1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-22-1998

Gaul v. Lucent Tech Inc

Precedential or Non-Precedential:

Docket 97-5114

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Recommended Citation

"Gaul v. Lucent Tech Inc" (1998). 1998 Decisions. Paper 19.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/19
Filed 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 Appellant 
 Francis 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 Gaul, 

from the February 21, 1997, order of the United States 

District Court for the District of New Jersey granting 

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 district court 

held that plaintiff was not disabled under the Americans 

with Disabilities Act (ADA), 42 U.S.C. S 12101 et seq., 

because: (1) his depression and anxiety-related disorders 

were not impairments that substantially limited his major 

life activity of working; (2) there was no record of such 

impairment; and (3) plaintiff was not regarded as having 

such impairment. The district court also held that plaintiff 

was neither "disabled" under the ADA nor "handicapped" 

under the New Jersey Law Against Discrimination 

(NJLAD), N.J.S.A. 10:5-1 et seq., because his proposed 

accommodation--transfer to a position where he would not 

be subjected to prolonged and inordinate stress by 

coworkers--was unreasonable as a matter of law. Finally, 

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 contract, 

breach of the implied covenant of good faith and fair 

dealing, and constructive discharge must also fail. We 

affirm. 

I. 

Gaul began working for AT & T in 1981 as a Technical 

Associate and was promoted to Senior Technical Associate 

 2 
in 1983. He was diagnosed as suffering from depression 

and anxiety-related disorders in March, 1984. Although 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 months 

during that year. 

Gaul eventually returned to work in early 1987. Once 

again, he received drug treatment, and his condition 

appeared under control. Indeed, by late 1988 or early 1989, 

Gaul received a two-step promotion to Member of Technical 

Staff. In June, 1990, however, Gaul suffered a relapse after 

receiving an unfavorable performance review from his 

manager at that time, Joe Warren, and again went out on 

disability leave. 

While out on disability leave, Gaul was contacted by Tang 

Jampathon, a supervisor from AT & T's Cordless Telephone 

Department. Jampathon expressed interest in having Gaul 

work on a project for which Gaul's skills were required. 

Gaul explained to Jampathon that he would be unable to 

work under conditions of prolonged and inordinate stress, 

and Jampathon assured him that the people in the 

department would be very supportive. After receiving this 

assurance, Gaul began seeing Dr. Morris Reby, a board 

certified psychiatrist, about his desire to return to work 

when medically able. Dr. Reby diagnosed Gaul as having 

adjustment disorder with depression, anxiety, and 

obsessive/compulsive personality. Gaul had several more 

visits with Dr. Reby and was soon authorized to return 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 work with 

Donovan Folkes, a coworker, Gaul had no problem with 

stress, except when a dispute arose in August, 1991, 

between two coworkers. However, this situation rapidly 

changed in December, 1991, when he was assigned to work 

with Folkes on Phase II of the "International Project," also 

known as the "Herring Project," the purpose of which was 

to design a cordless telephone for the international market. 

Gaul was responsible for physical design of the base unit of 

 3 
the telephone set, and Folkes was assigned the handset 

portion of the unit. 

Gaul claims that almost from the outset, he and Folkes 

had difficulty working together, resulting in a constant 

source of stress for Gaul. Gaul accused Folkes of using 

information from "his" data base on the base unit and of 

not sharing information with him. Gaul also claims that 

Folkes "may have" taken credit for one of Gaul's ideas and 

that it "appeared" that Folkes would not acknowledge 

Gaul's contributions to the team. He also claims that 

Folkes failed to note Gaul's contribution during a March or 

April, 1992 meeting and failed to list Gaul as a "co-author" 

on a tooling estimate. 

Gaul claims that he spoke to various people at AT & T 

about his difficulties with Folkes. He first attempted 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 help 

from Paul Newland, team leader on the Herring Project, and 

Patricia Kaufman, an Ombudsperson at AT & T. However, 

neither Newland nor Kaufman provided assistance to Gaul. 

In April, 1992, Gaul told Jampathon's replacement, 

Edwin Muth, that the situation with Folkes was causing 

him tremendous stress. Gaul again spoke to Muth in April 

or May, 1992, and advised him that he was still having 

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 midAugust, 1992. Gaul contends that during this meeting he 

told Bourne he was "stressed out" and suggested that he be 

moved off the project. Shortly thereafter, Gaul allegedly 

asked Bourne that he be transferred to a lower-stress 

position. Specifically, Gaul claims that he told Bourne: 

 . . . . "Mr. Bourne, if you don't help me, or if you 

 can't help me at this point, I am going to get 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?" 

 4 
 And 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 back to 

 work." 

App. at 492-93. During this meeting, Bourne did not

respond one way or another to Gaul's transfer request. 

Gaul admits that he never followed up on his transfer 

request. 

Approximately two weeks later, on September 11, 1992, 

Gaul went out on disability leave. Since that time, he has 

been out on long-term disability and has been receiving 

payments from AT & T's disability insurance plan and from 

the Social Security Administration. He has also made a 

worker's compensation claim against AT & T, asserting 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 against 

AT & T, alleging four causes of action. In thefirst count, 

Gaul alleges that he was handicapped within the meaning 

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 granting the 

motion on February 21, 1997. The district courtfirst 

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 Gaul's 

depression was not an impairment substantially limiting 

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 claim must 

 5 
also fail because his request to be transferred away from 

coworkers who subjected him to prolonged and inordinate 

stress was unreasonable as a matter of law.1 Finally, the 

district court determined that Gaul's claims for breach of 

contract, breach of implied covenant of good faith and fair 

dealing, and constructive discharge must fail because these 

claims could not be maintained unless Gaul's proposed 

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 state law 

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

jurisdiction pursuant to 28 U.S.C. S 1291. 

In reviewing an order granting summary judgment, we

exercise plenary review. Petruzzi's IGA Supermarkets, Inc. v. 

Darling-Delaware Co., Inc., 998 F.2d 1224, 1230 (3d Cir. 

1993). Viewing the facts in the light most favorable to the 

nonmoving party, we look to see if there was a genuine 

issue of material fact and, if not, whether the moving party 

was entitled to judgment as a matter of law. See Fed. 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 request 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 any competent expert 

medical evidence that he was handicapped at the time he stopped 

working at AT & T. The court found that, for purposes of the summary 

judgment motion, "the testimony and documentary evidence by 

plaintiff's treating physician, including that by defendant'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 accommodation was 

unreasonable as a matter of law. See infra. 

 6 
prolonged 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 prevent 

otherwise qualified individuals from being discriminated 

against in employment based on a disability. See 29 C.F.R. 

pt. 1630, App. at 347-48 (1997). The ADA provides that 

"[n]o covered entity shall discriminate against a qualified 

individual with a disability because of the disability of such 

individual in regard to job application procedures, the 

hiring, advancement, or discharge of employees, employee 

compensation, job training, and other terms, conditions, 

and privileges of employment." 42 U.S.C. S 12112(a) (1995). 

The Act defines a "qualified individual with a disability" as 

"an individual with a disability who, with or without 

reasonable accommodation, can perform the essential

functions of the employment position that individual holds 

or desires." Id. S 12111(8). An employer discriminates 

against a qualified individual when it does "not mak[e] 

reasonable accommodations to the known physical or 

mental limitations of the individual unless the [employer] 

can demonstrate that the accommodation would impose an 

undue hardship on the operation of the business 

of the [employer]." Id. S 12112(b)(5)(A). "Reasonable 

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 other similar 

accommodations for individuals with disabilities." Id. 

S 12111(9). 

A plaintiff presents a prima facie case of discrimination 

under the ADA by demonstrating: (1) he is a disabled 

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

qualified to perform the essential functions of the job, with 

or without reasonable accommodations by the employer; 

and (3) he has suffered an otherwise adverse employment 

decision as a result of discrimination. See Shiring v. 

Runyon, 90 F.3d 827, 831 (3d Cir. 1996).2 This matter 

_________________________________________________________________ 

2. Although Shiring interpreted the Rehabilitation Act of 1973, 29 U.S.C. 

S 794 et seq., it is relevant to our analysis of the ADA because "in 1992 

the Rehabilitation Act was amended to incorporate the 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). 

 7 
turns on the second element, namely, whether Gaul was a 

"qualified individual."3 "[T]he burden is on the employee to 

prove that he is `an otherwise qualified' individual." Id. at 

832 (citing Buckingham v. United States, 998 F.2d 735, 

739-40 (9th Cir. 1993)). 

A two-part test is used to determine whether someone is 

"a qualified individual with a disability." 29 C.F.R. pt. 1630, 

App. at 353-54. First, a court must consider whether "the 

individual satisfies the prerequisites for the position, such 

as possessing the appropriate educational background, 

employment experience, skills, licenses, etc." Id. at 353. 

Second, the court must consider "whether or not the

individual can perform the essential functions of the 

position held or desired, with or without reasonable 

accommodation." Id. "The determination of whether an 

individual with a disability is qualified is made at the time 

of the employment decision." Id. at 353-54; see also 

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 education for the 

vacancy he sought. Nor does Gaul suggest that he could 

have performed the essential functions of his former job 

_________________________________________________________________ 

3. AT & T also argues that plaintiff's ADA claim must fail because he is 

not disabled within the meaning of the act. More specifically, AT & T 

asserts that plaintiff has not shown that his impairment substantially 

limits his major life activity of working because Gaul 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 comparable training, 

skills, and abilities. Appellee's Br. at 29. AT & T also contends that 

Gaul 

has failed to set forth any evidence that his impairment substantially 

limited any other major life activities (e.g., sleeping, 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 "prolonged and 

inordinate stress" cannot be said to be incapable of 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 limited' if a plaintiff 

merely 

cannot work under a certain supervisor because of anxiety and stress 

related to his review of her job performance." (citations omitted)). 

 8 
without reasonable accommodation. Indeed, Gaul admits 

that "because his fears of returning to the same stressful 

work environment depressed him further, his anxieties 

grew and were affecting him to the point that Dr. Reby 

found him to be totally disabled." Appellant's Br. at 12. 

Thus, we must consider whether plaintiff has demonstrated 

a genuine issue of material fact regarding his ability to 

perform the essential functions with reasonable 

accommodation. White v. York Int'l Corp., 45 F.3d 357, 362 

(10th Cir. 1995). 

Gaul can satisfy this burden if he can make at least a 

facial showing that his proposed accommodation is 

possible. See Shiring, 90 F.3d at 832. More specifically, 

Gaul must "demonstrate that there were vacant, funded 

positions whose essential duties he was capable of 

performing, with or without reasonable accommodation, 

and that these positions were at an equivalent level 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 will 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 make out 

a prima facie showing, "the defendant then bears the 

burden of proving, as an affirmative defense, that the 

accommodations requested by the plaintiff are 

unreasonable, or would cause an undue hardship on the 

employer." Shiring, 90 F.3d at 831. 

Based on the foregoing, we conclude that Gaul has failed 

to satisfy his burden for three reasons. First, Gaul's 

proposed accommodation would impose a wholly 

impractical obligation on AT & T or any employer. Indeed, 

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 turn, 

would depend on an infinite number of variables, few of 

which AT & T controls. Moreover, the term"prolonged and 

inordinate stress" is not only subject to constant change, it 

 9 
is also subject to tremendous abuse. The only certainty 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 cause 

him prolonged and inordinate stress, AT & T supervisors 

would have to consider, among other things, Gaul's stress 

level whenever assigning projects to workers or teams, 

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 individuals 

who cause him prolonged and inordinate stress, Gaul is 

essentially asking this court to establish the conditions of 

his employment, most notably, with whom he will work. 

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 disability 

acts, Congress intended to interfere with personnel

decisions within an organizational hierarchy. Congress 

intended simply that disabled persons have the same

opportunities available to them as are available to

nondisabled persons." Wernick v. Federal Reserve Bank 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 "qualified 

individual" under the ADA, and AT & T's alleged failure to 

investigate into reasonable accommodation is unimportant. 

See Mengine, 114 F.3d at 420 (quoting Willis v. Conopco, 

Inc., 108 F.3d 282, 285 (11th Cir. 1997)). Accordingly, 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 Ensslin v. 

Township of North Bergen, 275 N.J. Super. 352, 364, 646 

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

considering reasonable accommodation under NJLAD look 

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 plaintiff's 

remaining state law claims (i.e., breach of contract, 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 reasonable 

accommodations. Accordingly, the district court properly 

granted summary judgment as to plaintiff's state law 

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 

 11