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. e du/thir dc ir c uit_1999/44Filed February 23, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-2000

SANDRA J. WALTON,

Appellant

v.

MENTAL HEALTH ASSOCIATION OF SOUTHEASTERN

PENNSYLVANIA

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. No. 96-cv-05682) District Judge: Honorable Marjorie O. Rendell

ARGUED OCTOBER 7, 1998

BEFORE: Becker, Chief Judge, Nygaard, and Noonan,* Circuit Judges.

(Filed February 23, 1999)

Ronald V. Cole (Argued)
Suite 2330

1601 Market Street Philadelphia, PA 19103 Attorney for Appellant

___________________________________________________ ______________

*The Honorable John T. Noonan, Jr., Circuit Judge o f the United States Court of Appeals for the Ninth Circuit, sitting by designation.Nancy C. Ryan (Argued)

Stouffer & Ryan

1515 Market Street
Suite 601 Philadelphia, PA 19102 Attorney for Appellee

OPINION OF THE COURT

NYGAARD, Circuit Judge,

Appellant, Sandra Walton, was fired by the Mental H ealth Association of Southeastern Pennsylvania ("MHASP") and
sued under the Americans with Disabilities Act of 1 990 ("ADA"), 42 U.S.C. S 12101 et seq. (1994), claimin g harassment, disparate treatment, and failure to accommodate. The District Court granted summary judgment for MHASP on these claims and denied Walto n's motion to amend the complaint to add a discriminati on claim based on her obesity as a perceived disabilit y. Walton now challenges these decisions. We will affirm.

I.

The facts are generally uncontested and are accurat ely
set forth in the District Court's Memorandum. See W alton v. Mental Health Assoc. of Southeastern Pa., No. CI V.A.96- 5682, 1997 WL 717053 (E.D. Pa. Nov. 17, 1997). We w ill
summarize.

Walton worked for MHASP, an advocacy organization f or people with mental illness, from January 1990 until she was terminated on January 6, 1994. She was the Dire ctor of Advocacy Consumer Training for New Opportunities ("ACT NOW"), a program within MHASP that provided employment training and job placement for mental he alth services consumers. As Director, Walton was respons ible for managing the program and supervising its staff. In 1992, Walton was assigned a new supervisor, Carmen Meek. The relationship between the two was not good

.

Like approximately eighty percent of MHASP's employ ees, Walton is a mental health services consumer. Specif ically,

2she suffers from depression. As a result, she was

hospitalized six times between March 1990 and Decem ber 1993. Because of her illness, Walton was absent twe nty-one days in 1990, forty days in 1991, fifty days in 199 2, and fourteen and a half days in 1993 before taking leav e on October 26, 1993. On that date, Walton was hospital ized for her illness, and she did not return to work bef ore she was terminated in January 1994. MHASP policy provid es eighteen days of sick leave per year.

For over a year before Walton was terminated, the r esults of the ACT NOW program -- measured by actual job placement -- had declined significantly. ACT NOW wa s funded through grants from the Office of Vocational Rehabilitation and the City of Philadelphia. The dr op in job placements led MHASP executives to fear for the con tinued sponsorship and existence of the program.

Upon being hospitalized in October 1993, Walton requested a leave of absence without pay. MHASP's H uman Resources Manager granted her request in a letter i n which he stated: "In the near future would you please let me know the expected duration of your leave. It is our poli cy that a leave without pay should not exceed 6 months." Walt on wrote MHASP a letter indicating that her doctor did not
want her to return to work until November 22 and th at she
intended to be back on that date. She did not retur n on that date. On December 30, Walton's doctor wrote MH ASP to inform them that Walton had regressed and that s he

should not return to work for several weeks. On Jan uary 4, 1994, Walton notified MHASP that she would report t o work on January 10. On January 6, 1994, Walton was terminated. The above facts are undisputed as are a ll others material to the District Court's summary jud gment ruling.

Walton filed a discrimination complaint with the Pennsylvania Human Relations Commission which, in t urn, lodged it with the Equal Employment Opportunity
Commission. The Human Relations Commission notified Walton that it had found "No Cause" in its investig ation of her complaint, and she requested a Right-to-Sue Not ice

from the EEOC. Walton then sued MHASP.

3II.

Walton's first claim is that the District Court err ed by denying her petition to amend the complaint to add a claim of discrimination based on the perceived disability of obesity. We review the Court's decision for abuse o f discretion. See Berger v. Edgewater Steel Co., 911 F.2d 911, 916 (3d Cir. 1990).

When a complaint is not amended within the time tha t amendments are allowed as a matter of course, a par ty may amend its complaint "by leave of court or by writte n consent of the adverse party; and leave shall be fr eely given when justice so requires." Fed. R. Civ. P. 15(a). Nevertheless, a trial court may consider whether th e amendment would be futile. See F.D.I.C. v. Bathgate , 27 F.3d 850, 874 (3d Cir. 1994). Here, the District Co urt held that Walton's proposed new claim failed to state a claim upon which relief could be granted. See Walton, 199 7 WL 717053, at *15.

The ADA defines disability as "A) a physical or men tal impairment that substantially limits one or more of the major life activities . . . ; B) a record of such a n impairment; or C) being regarded as having such an impairment." 42 U.S.C. S 12102(2). Walton argues that MHASP perceiv ed her as disabled because she is obese, and that this cla im, therefore, falls under the third prong of the disab ility
definition.

We have not recognized a cause of action against an employer who discriminates against an employee beca use it perceives the employee as disabled by obesity. Nor need we
do so now because Walton has not claimed that MHASP discriminated against her because it perceived her as disabled by some impairment that substantially limi ts one of her major life activities.

Although the ADA does not define "major life activi ties," see Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir . 1996), an individual is substantially limited in a major l ife activity when she is "[u]nable to perform a major life activ ity that the average person in the general population can pe rform" or is "[s]ignificantly restricted as to the conditi on, manner or duration under which [she] can perform a particu lar

4major life activity as compared to the condition, m anner, or

duration under which the average person in the gene ral population can perform that same major life activit y." 29 C.F.R. S 1630.2(j).

Major life activities include "functions such as ca ring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." Id. S 1630.2(i). Walton asserts that MHASP did not release a promoti onal video in which she appeared because she was too obe se. She apparently argues that, if MHASP refused to pub lish the video for this reason, it must have perceived h er as substantially limited in her ability to work becaus e appearing in the video was a part of her job. Howev er, "[w]ith respect to the major life activity of worki ng[, t]he term substantially limits means significantly restr icted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the avera ge person having comparable training, skills and abili ties." Id. S 1630.2(j)(3)(i). Furthermore, "[t]he inability to perform a single, particular job does not constitute a substa ntial limitation in the major life activity of working." Id.

Even if MHASP did cancel the video because of Walto n's appearance (a fact MHASP disputes), her claim fails . By asserting that MHASP prevented her from performing a single minor aspect of her job, Walton simply has n ot claimed that MHASP perceived her as substantially l imited in the major life activity of working under this st andard. Nor is there any indication that MHASP perceived he r obesity as limiting her other major life activities

.

Finally, Walton argues that the District Court firs t asked her to amend the complaint and then ignored the pet ition to amend once filed. See Appellant's Brief at 26-27 . This is
incorrect. The District Court did refer to Walton's delay in petitioning to amend. It did not, however, ignore t he petition. Nor did the Court deny the petition becau se Walton delayed. Rather, the District Court addresse d Walton's attempted amendment in the order granting summary judgment. It denied the petition because Wa lton failed therein to state a claim upon which relief c ould be granted. Walton was not prejudiced by the Court's d ecision

5to deny the petition to amend,1 and the Court did n ot abuse

its discretion.

III.

Walton also appeals the District Court's conclusion that she did not produce sufficient evidence of an objec tively hostile work environment to make out a prima facie case of harassment. The ADA states that "[n]o covered entit y shall discriminate against a qualified individual with a disability because of the disability of such individual in reg ard to . . . [the] terms, conditions, and privileges of employme nt." 42 U.S.C. S 12112(a). We have not previously determine d
whether the ADA creates a cause of action for haras sment under this section. The District Court proceeded on the assumption that a claim for a hostile workplace -- i.e., harassment -- could be stated under the ADA, see Wa lton, 1997 WL 717053, at *12, and the parties on appeal h ave followed suit.

The Supreme Court has held that language in Title V II that is almost identical to the above language in t he ADA
creates a cause of action for a hostile work enviro nment. See Patterson v. McLean Credit Union, 491 U.S. 164, 180, 109 S. Ct. 2363, 2374 (1989). In addition, we have recognized that:

[i]n the context of employment discriminatio n, the ADA, ADEA and Title VII all serve the same purpos e--to prohibit discrimination in employment agains t members of certain classes. Therefore, it fo llows that the methods and manner of proof under one st atute
should inform the standards under the others as well. Indeed, we routinely use Title VII and ADEA caselaw interchangeably, when there is no material d ifference in the question being addressed.

Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 157 ( 3d Cir. 1995). This framework indicates that a cause of act ion for harassment exists under the ADA. However, like othe r

___________________________________________________ ______________

1. Walton also requested amendment in order to asse rt a harassment
claim. The District Court treated this claim as hav ing been stated in the original complaint. See Part III, infra.

6courts,2 we will assume this cause of action withou t

confirming it because Walton did not show that she can state a claim.

A claim for harassment based on disability, like on e under Title VII, would require a showing that: 1) W alton is a qualified individual with a disability under the ADA; 2) she was subject to unwelcome harassment; 3) the harassment was based on her disability or a request for an accommodation; 4) the harassment was sufficiently s evere or pervasive to alter the conditions of her employm ent and to create an abusive working environment; and 5) th at
MHASP knew or should have known of the harassment a nd failed to take prompt effective remedial action. Se e McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 55 8, 563 (5th Cir. 1998); see also Vendetta v. Bell Atla ntic Corp., No. CIV.A. 97-4838, 1998 WL 575111, at *9 (E.D. Pa. Sep. 8, 1998).3

___________________________________________________ ______________

2. Many courts have proceeded on the assumption tha t the ADA creates
a cause of action for a hostile work environment bu t avoided confirming that the claim exists. See, e.g., Wallin v. Minneso ta Dept. of Corrections, 153 F.3d 681, 687-88 (8th Cir. 1998), petition for cert. filed, 67

U.S.L.W. 3410 (U.S. Dec. 21, 1998) (No. 98-1007) ("We will a ssume, without deciding, that such a cause of action exists."); Mo ritz v. Frontier Airlines, Inc., 147 F.3d 784, 788 (8th Cir. 1998) ("Although we are uncertain whether such a cause of action exists, . . . [plain tiff] has failed to establish a prima facie case of discrimination"); M cConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 563 (5th Cir. 1998) (noting that
various district courts have assumed the claim's ex istence and assuming its existence in order to dispense with appeal but stating that "[t]his

case should not be cited for the proposition that the Fi fth Circuit recognizes or rejects an ADA cause of action based on hostile environment harassment"). Our District Courts, likewise, have p resumed the claim's existence. See, e.g., Vendetta v. Bell Atlantic Cor p., No. CIV.A. 97-4838, 1998 WL 575111 (E.D. Pa. Sep. 8, 1998) (noting that because the Supreme Court has read a cause of action for harass ment into Title VII, the same is appropriate under the ADA). At least on e circuit has considered the claim without disavowing it. See Kee ver v. City of Middletown, 145 F.3d 809, 813 (6th Cir.), cert. den ied, 119 S. Ct. 407 (1998). Indeed, we have not discovered any case hol ding that the claim

cannot be asserted under the ADA.

3. Although the District Court did not mention the fifth element, it correctly found that Walton had failed to meet othe rs, and thus its
omission was harmless.7To prove an "abusive work environment" under Title VII,

the environment must be shown to be objectively hos tile or abusive, and the plaintiff must have perceived it a s a hostile or abusive environment. See Harris v. Forkl ift Sys., Inc., 510 U.S. 17, 22, 114 S. Ct. 367, 371 (1993). Walton would not need to prove that she suffered injury or that her psychological well-being was seriously affected. Se e id., 114 S. Ct. at 371. She would, however, be called upon t o show that the harassment was "sufficiently severe or per vasive to alter the conditions of [her] employment and create an abusive working environment." Id. at 21, 114 S. Ct. at 370 (citing Meritor Sav. Bank v. Vinson, 477 U.S. 57, 6 7, 106 S. Ct. 2399, 2405 (1986)). To judge whether such an environment is hostile or abusive, we must consider all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utt erance; and whether it unreasonably interferes with an empl oyee's work performance." Id. at 23, 114 S. Ct. at 371. Wa lton simply has not demonstrated that the asserted haras sment was pervasive or severe enough to meet the Harris

standard.

Walton asserts that various comments and actions by her supervisor, Meek, amount to harassment,4 and she a rgues that the District Court resolved disputed material factual issues to rule on this claim at the summary judgmen t level. We disagree.

Although it is clear that the relationship between Walton and Meek was poor, Walton has not asserted facts th at

___________________________________________________ ______________

4. The primary actions pointed to by Walton are: (1 ) Meek told Walton that she would be fired if she did not attend the g raduation ceremony for ACT NOW (Walton is agoraphobic and later received p ermission not to attend the graduation from one of Meek's superiors) ; (2) Meek once told Walton she was "manic-depressive"; (3) Meek called her ten days consecutively when she was first hospitalized, aski ng each day when she would be returning to work (this upset Walton to th e point that her doctor asked her to request that Meek stop calling) ; (4) Meek stated in her deposition that she believes persons with menta l illness have impaired judgment when they are suffering from thei r illness; and (5) Meek forbade Walton's staff from speaking with her about the ACT NOW program while she was hospitalized.

8would allow a reasonable jury to find that Meek har assed

her because of her disability. See, e.g., Uhl v. Za lk Josephs Fabricators, Inc., 121 F.3d 1133, 1137 (7th Cir. 19 97) ("A personality conflict doesn't ripen into an ADA clai m simply because one of the parties has a disability."). The fact that Meek's behavior toward Walton may have been offensi ve does not indicate that it was based on Walton's dis ability. Finally, we agree with the District Court's conclus ion that, "[a]ll of these alleged incidents -- considered bot h individually and together -- fall far short of meet ing the Harris standard." Walton, 1997 WL 717053, at *14.

IV.

Walton's disparate treatment claim asserted that MH ASP
fired her while she was on leave because of her dis ability. She now argues that she presented enough evidence t o raise an inference of pretext regarding MHASP's sta ted reason for firing her, and thus to avoid summary ju dgment. The McDonnell Douglas Title VII burden shifting rul es apply to claims of discriminatory treatment under the ADA . See Lawrence v. National Westminster Bank N.J., 98 F.3d 61, 68 & n.7 (3d Cir. 1996). To establish a prima facie ca se of disparate treatment, Walton "must prove by a preponderance of the evidence that (1) [she] belong s to a protected class; (2) [she] was qualified for the po sition; (3) [she] was dismissed despite being qualified; and (4 ) [she] was ultimately replaced by a person sufficiently ou tside the protected class to create an inference of discrimin ation." Id.
at 68. The District Court assumed that Walton had s tated a prima facie case of discrimination under the ADA. 5 See Walton, 1997 WL 717053, at *5.

Once the employee has established a prima facie cas e, "the burden of production shifts to the employer to `articulate some legitimate, nondiscriminatory reas on for the employee's rejection.' " See Fuentes v. Perskie , 32 F.3d

___________________________________________________ ______________

5. MHASP argued that Walton was not "qualified" und er the ADA due to her significant absences and therefore could not st ate a prima facie
discrimination claim. The District Court held that whether attendance was essential to the job was a "hotly contested" fa ct in this case and therefore construed the question in Walton's favor.

9759, 763 (3d Cir. 1994) (quoting McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (197 3)).
The District Court determined that MHASP had articu lated a legitimate, nondiscriminatory reason when it clai med that Walton's failure to provide ACT NOW with the necess ary leadership and her extensive absences had led it to fear for the program's future and therefore to dismiss Walto n. See Walton, 1997 WL 717053, at *6.

Because MHASP stated a "legitimate, nondiscriminato ry" reason for its action, Walton, to defeat summary ju dgment, had to "point to some evidence, direct or circumsta ntial, from which a fact finder could reasonably either (1 ) disbelieve the employer's articulated legitimate re asons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action." Lawrence, 98 F.3d at 66. Th ese options enable a plaintiff to survive summary judgm ent, without direct evidence, by producing "sufficient e vidence to raise a genuine issue of fact as to whether the emp loyer's proffered reasons were not its true reasons for the challenged employment action."6 Sheridan v. E.I. D uPont de Nemours and Co., 100 F.3d 1061, 1067 (3d Cir. 1996) (en banc).

The defendant's intent in dismissing the plaintiff is a factual question. See Chippolini v. Spencer Gifts, Inc., 814 F.2d 893, 899 (3d Cir. 1987) (en banc). Therefore, if Walton can point to evidence that calls into question MHAS P's intent, she "raises an issue of material fact which , if genuine, is sufficient to preclude summary judgment ." Id. A dispute regarding a material fact is genuine "if th e evidence is such that a reasonable jury could return a verdi ct for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986).

The District Court concluded that Walton had not of fered any evidence from which a reasonable jury couldfind that MHASP's proffered reason for terminating Walton was

___________________________________________________ ______________

6. Of course, at trial, the plaintiff maintains the burden to persuade the jury that the reason was pretextual and that the re al reason for the employer's action was discrimination. See St. Mary' s Honor Center v. Hicks, 509 U.S. 502, 511 n.4, 113 S. Ct. 2742, 2749 n.4 (1993).

10pretextual. See Walton, 1997 WL 717053, at *7-10. W alton

argues that she produced both direct and indirect e vidence that MHASP's stated reasons were pretextual. She di d not,
and we will affirm the District Court.

A. Direct Evidence of Pretext

Walton points to evidence that the high attrition r ate in the ACT NOW program, which MHASP claimed showed a declining level of productivity in the program,"had long been known to defendant," Appellant's Brief at 42, and was due to such uncontrollable factors as the program participants' "unreasonable expectations, insubordi nation, absenteeism and drug abuse." Id. She asserts that s he had no control over the attrition rate. This argument i s not convincing. MHASP's concern with the program's decl ining success rate and its reliance on the faltering resu lts in its decision to dismiss Walton was reasonable as long a s earlier program participants were faced with simila r difficulties. Walton did not claim that they were n ot.

Walton notes that it was Meek who pointed out numerous faults in the program and claims that her veracity is in doubt because she is the person who purportedly harassed Walton. However, MHASP's knowledge of ACT NOW's faltering results and of Wal ton's significant absences did not depend on Meek's repor ts, and Walton has not suggested that the data MHASP relied upon was incorrect.7

B. Indirect Evidence of Pretext

Walton asserts that the timing and circumstances surrounding her dismissal are sufficient to support an inference that MHASP's stated reasons for terminati ng her are pretextual. Factors including "the timing of an employee's dismissal, and the employer's treatment of the employee could raise an inference of pretext which would make summary judgment for the employer inappropriat e." Josey v. John R. Hollingsworth Co., 996 F.2d 632, 6 38-39 (3d Cir. 1993).

___________________________________________________ ______________

7. Walton's assertion that MHASP cannot claim that it fired her for her absences because her absences were largely a result of MHASP's abusive treatment is unsupported by the facts. See Part III , supra.

11Walton cites White v. Westinghouse Electric Co., 86 2 F.2d

56 (3d Cir. 1989), for authority that the circumsta nces surrounding her discharge may be sufficient to rais e a genuine issue of material fact and preclude summary judgment. White was dismissed when he was three mon ths short of serving thirty years, upon which he would have been entitled to greater retirement benefits and th e option to retire at a younger age. We decided that these
circumstances indicated that White was discriminate d against based on his age. However, the rationale be hind White was rejected by the Supreme Court in Hazen Pa per Co. v. Biggins, 507 U.S. 604, 113 S. Ct. 1701 (1993 ). In Hazen, the Court considered a claim under the ADEA by an employee who had been fired just before his pension would have vested. In holding that the employer did not v iolate the ADEA by firing the employee to prevent his pens ion from vesting, the Court emphasized that a firing th at may be wrongful in one sense (to purposefully avoid pay ing benefits, for example) is not necessarily wrongful under the ADEA (or, in Walton's case, the ADA) "unless the pr otected trait actually motivates the employer's decision." Id. at 610, 611-12, 113 S. Ct. at 1706, 1707-08. Therefore, our inference in White that a wrongful firing that occu rred because an employee was about to gain increased pen sion benefits indicated a wrongful firing based on age w as unfounded. Hazen teaches that we must not infer a particular type of discrimination from circumstance s that merely indicate a wrongful firing of some sort. Tha t is just what Walton is asking us to do.

To consider timing and/or employee treatment in rel ation to a dismissal as evidence of discrimination, there must be some logical connection between the timing or treat ment and the possibility of the particular discriminatio n at issue. For example, in Josey, 996 F.2d at 632, a company o wned by seven white shareholder employees adopted a new preference for hiring and maintaining shareholders in the midst of unrest following the promotion of a black nonshareholder supervisor ahead of a white sharehol der. We found that the timing of the adoption of the new company policy preferring shareholders, together wi th facts that indicated racial prejudice by at least one sha reholder,

12was sufficient to create an issue of fact as to whe ther the

action was racially motivated. See id. at 640-41.

Walton asserts that MHASP's hiring of her replaceme nt a
month before she was notified that she had beenfire d showed that the reasons it gave for her dismissal w ere pretextual. Although she was fired while on leave a nd was not given notice that she had been replaced until s he was about to return to work, it would be wrong to infer from
this that MHASP's decision to dismiss her was based on her disability. Here, nothing connects the timing of th e dismissal or the related circumstances with a discriminatory motive. Rather, the reverse is true. Walton was let go during her longest extended absence. Thi s would clearly have brought any concerns that MHASP previo usly had regarding her ability to do her job to a head a nd increased the pressure on the association to replac e her.

V.

Finally, Walton argues that the District Court erre d by holding that her proposed accommodation (being left on extended leave) created an undue burden on MHASP. Under the ADA, discrimination includes: "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified indivi dual with a disability who is an applicant or employee, unles s[the employer] can demonstrate that the accommodation wo uld impose an undue hardship on the operation of the bu siness of such [employer]." 42 U.S.C. S 12112(b)(5)(A). An undue hardship entails "significant difficulty or expense in, or resulting from, the provision of the accommodation. " 29 C.F.R. S 1630, App. S 1630.2(p).

The circuits disagree whether the burdens of produc tion and persuasion on the issues of reasonable accommod ation and undue burden are properly placed on the plainti ff or the defendant, or are divided between them. See Bor kowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 136-37 (2d Cir. 1995) (recounting the various approaches). We now, like the

13District Court, "chart a middle course," id. at 137 , and

adopt the Borkowski approach:8

First, the plaintiff bears the burden of pro ving that she is otherwise qualified; if an accommodation is needed, the plaintiff must show, as part of her burd en of persuasion, that an effective accommodation exists that would render her otherwise qualified. O n the issue of reasonable accommodation, the plaintiff b ears only the burden of identifying an accommodation, the costs of which, facially, do not clearly exceed it s benefits. These two requirements placed on the plainti ff will permit district courts to grant summary judg ments for defendants in cases in which the plaintiff ' s proposal is either clearly ineffective or outlandishly c ostly.

Id. at 139.

Following a prima facie showing by the plaintiff th at a
reasonable accommodation exists which would make he r qualified, the burden shifts to the defendant to pr ove either
that the accommodation is unreasonable or that it c reates an undue hardship for the defendant. See id. at 138 . These two options before the defendant effectively "merge " because "in practice meeting the burden of nonpersu asion
on the reasonableness of the accommodation and demonstrating that the accommodation imposes an und ue hardship amount to the same thing." Id.

This distribution of burdens is both fair and effic ient. The employee knows whether her disability can be
accommodated in a manner that will allow her to successfully perform her job. The employer, however , holds the information necessary to determine whether the proposed accommodation will create an undue burden for it. See id. at 137. Thus, the approach simply place s the burden on the party holding the evidence with respe ct to the particular issue.

Walton asserts that MHASP should have accommodated

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8. We previously indicated, in dictum, our preferen ce for the Borkowski approach. See Shiring v. Runyon, 90 F.3d 827 (3d Ci r. 1996) (a case under the Rehabilitation Act).

14her by continuing her leave of absence without firi ng her.9

The District Court concluded that Walton had made a facial showing that unpaid leave was potentially a reasona ble accommodation for her sickness by introducing the l etter with which MHASP accepted her request for unpaid le ave. See Walton, 1997 WL 717053, at *11. Addressing MHAS P's decision to end its grant of unpaid leave, however, the
Court reasoned that the "same evidence that demonst rates the legitimate, nondiscriminatory reason for firing plaintiff
. . . also demonstrates that the accommodation that plaintiff seeks [continuation of her leave] created an undue burden for the organization." Id. at *12. Therefore , the Court held, MHASP had produced "sufficient
uncontroverted evidence to meet the burden of demonstrating that the requested accommodation, alt hough possible, was not reasonable." Id.

We will affirm because Walton's requested
accommodation -- continued leave -- would have crea ted

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9. Walton originally alleged that MHASP failed to r easonably
accommodate her on a number of other occasions. She raises only this instance on appeal.

In addition, she now argues that she could have bee n rehired "in a less critical position than Director." In her reply brie f, Walton further

extends this argument by asserting that, because MHASP hire d her replacement without telling her, it failed to make a "good fait h effort to communicate with her regarding necessary and available accommod ations."

MHASP responds that this argument is untimely becau se it was not asserted by the plaintiff before the District Court . Walton originally complained that "[d]efendant failed to reasonably a ccommodate plaintiff 's request for a leave of absence without pay by violating its

own stated policy respecting the duration of such absen ces." (The proposed amended complaint did not alter this claim.) The Di strict Court declined to consider the reassignment issue because Walton d id not raise the issue in her complaint. See Walton, 1997 WL 717053, at *10 n.12. This
was not in error.

As to Walton's attempt to raise the issue before us ,"absent exceptional circumstances, an issue not raised in the district court will not be heard on appeal." Altman v. Altman, 653 F.2d 755, 758 (3d Cir. 1981) (citation omitted). In exceptional circumstances or when mani fest injustice would otherwise result, public interest can require that the issue be heard. See id. This case does not present such circumstances.

15an undue burden on MHASP. Reasonable accommodations

are "[m]odifications or adjustments to the work environment, or to the manner or circumstances unde r which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of th at position." 29 C.F.R. S 1630.2(o)(1)(ii). Although u npaid leave supplementing regular sick and personal days might, under other facts, represent a reasonable accommodation, an employer does not have to allow leave of this type to the extent that MHASP had already granted it to Walton. A blanket requirement that an employer allow such lea ve is beyond the scope of the ADA when the absent employe e simply will not be performing the essential functio ns of her position.

Walton attempts to use MHASP's past grants of unpai d leave against it by arguing that these instances sh ow that the leave was a reasonable accommodation. Here, Hol brook v. City of Alpharetta, Georgia, 112 F.3d 1522 (11th Cir. 1997), is informative. In Holbrook, the city accomm odated a visually-impaired police detective for a significan t period of time with respect to essential functions of his job which he could not perform without assistance. The court hel d that the city's decision to cease the accommodations did not violate the ADA because the city's original accommo dations exceeded the level that the law required. See id. a t 1528. Similarly, the unpaid leave granted to Walton excee ded the requirement of reasonable accommodation under the A DA,
and MHASP's decision to discontinue the accommodati on does not give her a cause of action against it.

VI.

In sum, Walton has not convinced us that the Distri ct Court erred by granting MHASP's motion for summary judgment on her claims of harassment, disparate treatment, and failure to accommodate. Nor has she shown that the District Court erred by not allowing her t o amend her complaint. Accordingly, we will affirm.

16A True Copy:

Teste:

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

17