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. e du/thir dc ir c uit_1998/19Filed January 22, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-5114

DENNIS E. GAUL, Appellant

v.

*LUCENT TECHNOLOGIES INC.; JOHN DOES 1-100; JANE DOES 1-100;
ABC CORP.; XYZ CORP.

(*Amended per the Clerk's 9/29/97 order)

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 94-cv-05263)

Argued December 4, 1997

BEFORE: COWEN, McKEE and WEIS, Circuit Judges

(Filed January 22, 1998)

Linda B. Kenney, Esq. Gregory S. Schaer, Esq. (argued)
The Galleria 2 Bridge Avenue Atrium Building #5, 2nd Fl. Red Bank, NJ 07701

Counsel for AppellantFrancis X. Dee, Esq. (argued)

Carpenter, Bennett & Morrissey 100 Mulberry Street Three Gateway Center Newark, NJ 07102

Counsel for Appellee

OPINION OF THE COURT

COWEN, Circuit Judge.

This is an appeal by plaintiff-appellant, Dennis Ga ul, from the February 21, 1997, order of the United Sta tes District Court for the District of New Jersey grant ing summary judgment in favor of defendant-appellee, AT & T, Inc. (AT & T), and dismissing plaintiff's complaint . Gaul v. AT & T, 955 F. Supp. 346 (D.N.J. 1997). The distric t court held that plaintiff was not disabled under the Amer icans with Disabilities Act (ADA), 42 U.S.C. S 12101 et s eq., because: (1) his depression and anxiety-related dis orders were not impairments that substantially limited his major life activity of working; (2) there was no record o f such impairment; and (3) plaintiff was not regarded as h aving such impairment. The district court also held that plaintiff was neither "disabled" under the ADA nor "handicapp ed" under the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 et seq., because his propo sed accommodation--transfer to a position where he woul d not be subjected to prolonged and inordinate stress by
coworkers--was unreasonable as a matter of law. Fin ally, having concluded as a legal matter that plaintiff's proposed accommodation was unreasonable, the district court held that plaintiff's state law claims for breach of con tract, breach of the implied covenant of good faith and fa ir dealing, and constructive discharge must also fail. We
affirm.

I.

Gaul began working for AT & T in 1981 as a Technica l Associate and was promoted to Senior Technical Asso ciate

2in 1983. He was diagnosed as suffering from depress ion

and anxiety-related disorders in March, 1984. Altho ugh his condition was successfully controlled for more than a year with anti-depressant drugs, Gaul suffered a nervous breakdown in 1986. He was hospitalized for several weeks and was absent from work for approximately three mo nths during that year.

Gaul eventually returned to work in early 1987. Onc e again, he received drug treatment, and his conditio n appeared under control. Indeed, by late 1988 or ear ly 1989, Gaul received a two-step promotion to Member of Tec hnical Staff. In June, 1990, however, Gaul suffered a rela pse after receiving an unfavorable performance review from hi s manager at that time, Joe Warren, and again went ou t on disability leave.

While out on disability leave, Gaul was contacted b y Tang Jampathon, a supervisor from AT & T's Cordless Tele phone Department. Jampathon expressed interest in having Gaul work on a project for which Gaul's skills were requ ired. Gaul explained to Jampathon that he would be unable to work under conditions of prolonged and inordinate s tress, and Jampathon assured him that the people in the department would be very supportive. After receivin g this assurance, Gaul began seeing Dr. Morris Reby, a boa rd certified psychiatrist, about his desire to return to work when medically able. Dr. Reby diagnosed Gaul as hav ing adjustment disorder with depression, anxiety, and obsessive/compulsive personality. Gaul had several more visits with Dr. Reby and was soon authorized to ret urn to
work on a "limited basis."

Gaul returned to work on September 4, 1990, and was permitted to work short hours for one week. From September 4, 1990, until the time he started to wor k with Donovan Folkes, a coworker, Gaul had no problem wit h stress, except when a dispute arose in August, 1991
, between two coworkers. However, this situation rapi dly changed in December, 1991, when he was assigned to work with Folkes on Phase II of the "International Proje ct," also known as the "Herring Project," the purpose of whic h was to design a cordless telephone for the internationa l market. Gaul was responsible for physical design of the bas e unit of

3the telephone set, and Folkes was assigned the hand set

portion of the unit.

Gaul claims that almost from the outset, he and Fol kes had difficulty working together, resulting in a con stant
source of stress for Gaul. Gaul accused Folkes of u sing
information from "his" data base on the base unit a nd of not sharing information with him. Gaul also claims that Folkes "may have" taken credit for one of Gaul's id eas and that it "appeared" that Folkes would not acknowledg e Gaul's contributions to the team. He also claims th at Folkes failed to note Gaul's contribution during a March or April, 1992 meeting and failed to list Gaul as a "c o-author" on a tooling estimate.

Gaul claims that he spoke to various people at AT & T about his difficulties with Folkes. He first attemp ted to resolve the problems with Folkes himself, but when these attempts were unsuccessful, he complained, without avail, to Jampathon in February, 1992. Gaul also sought he lp from Paul Newland, team leader on the Herring Proje ct, and Patricia Kaufman, an Ombudsperson at AT & T. Howeve r, neither Newland nor Kaufman provided assistance to Gaul.

In April, 1992, Gaul told Jampathon's replacement, Edwin Muth, that the situation with Folkes was caus ing him tremendous stress. Gaul again spoke to Muth in April or May, 1992, and advised him that he was still hav ing
trouble with Folkes. Muth told Gaul that he should take the matter up with Steve Bourne, the department head.

Gaul spoke briefly to Bourne about Folkes in May or June, 1992, and again in June or July, 1992. Bourne then arranged a meeting with both Gaul and Folkes in mid August, 1992. Gaul contends that during this meetin g he told Bourne he was "stressed out" and suggested tha t he be moved off the project. Shortly thereafter, Gaul all egedly

asked Bourne that he be transferred to a lower-stre ss position. Specifically, Gaul claims that he told Bo urne:

. . . . "Mr. Bourne, if you don't help me, or if you can't help me at this point, I am going to g et very sick, and I'm going to pop."

Again, I looked him in the eye. I said, "Do you know what I mean by pop?"

4And I was trying to get an answer from him. He said,

"I don't know what you mean by pop."

I said, "Well, I am going to have a nervous breakdown, and I wouldn't be able to come ba ck to

work."

App. at 492-93. During this meeting, Bourne did not respond one way or another to Gaul's transfer reque st. Gaul admits that he never followed up on his transf er request.

Approximately two weeks later, on September 11, 199 2, Gaul went out on disability leave. Since that time, he has been out on long-term disability and has been recei ving payments from AT & T's disability insurance plan an d from the Social Security Administration. He has also mad e a worker's compensation claim against AT & T, asserti ng that his disability is work-related. Gaul claims that he cannot perform his former duties at AT & T, nor, in fact, could he work for any employer, unless he is protected from prolonged and inordinate stress.

On September 9, 1994, Gaul filed a complaint agains t AT & T, alleging four causes of action. In thefirst count, Gaul alleges that he was handicapped within the mea ning of the NJLAD and that AT & T violated the NJLAD by failing to accommodate his alleged handicap. In the second count, Gaul alleges that AT & T violated public policy as embodied in the ADA by failing to accommodate his disability . In the third and fourth counts, respectively, Gaul alleges that
AT & T breached a contract with him and breached an implied covenant of good faith and fair dealing.

AT & T subsequently filed a motion for summary judgment. The district court entered an order grant ing the motion on February 21, 1997. The district courtfirs t
determined that Gaul's ADA claim must fail because he was not "disabled" within the meaning of the act. More specifically, the district court concluded that Gau l's depression was not an impairment substantially limi ting his major life activity of working, that there was no record of such impairment, and that there was no evidence AT & T regarded Gaul as having such impairment. Next, the district court concluded that plaintiff's NJLAD cla im must

5also fail because his request to be transferred awa y from

coworkers who subjected him to prolonged and inordi nate
stress was unreasonable as a matter of law.1 Finall y, the
district court determined that Gaul's claims for br each of contract, breach of implied covenant of good faith and fair dealing, and constructive discharge must fail becau se these claims could not be maintained unless Gaul's propos ed accommodation was reasonable. This appeal followed.

II.

The district court had subject matter jurisdiction over plaintiff's ADA claim pursuant to 28 U.S.C. S 1331 and supplemental jurisdiction over the plaintiff's stat e law claims pursuant to 28 U.S.C. S 1367. We have appell ate jurisdiction pursuant to 28 U.S.C. S 1291.

In reviewing an order granting summary judgment, we exercise plenary review. Petruzzi's IGA Supermarket s, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224, 1230 (3d Cir. 1993). Viewing the facts in the light most favorabl e to the nonmoving party, we look to see if there was a genu ine issue of material fact and, if not, whether the mov ing party was entitled to judgment as a matter of law. See Fe d. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 249-50, 106 S. Ct. 2505, 2510-11 (1986).

III.

The primary issue before us is whether Gaul's reque st to be transferred away from individuals causing him

___________________________________________________ ______________

1. The district court rejected AT & T's alternative argument that Gaul's NJLAD claim must fail because he did not present an y competent expert medical evidence that he was handicapped at the tim e he stopped working at AT & T. The court found that, for purpos es of the summary judgment motion, "the testimony and documentary evi dence by plaintiff's treating physician, including that by d efendant's own physicians, [was] sufficient to establish that Gaul does in fact suffer

from stress and depressive disorders." Gaul, 955 F. Supp . at 349. Although AT & T continues to press this argument on appeal, we need not reach it because we also conclude that Gaul's proposed ac commodation was
unreasonable as a matter of law. See infra.

6prolonged and inordinate stress was unreasonable as a

matter of law under the ADA. We conclude that it is

.

Congress enacted the ADA in 1990 in an effort to pr event otherwise qualified individuals from being discrimi nated against in employment based on a disability. See 29 C.F.R. pt. 1630, App. at 347-48 (1997). The ADA provides t hat "[n]o covered entity shall discriminate against a q ualified individual with a disability because of the disabil ity of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, emp loyee compensation, job training, and other terms, condit ions, and privileges of employment." 42 U.S.C. S 12112(a) (1995). The Act defines a "qualified individual with a disa bility" as "an individual with a disability who, with or witho ut reasonable accommodation, can perform the essential functions of the employment position that individua l holds or desires." Id. S 12111(8). An employer discrimina tes against a qualified individual when it does "not ma k[e] reasonable accommodations to the known physical or mental limitations of the individual unless the [em ployer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the [employer]." Id. S 12112(b)(5)(A). "Reasonab le accommodation" means measures such as "job restructuring, part-time or modified work schedules
, reassignment to a vacant position, acquisition or modification of equipment or devices, . . . and oth er similar
accommodations for individuals with disabilities." Id. S 12111(9).

A plaintiff presents a prima facie case of discrimi nation under the ADA by demonstrating: (1) he is a disable d person within the meaning of the ADA; (2) he is oth erwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employe r; and (3) he has suffered an otherwise adverse employ ment decision as a result of discrimination. See Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996).2 This matt er

___________________________________________________ ______________

2. Although Shiring interpreted the Rehabilitation Act of 1973, 29 U.S.C. S 794 et seq., it is relevant to our analysis of th e ADA because "in 1992 the Rehabilitation Act was amended to incorporate t he standards of several sections of the ADA, including the section defining `reasonable accommodation.' " Mengine v. Runyon, 114 F.3d 415, 420 (3d Cir. 1997) (citations omitted).

7turns on the second element, namely, whether Gaul w as a

"qualified individual."3 "[T]he burden is on the em ployee to prove that he is `an otherwise qualified' individua l." Id. at 832 (citing Buckingham v. United States, 998 F.2d 7 35, 739-40 (9th Cir. 1993)).

A two-part test is used to determine whether someon e is "a qualified individual with a disability." 29 C.F. R. pt. 1630, App. at 353-54. First, a court must consider whethe r "the individual satisfies the prerequisites for the posi tion, such as possessing the appropriate educational backgroun d, employment experience, skills, licenses, etc." Id. at 353. Second, the court must consider "whether or not the individual can perform the essential functions of t he position held or desired, with or without reasonabl e accommodation." Id. "The determination of whether a n individual with a disability is qualified is made a t the time of the employment decision." Id. at 353-54; see als o Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560 , 563 (7th Cir. 1996).

In the present matter, AT & T does not suggest that Gaul lacked the requisite experience, skill, or educatio n for the vacancy he sought. Nor does Gaul suggest that he co uld have performed the essential functions of his forme r job

___________________________________________________ ______________

3. AT & T also argues that plaintiff's ADA claim mu st fail because he is not disabled within the meaning of the act. More sp ecifically, AT & T asserts that plaintiff has not shown that his impai rment substantially limits his major life activity of working because G aul is not incapable of performing either "a class of jobs or a broad range of jobs in various classes" as compared to the average person having c omparable training, skills, and abilities. Appellee's Br. at 29. AT & T also contends that

Gaul has failed to set forth any evidence that his impai rment substantially limited any other major life activities (e.g., slee ping, eating, thinking). Because we conclude below that plaintiff's proposed accommodation is unreasonable as a matter of law, we need not reach this alternative argument. Nevertheless, we strongly suspect that a plaintiff who is unable to work with individuals who cause him "prol onged and inordinate stress" cannot be said to be incapable o f performing a "class of jobs or a broad range of jobs in various classes ." Cf. Weiler v. Household Finance Corp., 101 F.3d 519, 524 (7th Cir . 1996) ("The major life activity of working is not `substantially limi ted' if a plaintiff merely cannot work under a certain supervisor because of a nxiety and stress related to his review of her job performance." (cit ations omitted)).

8without reasonable accommodation. Indeed, Gaul admi ts

that "because his fears of returning to the same st ressful work environment depressed him further, his anxieti es grew and were affecting him to the point that Dr. R eby found him to be totally disabled." Appellant's Br. at 12. Thus, we must consider whether plaintiff has demons trated a genuine issue of material fact regarding his abil ity to perform the essential functions with reasonable accommodation. White v. York Int'l Corp., 45 F.3d 3 57, 362 (10th Cir. 1995).

Gaul can satisfy this burden if he can make at leas t a facial showing that his proposed accommodation is possible. See Shiring, 90 F.3d at 832. More specifi cally, Gaul must "demonstrate that there were vacant, fund ed positions whose essential duties he was capable of performing, with or without reasonable accommodatio n, and that these positions were at an equivalent leve l or position as [his former job]." Id. Gaul must also demonstrate as part of his facial showing that the costs associated with his proposed accommodation "are not clearly disproportionate to the benefits that it wi ll produce." Borkowski v. Valley Cent. School Dist., 63 F.3d 131 , 138 (2d Cir. 1995). The term "costs" includes financial as well as administrative burdens on a company. Cf. School Bd. of Nassau County, Fla. v. Airline, 480 U.S. 273, 287 n .17, 107 S. Ct. 1123, 1131 n.17 (1987). If Gaul is able to m ake out a prima facie showing, "the defendant then bears th e burden of proving, as an affirmative defense, that the accommodations requested by the plaintiff are unreasonable, or would cause an undue hardship on t he employer." Shiring, 90 F.3d at 831.

Based on the foregoing, we conclude that Gaul has f ailed to satisfy his burden for three reasons. First, Gau l's proposed accommodation would impose a wholly impractical obligation on AT & T or any employer. I ndeed, AT & T could never achieve more than temporary compliance because compliance would depend entirely on Gaul's stress level at any given moment. This, in t urn, would depend on an infinite number of variables, fe w of which AT & T controls. Moreover, the term"prolonged and inordinate stress" is not only subject to constant change, it

9is also subject to tremendous abuse. The only certa inty for

AT & T would be its obligation to transfer Gaul to another department whenever he becomes "stressed out" by a coworker or supervisor. It is difficult to imagine a more amorphous "standard" to impose on an employer.

Second, Gaul's proposed accommodation would also impose extraordinary administrative burdens on AT & T. In order to reduce Gaul's exposure to coworkers who ca use him prolonged and inordinate stress, AT & T supervi sors would have to consider, among other things, Gaul's stress level whenever assigning projects to workers or tea ms, changing work locations, or planning social events. Such considerations would require far too much oversight and are simply not required under law.

Third, by asking to be transferred away from indivi duals who cause him prolonged and inordinate stress, Gaul is essentially asking this court to establish the cond itions of his employment, most notably, with whom he will wor k. However, "[n]othing in the ADA allows this shift in responsibility." Weiler, 101 F.3d at 526. "Indeed, nothing in the law leads us to conclude that in enacting the d isability acts, Congress intended to interfere with personnel decisions within an organizational hierarchy. Congr ess intended simply that disabled persons have the same opportunities available to them as are available to nondisabled persons." Wernick v. Federal Reserve Ba nk of N.Y., 91 F.3d 379, 384 (2d Cir. 1996).

In sum, Gaul does not meet his burden under Shiring because his proposed accommodation was unreasonable as a matter of law. Therefore, Gaul is not a "qualifie d individual" under the ADA, and AT & T's alleged fai lure to investigate into reasonable accommodation is unimpo rtant. See Mengine, 114 F.3d at 420 (quoting Willis v. Con opco, Inc., 108 F.3d 282, 285 (11th Cir. 1997)). Accordin gly, the district court properly granted summary judgment as to
Gaul's ADA claim.

Having concluded that Gaul's proposed accommodation was unreasonable as a matter of law under the ADA, it
follows that his NJLAD claim must also fail. See En sslin v. Township of North Bergen, 275 N.J. Super. 352, 364, 646

10A.2d 452, 458 (App. Div. 1994) (New Jersey courts

considering reasonable accommodation under NJLAD lo ok to case law interpreting federal law on same point) (citing Andersen v. Exxon Co., U.S.A., 89 N.J. 483, 497 n.3 , 446 A.2d 486, 493 n.3 (1982)). It also follows that pla intiff's remaining state law claims (i.e., breach of contrac t, breach of implied covenant of good faith and fair dealing, and constructive discharge) must also fail because they too are based on defendant's alleged failure to provide rea sonable accommodations. Accordingly, the district court pro perly granted summary judgment as to plaintiff's state la w claims.

IV.

The February 21, 1997, order of the district court will be
affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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