element of the plaintiff 's case, which is 

whether the plaintiff is qualified to perform the essential functions of 

the 

job. Taylor is not saying that Pathmark was wrong about the job 

description; he is arguing that Pathmark was wrong about him, at least 

after December 1995. 

 23 
a fact-specific test, and, of course, the employee must have 

reason to know of the basis of the employer's decision 

before he can unreasonably fail to correct a mistake. This 

rule will encourage communication between employer and 

employee, in the same way that the interactive process for 

determining reasonable accommodations does. See Taylor, 

___ F.3d at ___ (discussing the requirements of the

interactive process). 

E. Actual Causation 

Pathmark argues that it never regarded Taylor as 

disabled. It states that, when Dr. Moore gave it updated 

information in June 1996, it then understood that Taylor's 

restrictions were no longer as serious as they had 

previously been. Arguably, Pathmark simply decided not to 

take Taylor back, even knowing that he could work, until 

July 1997.10 

Taylor responds that we cannot simply take Pathmark's 

word that it knew he was not disabled but refused to act on 

that information, since Taylor was never privy to its "secret 

thought processes." In this posture, Taylor's argument is 

persuasive. If we were to accept Pathmark's argument, a 

plaintiff 's attempts to disabuse an employer's 

misperceptions about his disability could be used to 

eviscerate a "regarded as" claim; this would encourage 

potential plaintiffs to avoid communicating with employers 

and begin litigation that might otherwise be avoided. 

Particularly given the reasonability defense set forth in the 

previous section, we think that Pathmark cannot rely solely 

on Taylor's communications with it to prove that Pathmark 

did not regard him as disabled after June 1996. 

We note in this regard that the lack of internal 

communication, to which Pathmark appeals when asking 

us to excuse its reliance in 1994 on the various conflicting 

doctors' notes, could also have left Pathmark with a 

_________________________________________________________________ 

10. If the contention were that Pathmark used Taylor's disability as a 

pretext for ridding itself of an employee with seniority under the union 

collective bargaining agreeement, Taylor would not have a successful 

claim that he was regarded as disabled. The ADA prohibits 

discrimination, not action taken using discrimination as a pretext. 

 24 
continuing erroneous belief about Taylor. The ADA 

Committee, by its member's own testimony, never learned 

why Taylor was not accommodated and rehired, and a 

reasonable jury could conclude that the relevant Pathmark 

decisionmakers--apparently Pathmark counsel, in this case 

--continued to regard Taylor as disabled. 

F. Remaining Issues 

Pathmark also argues that Taylor never proved that there 

was a job that he could do that was open during the

relevant time period. As Pathmark points out, it has no 

duty to create a special job for a disabled person. See 

EEOC Technical Assistance Manual at 90.0530 (an 

employer is not required to create a new job or bump an 

employee from an existing job as a reasonable 

accommodation); cf. Shiring v. Runyon, 90 F.3d 827 (3d Cir. 

1996) (reaching the same result under the functionally 

identical Rehabilitation Act). Specifically, Pathmark argues 

that Taylor never proved that there was an available frozen 

food manager position during the relevant period; his old 

job was filled before he returned in 1992, and nothing in 

the record shows that there was a vacancy thereafter. 

Unless there was a frozen food vacancy, Pathmark 

persuasively reasons, there can be no causal connection 

between Pathmark's perception of Taylor's abilities and its 

failure to give him the frozen food job. Taylor responds that 

he did not pursue the frozen food job more aggressively 

because his union representative was told that he was 

going to be put back to work. This is an issue of fact to be 

resolved on remand. 

Taylor also suggests that he would have wanted to be 

considered for a cashier job, and there apparently were 

cashier vacancies for which the ADA Committee could have 

considered him. Pathmark's own ADA manuals suggested 

that cashier jobs did not require extended walking and 

standing. Furthermore, under the ADA the employer may 

be required to participate with a covered employee to 

identify a vacant position that the employee can perform, as 

employees may otherwise lack the ability to identify such 

positions. See Taylor, ___ F.3d at ___, slip op. at 35-36; 

Mengine v. Runyon, 114 F.3d 415, 420 (3d Cir. 1997). 

Therefore, there is at least a genuine and material issue as 

 25 
to whether Pathmark would have had a position for Taylor 

in 1996. 

If Taylor prevails, the District Court might have to decide 

in the first instance whether a "regarded as" plaintiff is 

entitled to accommodation even though he is not disabled. 

We have yet to resolve this issue. On the one hand, the 

statute does not appear to distinguish between disabled 

and "regarded as" individuals in requiring accommodation. 

On the other, it seems odd to give an impaired but not 

disabled person a windfall because of her employer's 

erroneous perception of disability, when other impaired but 

not disabled people are not entitled to accommodation. See 

Deane, 142 F.3d at 149 n.12. 

The debate over accommodation has heretofore focused 

on what constitutes a "reasonable accommodation," not on 

the definition of "accommodation" vel non. In its natural 

meaning, an "accommodation" would seem to be some 

change in the way the employer normally requires or allows 

the job to be done.11 If the employer routinely allows 

employees to perform a job in one of several ways and an 

employee chooses one of those ways, perhaps in order to 

alleviate an impairment that does not rise to the level of a 

disability, then there would not seem to be any 

"accommodation" involved. 

In this case, the requested "accommodation" is the use of 

a milk crate to sit on while stocking lower shelves. This 

may or may not be a true accommodation, and it might 

therefore be unnecessary to reach the difficult question of 

entitlement to accommodation. See App. at A256 

(vocational rehabilitation specialist testified that "I believe 

there would be little or no real accommodation necessary" 

_________________________________________________________________ 

11. Webster's Third New International Dictionary defines 

"accommodation" as, inter alia, "something that is supplied for 

convenience or to satisfy a need," "the provision of what is needed or 

desired for convenience," or "adaptation, adjustment." Webster's Third 

New International Dictionary 12 (1966). The last definition seems most 

appropriate to the context of the ADA. None of these definitions would 

make the standard conditions of a workplace "accommodations," as 

preexisting conditions or practices would not be "supplied" or "provided" 

to take account of an employee's disability. 

 26 
for the frozen food job); id. at A257-58 (reaching the same 

conclusion about stock jobs). Pathmark's representative 

testified that use of a milk crate created "safety issues," but 

this was called into question on cross-examination, and 

Taylor testified that he used a milk crate to do his job for 

fourteen months without objection from Pathmark. 

Moreover, Taylor's expert, Yohe, testified that the use of 

milk crates was standard in supermarket stocking 

generally. There is thus a material issue of fact as to 

whether use of a milk crate was a standard way to perform 

stocking duties at Pathmark. 

Furthermore, even if use of a milk crate is an 

accommodation and Taylor is not entitled to 

accommodation, he may well be entitled to other forms of 

relief, such as injunctive relief and damages, as well as 

attorney's fees, and so the accommodation question is not 

critical to the success of his claim. See Deane, 142 F.3d at 

149 n.12. 

IV. Conclusion 

This factually complex case presents us with novel issues 

under what may be the most difficult part of a difficult 

statute. Adhering to our precedent that mistakes may lead 

to liability under the ADA, we hold that, in this case, a jury 

could find Pathmark responsible for its mistaken 

impression of Taylor's abilities, and that a jury could also 

find a causal link between Pathmark's mistake and its 

failure to rehire Taylor in one of his former positions. 

However, Taylor does not suffer from an actual disability. 

For the foregoing reasons, we will affirm the judgment of 

the District Court on Taylor's actual disability claim, affirm 

it on Taylor's "regarded as" claim from September 1995 to 

December 19, 1995, and reverse it on the "regarded as" 

claim for the period following December 19, 1995. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 27