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. e du/thir dc ir c uit_1999/138Filed 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 Jud ges 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 Ju dge 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 Disabilit ies Act ("ADA"). The plaintiff, Joseph B. Taylor, sued Pathmark Stores, Inc. ("Pathmark") in the District Court, al leging that Pathmark had discriminated against him on the basis of his disability or, in the alternative, that Pathmar k wrongly regarded him as disabled. The District Court grante d judgment as a matter of law for Pathmark on both cl aims. We will affirm the District Court's judgment on Tay lor's claim that he was disabled within the meaning of th e ADA, but reverse the judgment insofar as the District Co urt determined that Taylor was not regarded as disabled for the period between December 1995 and his rehiring in Ju ly 1997. In so doing, we reaffirm that, to successfull y claim that he was wrongly regarded as disabled from worki ng, a plaintiff need not be the victim of negligence or m alice; an employer's innocent mistake (which may be a functio n of "goofs" or miscommunications) is sufficient to subj ect it to liability under the ADA, see Deane v. Pocono Med. C tr., 142 F.3d 138, 143 n.4 (3d Cir. 1998) (en banc), althoug h the employer's state of mind is clearly relevant to the appropriate remedies. We recognize, however, a limi ted defense of reasonable mistake where the employee is responsible for the employer's erroneous perception and the

2employer's perception is not based on stereotypes a bout

disability. Under these tests, material issues of f act remain

for resolution at trial.

Because of its structure and subject matter, the AD A is often a difficult statute for courts and employers to interpret and, sometimes, to follow. This case is a lso a difficult one, not only conceptually but also becau se of the odd (if not convoluted) factual background, punctua ted 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 wa s eventually promoted to frozen food manager. In Dece mber 1991, he slipped on a piece of cellophane at work a nd 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. T aylor aggravated the injury in January 1992 when he fell down a flight of stairs. He took time off from work, and w hen he

returned in November 1992 he was told that the froz en 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 cra te 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 ofte n allowed to work on the "bag your own" register at which cus tomers 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 wa s working on light-duty assignments, Taylor wore eith er 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 wa s productive and Pathmark's manager considered him a problem-free employee.

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

to provide an updated note from his doctor setting forth any continuing restrictions on work assignments. His fa mily doctor, Dr. Moore, provided a note stating that Tay lor could continue to work, but without prolonged standing. L ater that month, without Taylor's knowledge, Pathmark's corporate headquarters sent a request for an update d record for Taylor to his orthopaedic specialist, Dr . Gelman. Dr. Gelman replied, in an April 7, 1994, letter, th at he had not seen Taylor since December of 1993 but that he believed that Taylor could return to work without a ny restrictions, basing his opinion on the fact that T aylor had

not returned to see him.

Relying on Dr. Gelman's letter, Taylor's manager to ld him on April 29 that he had to work a full-duty cash re gister for a day. Taylor felt that he could not comply, refuse d, and eventually left the store. He contacted Pathmark's workers' compensation representative and learned for thefirs t time of Dr. Gelman's letter. He sought an examination wi th Dr. Gelman, after which, on May 5, the doctor sent Path mark 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 man ager and

he was not asked to return to work. Pathmark's inte rnal email suggested that there was a "glitch" in this s eries of events because of Dr. Gelman's initial problematic evaluation. Taylor's store manager likewise admitte d that

Dr. Gelman's first letter was incorrect and that Dr . Moore's note was probably more accurate, but the manager wa s never given Dr. Gelman's updated note of May 5. Whe n Taylor called his manager about getting back on a w ork 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 t he first visit, Dr. Case wrote to Pathmark counsel that Tayl or 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 a ir 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 tes timony that Case instructed Taylor to do so.

4Pathmark apparently took no action for approximatel y 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 tempo rarily subject to increased work restrictions due to an ag gravation of his ankle injury in July 1995. The form Pathmark provided allowed him to check either "permanent" or "temporary," and Dr. Moore checked "temporary," wri ting 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 be en lifted and that he could work under his permanent limitati ons 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 se ven 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, sta ted 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 restrict ions allowed Taylor to: stand one hour at a time up to f our 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 n ever over twenty pounds; and occasionally bend, squat, c limb, and reach. The letter further stated that Taylor's restrictions precluded crawling or repetitive pushi ng and pulling of leg controls and required breaks to be t aken 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 ac tivities are such that any reasonable accommodation which Pathmark might provide are insufficient to e nable 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 reachin g

* Extended standing and walking

Furthermore, your restrictions are such tha t you cannot perform the essential functions of an y other available position, all of which require ext ended standing and/or walking and regular reaching . We have been advised your restrictions are perm anent.

App. at A55-56 (emphasis added).

After Taylor received this letter, he contacted Dr. Moore, who clarified his position that Taylor had been tem porarily, but not permanently, heavily restricted and that Ta ylor could work with either ten minute rest breaks per h our or the use of a cane or crutch. Pathmark asked Dr. Moo re to fill out a new capabilities form, which he did on J une 19, 1996, restating these restrictions, but Taylor was not reinstated. There was testimony that the ADA Commit tee realized that its May 13 letter was mistaken, but i t never reconsidered Taylor or looked into giving him a cas hier's job with a stool, though he could have been accommodate d. Instead, the Committee referred the matter to Pathm ark's legal department and heard no more about it. Meanwh ile, Pathmark's workers' compensation department was insisting that he could return to work full-time. F rom 1994 on, Taylor had regularly contacted Pathmark, asking for work, and his union representative had also tried t o get him back to work. After he was fired, he brought th is suit. He was rehired in July 1997, during the pendency of this litigation, and is currently employed as a third-sh ift nonfoods clerk.

Taylor argues that Pathmark should have given him a job that he could do. Pathmark's Store Operations Emplo yment Compliance Manual provides for reasonable accommoda tion in cashier positions for people who have trouble st anding for extended periods. Pathmark's ADA Training for Management Associates manual also suggests that sto ols 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 ha ve been considered for a cashier position with a stool. Mor eover, Taylor and his vocational expert, Thomas Yohe, offe red

6testimony that the frozen food manager job requires a

significant amount of book work, sales planning, sc hedule writing, looking up orders, checking bills, prepari ng signs, and using a computer, all of which can be done whil e sitting. This amounts to forty-five minutes to an h our of sitting per day. Combined with sitting during Taylo r'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, includi ng the frozen food manager job, with the "minor" accommodation of allowing him to use a milk crate t o sit on or to prop up his foot.

After Taylor had presented his evidence at trial, t he District Court granted "summary judgment" for Pathm ark.

It would be more accurate to state that the Distric t Court granted a motion under Fed. R. Civ. Proc. 50(a). Be cause the District Court dismissed the case after Taylor presented his evidence to a jury, Pathmark suggests that we s hould give increased deference to the trial judge. Unsurp risingly, Pathmark cites no authority for this proposition an d, since Taylor's claims were not in fact evaluated by his c hosen finder of fact, we disagree. At all events, Pathmar k concedes that the proper test is the standard one: We must v iew the facts in the light most favorable to Taylor.

II. Was Taylor "Disabled" Under the ADA? (Was He Substantially Limited in the Major Life Activ ities of Walking and Standing?)

Taylor's first theory is that he has a "disability" under the ADA, which covers impairments that substantially li mit 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 cond ition, manner

or duration under which an individual can pe rform a particular major life activity as compared t o the condition, manner or duration under which th e 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 facto rs are (1) the nature and severity of the impairment; (2) the duration or expected duration; and (3) the expected or actua l permanent or long-term impact of or resulting from the impairment. See 29 C.F.R. S 1630.2(j)(2). The impai rment 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 in tent in enacting the ADA, and explicitly found that approxi mately forty-three million Americans were disabled as of 1 990, see 42 U.S.C. S 12101(a)(1) (1998), which implies that the definition should not be so restricted that only th e most extremely impaired are covered.

Taylor testified that he walks with a slight limp a nd 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 no t require a cane or crutch. The District Court conclu ded that Taylor did not have a disability. Taylor objects th at the District Court drew incorrect inferences from his g irlfriend's testimony. She testified that Taylor takes the car out for one-and-a-half to three hours after dinner, that sh e did not know how much time he actually spent walking becaus e 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 sens ible. 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 disabili ty as

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

29 C.F.R. S 1630.2(j) App; cf. Deane, 142 F.3d at 1 43 n.4 (regulations are entitled to substantial deference) . We agree with the District Court that fifty minutes (per hou r) 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 s tairs slowly was not disabled. We concluded that the rest rictions 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 whic h walking problems were found not to constitute cover ed 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 per iods

was not disabled under the Rehabilitation Act's sim ilar definition); Penchisen v. Stroh Brewing Co. , 932 F . Supp. 671, 674 (E.D. Pa. 1996) (a woman with a metal plat e 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 46 9 (3d Cir.), cert. denied, 118 S. Ct. 178 (1997).

Taylor argues that Pathmark only allows one break e very two hours and that his need for a break every hour makes him function at less than fifty percent of a typica l Pathmark employee. The District Court responded that the sta ndard is one of comparison to the "average person in the general population." 29 C.F.R. S 1630.2(j)(1) (1996). Taylo r presented no evidence that Pathmark employees resem bled the general population in average ability, though h e did plausibly argue that Pathmark employed people of av erage ability. The more important point is that Taylor is mixing scales of measurement. That he can only stand for h alf as long as the average Pathmark employee, or average p erson, is not necessarily proof that he is substantially i mpaired in his ability to stand. The relevant question is whet her the difference between his ability and that of an avera ge 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 tak es a break every hour, he can carry out most regular act ivities

9that require standing and walking, even though he m ay

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 ave rage

person.

Taylor finally argues that the employee in Kelly ha d 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 sh oe to ease his pain and discomfort. Under our jurispruden ce, the determination whether a disability exists must be m ade by evaluating a person's impairment as it affects majo r life activities without the use of mitigating measures, even if the person uses such mitigating measures in regular activity. See Matczak v. Frankford Candy & Chocolat e 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 t o note that Taylor needed ameliorative footwear to maintai n his present level of mobility.

If Taylor had needed a cane or crutch to stand forf ifty minutes an hour, his argument would be persuasive. But there is no evidence that Taylor required an assist ive device to stand or walk for at least fifty minutes an hour . If he wanted to stand for longer, he needed a cane or cru tch, 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 perform ance 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. S ee 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 medicall y required to do so, and voluntary use could not meet his burden of proof). We have not been able to find evi dence in

___________________________________________________ ______________

2. The Supreme Court will decide this issue shortly . See Sutton v. United Air Lines, Inc., 119 S. Ct. 790 (1999), granting ce rt. to 130 F.3d 893 (10th Cir. 1997).

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

and we believe that occasional use of an air cast t o diminish discomfort does not raise Taylor's conditi on to the level of a disability.3 Therefore we will affirm th e District Court's judgment on the issue of whether Taylor was actually substantially limited in the major life ac tivity of walking.

III. Was Taylor "Regarded as" Disabled?

A person is "regarded as" having a disability if th e

person:

(1) Has a physical or mental impairment that does not substantially limit major life activities bu t is treated by the covered entity as constituting such limi tation;

(2) Has a physical or mental impairment that substantially limits major life activities o nly as a result of the attitudes of others toward such impai rment; or

(3) Has [no such impairment] but is treated by a covered entity as having a substantially lim iting impairment.

29 C.F.R. S 1630.2(l) (1996). Taylor argues that Pa thmark regarded him as disabled by virtue of the ADA Commi ttee'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 th is 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 podi atrist for his ankle pain and wrote, "Hopefully, only conservative measu res will be needed such as a brace or an orthotic." Taylor has identif ied 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 o f fact exists about

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

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

Committee responded with a letter stating "We have been advised your restrictions are permanent." The Octob er 1995 evaluation, which occurred after Taylor temporarily aggravated his ankle, described severe limitations on many important activities such as lifting and walking, l imits that were far greater than those imposed by Taylor's per manent ankle impairment. A reasonable jury could therefore conclude that Pathmark erroneously regarded him as disabled. As Taylor notes, the statement in Pathmar k's May 1996 letter that he was unable to perform any Pathm ark job, even with accommodation, suggests a perception of limits that would likely constitute substantial lim itation on many major life activities. This is not a case wher e Pathmark stated that he was unable to perform a par ticular job; it appears to have considered him incapable of performing a wide range of jobs, indeed, any jobs t hat required significant standing, walking, lifting, or moving about (i.e., most jobs in a supermarket).

Several cases support our conclusion that, in gener al, an employer's perception that an employee cannot perfo rm 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 tha t the plaintiff had proved a "regarded as" claim when, af ter receiving information from the plaintiff's doctor, the employer immediately placed the plaintiff on no-wor k 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 tha t the plaintiff could not perform any available jobs in a production plant created a material issue of fact o n a "regarded as" claim. More generally, if an impairme nt at a certain level of severity would constitute a disabi lity, 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 ind ividual from performing any heavy labor job would be substa ntially limited in the major life activity of working becau se the individual's impairment eliminates his or her abili ty to perform a class of jobs.").

12The District Court, however, rejected Taylor's "reg arded

as" claim. The court reasoned:

The thrust of Plaintiff's claim . . . is bas ed on

Defendant's failure to accommodate Plaintiff 's physical impairment. Plaintiff asserts that based on Dr. Gelman's April 7th note, which stated that P laintiff could work without restrictions, Defendant d emanded on April 29, 1994 that Plaintiff perform the cashier's job. Plaintiff contends that he could not pe rform the cashier's job as requested because he was su bstantially limited in a major life activity and therefo re disabled . . . . On the other hand, Plaintiff argues that he was wrongfully "regarded as" disabled by his emp loyer with respect to him being employed in the frozen food manager's job, which Plaintiff asserts he co uld have done without any accommodation by the Defend ant.

. . .

Essentially, the Plaintiff is asking the De fendant 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 wor ked for a period of fifteen months asserting these res trictions 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 th at Plaintiff perform a job affording no accommodation for his impairment. Plaintiff then asserted that he was disabled. Plaintiff now claims that he was n ot disabled and should not have been regarded as such by the

Defendant in the context of Plaintiff 's des ire to be assigned as a frozen food manager.

Plaintiff proposes an apparently impossible situation for an employer. On the one hand, an employe r must acknowledge the medical restrictions needed by an employee, while on the other hand it must ig nore those same medical restrictions when the employee believes the restrictions might affect his assignment to a desired position.

13Slip op. at 14 (citations omitted).

We will first consider the District Court's reasoni ng about the conflicts between Taylor's two claims and the t ime 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 D istrict Court concluded that Taylor was proffering both a t heory that he was disabled and a theory that he was wrongly regarded as disabled, which theories underc ut one another. However, a plaintiff may plead in the alte rnative, and our caselaw finds no difficulty with pairing th e two claims in one complaint. In Olson v. General Electr ic Astrospace, 101 F.3d 947 (3d Cir. 1996), we express ed no discomfort in denying summary judgment on a "regard ed as" claim where the plaintiff had also alleged actu al disability, although "the evidence that was apparen tly offered to demonstrate [his] fitness as an employee ironically establishes that he was not substantiall y limited in a major life activity." Id. at 953. Similarly, i n 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 togethe r. See also Koblosh v. Adelsick, No. 95C5209, 1996 U.S. Di st. 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 t he standard measures for deterring frivolous or bad-fa ith complaints. Nor is Taylor's position intrinsically contradictory, as he could have an impairment (whet her or not it rose to the level of a disability) that coul d actually be accommodated, despite Pathmark's perception that hi s disability was too severe to accommodate.

At all events, we disagree with the District Court' s description of Taylor's claims. Taylor did not clai m that he was "not disabled" with respect to the frozen food manager job, as the court suggested; he claimed that the jo b's requirements did not interact with his disability i n a way

14that prevented him from doing the job or that requi red

accommodation (beyond allowing him to rest his leg on a milk crate from time to time, a measure that may no t even technically be an accommodation and that we discuss further infra). The distinction is highlighted by t he example of a deaf person who claims that he is qualified fo r a job that involves converting handwritten notes into wor d processing files: He would not be "not disabled" wi th 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 pu tting Pathmark in an impossible situation because Pathmar k would be potentially liable if it accommodated Tayl or 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 n ot 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-A pril 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 t he possibility of jury confusion on this issue, it mig ht be appropriate to instruct the jury that Pathmark's vo luntary accommodations, which are apparently formalized and routinized in Pathmark's employment manuals, are no t evidence of a perception of disability.

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

We agree with the District Court that Pathmark rega rded 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 rece ived 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 job s.

15Taylor notes that he provided Pathmark with a lette r on

December 19, 1995, that stated that his restriction s 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 factfind er could conclude that Taylor was not so impaired that he co uld not work at all after that point, and therefore that Pa thmark's misunderstanding of his condition prevented him fro m getting work at Pathmark for some period after Dece mber 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 ar gues 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 fou nd an ADA "regarded as" cause of action. As Pathmark puts it, "For as long [as] Dr. Moore's report led Pathmark to believ e that Taylor required a sedentary position, Pathmark was entitled to act accordingly." Pathmark's broad assertion can not 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 necessar ily be determinative. The fact is that Dr. Moore's report labelled Taylor's restrictions "temporary," not permanent. A t all events, Taylor never provided Pathmark with the con clusion that he was substantially limited in a major life a ctivity such that there were no jobs at Pathmark that he co uld perform, with or without accommodation. This case i s dominated by miscommunications and misinterpretatio ns,

16and one of the points of "regarded as" protection i s that

employers cannot misinterpret information about an employee's limitations to conclude that the employe e is incapable of performing a wide range of jobs.

We find the cases Pathmark cites on reasonable reli ance to be inapposite. In Wooten v. Farmland Foods, 58 F .3d 382 (8th Cir. 1995), for example, the court held that t he 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 wer e not based on stereotype or myth but on a doctor's writt en restrictions. But the law in this circuit is that a "regarded as" plaintiff can make out a case if the employer i s innocently wrong about the extent of his or her imp airment:

Although the legislative history indicates t hat Congress was concerned about eliminating society's my ths, fears, stereotypes and prejudices with respect to t he disabled, the EEOC's Regulations and Interpretive Guid elines make clear that even an innocent mispercepti on based on nothing more than a simple mistake of fac t 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 disabili ty. Thus whether or not [the defendant] was motivated by myth, fear or prejudice is not determinative of [t he plaintiff 's] "regarded as" claim.

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

Similarly, Riemer v. Illinois Department of Transpo rtation, 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 rep ort, led it to exclude the plaintiff from an entire class of jo bs, 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 conditio n he never had--and takes adverse action, it has violate d the statute . . . ." Id. at 819; see also Dipol, 999 F. Supp. at 314

17(the fact that the employer, after receiving inform ation from

a doctor, immediately placed the plaintiff on no-wo rk status made out a "regarded as" claim); Mendez v. Gearan, 956 F. Supp. 1520, 1525 (N.D. Cal. 1997) (employer's mista ken perception that a temporary impairment was permanen t could found a "regarded as" claim).4

We acknowledge the force of Pathmark's argument tha t it relied on information supplied by Taylor's doctor i n concluding that it had no job available that met hi s restrictions during the period from October 1995 to December 1995 (Taylor informed Pathmark that the se vere restrictions had been lifted on December 19). Taylo r has not disputed that he did, in fact, have those tempo rarily heightened restrictions after the aggravation of hi s ankle injury. We conclude that a directed verdict as to t hat period was proper, because he has not disputed Pathmark's claim that restrictions of such severity precluded him fr om any Pathmark jobs, even with accommodation.

Pathmark further argues that it was reasonable to r ely on Dr. Moore's first evaluation until June 1996, when Dr. Moore filled out an updated questionnaire.5 We cann ot, however, say that Pathmark's reliance on Dr. Moore' sfirst report necessarily excuses it entirely from liabili ty. An employer can rely on an employee's information abou t restrictions, but it has to be right when it decide s that those restrictions are permanent and that they prev ent the employee from performing a wide class of jobs, as o pposed

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4. Dotson v. Electro-Wire Products, Inc., 890 F. Su pp. 982 (D. Kan. 1995), another case cited by Pathmark, is distinguishable. In that case, the physician's note at issue did not describe an impai rment that could reasonably be thought to substantially limit the pl aintiff 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 co nsidered her incapable of doing the general class of job. See id. at 991. In contrast, Pathmark sent Taylor a letter saying that his restrictions w ere permanent and that

he was fired.

5. Pathmark characterizes this second questionnaire as a "changed" diagnosis. This is arguably a critical misdescripti on, 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 lifte d.

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

and erroneously, believes that a person is incapabl e of performing a particular job will not be liable unde r the ADA. Liability attaches only to a mistake that caus es the employer to perceive the employee as disabled withi n 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 t o ADA liability. Yet if the relevant decisionmakers wrong ly believed that Taylor was completely unable to work because o f miscommunication within Pathmark, the ADA puts on Pathmark the burden of correcting the problem, rath er 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 u pdated information on his condition on December 19, 1995, and he

had Dr. Moore send further information after he rec eived Pathmark's May 1996 letter; therefore, we cannot sa y that he is unarguably responsible for the misunderstandi ng.

Except for the limited period noted above, judgment as a matter of law for Pathmark is inappropriate, becaus e a reasonable jury could find that Taylor was not resp onsible for the error. In that case, Pathmark could be liab le, even

if its mistake were otherwise innocent. But on rema nd, Pathmark has a possible defense of reasonability, w hich 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, n ew puzzles seem to arise from every case. Deane announ ced 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 legislat ive history, or the EEOC's interpretive guidelines. We must,

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

believe that guidance can be found in the general l ogic of the ADA, which requires an interactive relationship between employer and employee, and concomitantly requires a n 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"re garded as" claim, we recognize that the ADA has as a major purpose the protection of individuals who are subje ct 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 defens e of reasonable mistake; under the ADA, it is the employ er's burden to educate itself about the varying nature o f impairments and to make individualized determinatio ns about affected employees. However, there is no evid ence in

this case that Pathmark decisionmakers were infecte d with stereotypes or prejudice against the disabled. In s ituations such as this one, which do not involve prejudice, w e 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 agen t is responsible for the mistake, the employer is not li able

under the ADA.7

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6. We are also influenced by the Supreme Court's de cisions in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Bur lington Industries,

Inc. v. Ellerth, 524 U.S. 742 (1998). In those cases, th e Court determined that general principles of agency law justified imp osing Title VII liability on employers for sexual harassment committed by sup ervisors, but defined an affirmative defense to liability in orde r to give employers incentives to create effective anti-harassment prog rams. 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 he re.

7. We note that it will not always be immediately c lear whether a particular physician is an employee's agent. For ex ample, whereas in Delaware, a worker seeking workers' compensation ha s a right to select an independent physician, see 19 Del. Code Ann. S 2 323 (1998), the Pennsylvania Workers' Compensation Act allows an em ployer to establish a list of designated physicians or health care providers, and an

20We emphasize that it is not reasonable for an emplo yer to

extrapolate from information provided by an employe e based on stereotypes or fears about the disabled, a nd 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 particula r employee. An employer with such a belief is failing to make an individualized determination, as the ADA require s, and thus acts at its peril. If an employer believes tha t a perceived disability inherently precludes successfu l performance of the essential functions of a job, wi th or without accommodation, the employer must be correct about the affected employee's ability to perform th e job in order to avoid liability; there is no defense of re asonable 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 partic ular employee's impairment made in the course of an

individualized determination is further from the co re of the ADA's concern, and a reasonability defense adequate ly protects employees' interests in not being erroneou sly regarded as disabled. We reaffirm that an employer is liable for mistakenly regarding an employee as disabled, u nless the employer's perception is based on the employee' s

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employee may be required to visit one of those on t he 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 con trol of such physicians or health care providers must be disclos ed 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 employ ee, to correct their mistakes. It is also possible that the list will co nsist of independent providers negotiated by the employees' labor union and the employer. See 77 Pa. Stat. Ann. S 1000.6(a)(3) (1998). We exp ress no opinion on all these agency issues, which are not present here and will have to be resolved on a case-by-case basis.

21unreasonable actions or omissions. The limited exce ption 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 employ ee as having, then the employer will have a defense if th e 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 pl aintiff 's impairment. See Deane, 142 F.3d at 145. In Deane, w e found a genuine issue of material fact as to whethe r the plaintiff had been perceived as disabled where the record documented confusion among the relevant decisionmak ers as to the extent of the plaintiff 's physical impai rment. See Deane, 142 F.3d at 145. Pathmark attempts to distin guish Deane by noting that the defendants in that case re lied on a short phone conversation with the plaintiff to co nclude that she could not perform any available job. The D eane court noted that the defendants did not evaluate th e plaintiff, contact her physician, or independently review her medical records, but relied on one phone conversati on with her. See Deane, 142 F.3d at 145. By contrast, Pathm ark relied on Dr. Moore's medical report.

The Deane facts do not define the outer limits of l iability. Pathmark apparently made a significant error in tre ating

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8. We recognize that there is a continuum of percep tions and that there will be difficult cases, but we think that our form ulation provides appropriate guidance. For example, an employer who is informed that a particular individual has epilepsy might overestima te the limiting effects of that individual's epilepsy because of a general perception about the severity of epilepsy. If the employer mistakenly ov erestimates the degree of a person's impairment based on perceptions about the nature of the impairment, it is not basing its decision on an ind ividualized evaluation. Moreover, the employer's defense would fail in such a case because the employee would have done nothing unreasonable in in forming the employer of her condition. The employer should seek further specific information about the extent of the employee's impa irment before it concludes that the employee is disabled.

22Taylor's temporary restrictions as permanent. Taylo r 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 Addition ally, Pathmark argues that Taylor acted unreasonably unde r the

circumstances: He waited until after the ADA Commit tee

made its decision to have his doctor submit a new r eport. However, Taylor did not know until the May letter t hat Pathmark considered him permanently unable to work, and he did communicate with Pathmark in December 1995, approximately five months before he was fired, abou t his

reduced restrictions.

While Pathmark argues that Taylor bears the "lion's share" of responsibility for any miscommunication t hat occurred, there is evidence to the contrary. Taylor appears to have consistently sought reinstatement. Pathmark 's own electronic mail suggests that his saga included"gli tches." Pathmark waited approximately seven months after th e ADA Committee considered his case to send him notic e thathe was terminated, apparently because of an oftenpostponed meeting of counsel. The ADA Committee its elf did not meet on Taylor's case for one year after Pa thmark's doctor last examined him, which constitutes a signi ficant delay. Moreover, the record reflects that an outsid e consultant advised Pathmark that "sharp disparities " between Taylor's self-report and Dr. Moore's evalua tion led her to "strongly advise that an attempt be made to resolve the discrepancies."

While there are no fixed rules for what an ADA plai ntiff must do to correct an employer's expressed misperce ption, we think that a jury could find that Taylor did not act unreasonably in these circumstances and that Pathma rk was responsible for the misunderstanding. Reasonabi lity is

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9. Pathmark also seeks to distinguish Deane by noti ng 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 h ere. But that question goes to a totally different element of the plaintif f 's case, which is whether the plaintiff is qualified to perform the e ssential functions of

the job. Taylor is not saying that Pathmark was wrong a bout the job description; he is arguing that Pathmark was wrong about him, at least

after December 1995.

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

reason to know of the basis of the employer's decis ion before he can unreasonably fail to correct a mistak e. This rule will encourage communication between employer and employee, in the same way that the interactive proc ess for determining reasonable accommodations does. See Tay lor, ___ 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 up dated information in June 1996, it then understood that T aylor'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 t o act on that information, since Taylor was never privy to i ts "secret thought processes." In this posture, Taylor's argum ent is persuasive. If we were to accept Pathmark's argumen t, a plaintiff 's attempts to disabuse an employer's misperceptions about his disability could be used t o eviscerate a "regarded as" claim; this would encour age potential plaintiffs to avoid communicating with em ployers and begin litigation that might otherwise be avoide d. Particularly given the reasonability defense set fo rth in the previous section, we think that Pathmark cannot rel y solely on Taylor's communications with it to prove that Pa thmark 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 askin g us to excuse its reliance in 1994 on the various co nflicting doctors' notes, could also have left Pathmark with a

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10. If the contention were that Pathmark used Taylo r's disability as a pretext for ridding itself of an employee with seni ority under the union collective bargaining agreeement, Taylor would not have a successful claim that he was regarded as disabled. The ADA pro hibits discrimination, not action taken using discriminati on as a pretext.

24continuing erroneous belief about Taylor. The ADA

Committee, by its member's own testimony, never lea rned why Taylor was not accommodated and rehired, and a reasonable jury could conclude that the relevant Pa thmark decisionmakers--apparently Pathmark counsel, in thi s 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 ha s 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 bum p 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 functiona lly identical Rehabilitation Act). Specifically, Pathma rk argues that Taylor never proved that there was an availabl e frozen food manager position during the relevant period; h is old job was filled before he returned in 1992, and noth ing in the record shows that there was a vacancy thereafte r. Unless there was a frozen food vacancy, Pathmark persuasively reasons, there can be no causal connec tion between Pathmark's perception of Taylor's abilities and its failure to give him the frozen food job. Taylor res ponds that he did not pursue the frozen food job more aggressi vely because his union representative was told that he w as going to be put back to work. This is an issue of f act to be

resolved on remand.

Taylor also suggests that he would have wanted to b e 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 suggeste d that cashier jobs did not require extended walking and standing. Furthermore, under the ADA the employer m ay be required to participate with a covered employee to identify a vacant position that the employee can pe rform, as employees may otherwise lack the ability to identif y 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

25to whether Pathmark would have had a position for T aylor

in 1996.

If Taylor prevails, the District Court might have t o decide in the first instance whether a "regarded as" plain tiff is entitled to accommodation even though he is not dis abled. We have yet to resolve this issue. On the one hand, the statute does not appear to distinguish between disa bled and "regarded as" individuals in requiring accommod ation. 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 impa ired but not disabled people are not entitled to accommodati on. See Deane, 142 F.3d at 149 n.12.

The debate over accommodation has heretofore focuse d on what constitutes a "reasonable accommodation," n ot on

the definition of "accommodation" vel non. In its n atural 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 all ows employees to perform a job in one of several ways a nd an employee chooses one of those ways, perhaps in orde r to alleviate an impairment that does not rise to the l evel 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 migh t therefore be unnecessary to reach the difficult que stion of entitlement to accommodation. See App. at A256 (vocational rehabilitation specialist testified tha t "I believe

there would be little or no real accommodation nece ssary"

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11. Webster's Third New International Dictionary de fines "accommodation" as, inter alia, "something that is supplied for convenience or to satisfy a need," "the provision o f what is needed or desired for convenience," or "adaptation, adjustmen t." Webster's Third New International Dictionary 12 (1966). The last de finition seems most appropriate to the context of the ADA. None of thes e definitions would make the standard conditions of a workplace "accomm odations," as preexisting conditions or practices would not be "s upplied" or "provided" to take account of an employee's disability.

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

conclusion about stock jobs). Pathmark's representa tive 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 hi s 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 a s to whether use of a milk crate was a standard way to p erform 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 for ms of relief, such as injunctive relief and damages, as w ell as attorney's fees, and so the accommodation question is not critical to the success of his claim. See Deane, 14 2 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 diff icult statute. Adhering to our precedent that mistakes ma y lead to liability under the ADA, we hold that, in this c ase, a jury could find Pathmark responsible for its mistaken impression of Taylor's abilities, and that a jury c ould also

find a causal link between Pathmark's mistake and i ts failure to rehire Taylor in one of his former posit ions. However, Taylor does not suffer from an actual disa bility.

For the foregoing reasons, we will affirm the judgm ent of the District Court on Taylor's actual disability cl aim, affirm it on Taylor's "regarded as" claim from September 1 995 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