1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-23-1999

Walton v. Mental Health Assn

Precedential or Non-Precedential:

Docket 97-2000

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"Walton v. Mental Health Assn" (1999). 1999 Decisions. Paper 44.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/44
Filed 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 of 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 Health 

Association of Southeastern Pennsylvania ("MHASP") and 

sued under the Americans with Disabilities Act of 1990 

("ADA"), 42 U.S.C. S 12101 et seq. (1994), claiming 

harassment, disparate treatment, and failure to 

accommodate. The District Court granted summary 

judgment for MHASP on these claims and denied Walton's 

motion to amend the complaint to add a discrimination 

claim based on her obesity as a perceived disability. Walton 

now challenges these decisions. We will affirm. 

I. 

The facts are generally uncontested and are accurately 

set forth in the District Court's Memorandum. See Walton 

v. Mental Health Assoc. of Southeastern Pa., No. CIV.A.96- 

5682, 1997 WL 717053 (E.D. Pa. Nov. 17, 1997). We will 

summarize. 

Walton worked for MHASP, an advocacy organization for 

people with mental illness, from January 1990 until she 

was terminated on January 6, 1994. She was the Director 

of Advocacy Consumer Training for New Opportunities

("ACT NOW"), a program within MHASP that provided 

employment training and job placement for mental health 

services consumers. As Director, Walton was responsible 

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 employees, 

Walton is a mental health services consumer. Specifically, 

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

hospitalized six times between March 1990 and December 

1993. Because of her illness, Walton was absent twenty-one 

days in 1990, forty days in 1991, fifty days in 1992, and 

fourteen and a half days in 1993 before taking leave on 

October 26, 1993. On that date, Walton was hospitalized 

for her illness, and she did not return to work before she 

was terminated in January 1994. MHASP policy provides 

eighteen days of sick leave per year. 

For over a year before Walton was terminated, the results 

of the ACT NOW program -- measured by actual job 

placement -- had declined significantly. ACT NOW was 

funded through grants from the Office of Vocational

Rehabilitation and the City of Philadelphia. The drop in job 

placements led MHASP executives to fear for the continued 

sponsorship and existence of the program. 

Upon being hospitalized in October 1993, Walton 

requested a leave of absence without pay. MHASP's Human 

Resources Manager granted her request in a letter in which 

he stated: "In the near future would you please let me know 

the expected duration of your leave. It is our policy that a 

leave without pay should not exceed 6 months." Walton 

wrote MHASP a letter indicating that her doctor did not 

want her to return to work until November 22 and that she 

intended to be back on that date. She did not return on 

that date. On December 30, Walton's doctor wrote MHASP 

to inform them that Walton had regressed and that she 

should not return to work for several weeks. On January 4, 

1994, Walton notified MHASP that she would report to 

work on January 10. On January 6, 1994, Walton was 

terminated. The above facts are undisputed as are all 

others material to the District Court's summary judgment 

ruling. 

Walton filed a discrimination complaint with the 

Pennsylvania Human Relations Commission which, in turn, 

lodged it with the Equal Employment Opportunity 

Commission. The Human Relations Commission notified

Walton that it had found "No Cause" in its investigation of 

her complaint, and she requested a Right-to-Sue Notice 

from the EEOC. Walton then sued MHASP. 

 3 
II. 

Walton's first claim is that the District Court erred 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 of 

discretion. See Berger v. Edgewater Steel Co., 911 F.2d 

911, 916 (3d Cir. 1990). 

When a complaint is not amended within the time that 

amendments are allowed as a matter of course, a party may 

amend its complaint "by leave of court or by written 

consent of the adverse party; and leave shall be freely given 

when justice so requires." Fed. R. Civ. P. 15(a). 

Nevertheless, a trial court may consider whether the 

amendment would be futile. See F.D.I.C. v. Bathgate, 27 

F.3d 850, 874 (3d Cir. 1994). Here, the District Court held 

that Walton's proposed new claim failed to state a claim 

upon which relief could be granted. See Walton, 1997 WL 

717053, at *15. 

The ADA defines disability as "A) a physical or mental 

impairment that substantially limits one or more of the 

major life activities . . . ; B) a record of such an impairment; 

or C) being regarded as having such an impairment." 42 

U.S.C. S 12102(2). Walton argues that MHASP perceived her 

as disabled because she is obese, and that this claim, 

therefore, falls under the third prong of the disability 

definition. 

We have not recognized a cause of action against an

employer who discriminates against an employee because 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 limits one of 

her major life activities. 

Although the ADA does not define "major life activities," 

see Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996), 

an individual is substantially limited in a major life activity 

when she is "[u]nable to perform a major life activity that 

the average person in the general population can perform" 

or is "[s]ignificantly restricted as to the condition, manner 

or duration under which [she] can perform a particular 

 4 
major life activity as compared to the condition, manner, or 

duration under which the average person in the general 

population can perform that same major life activity." 29 

C.F.R. S 1630.2(j). 

Major life activities include "functions such as caring 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 promotional 

video in which she appeared because she was too obese. 

She apparently argues that, if MHASP refused to publish 

the video for this reason, it must have perceived her as 

substantially limited in her ability to work because 

appearing in the video was a part of her job. However, 

"[w]ith respect to the major life activity of working[, t]he 

term substantially limits means significantly restricted in 

the ability to perform 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." Id. 

S 1630.2(j)(3)(i). Furthermore, "[t]he inability to perform a 

single, particular job does not constitute a substantial 

limitation in the major life activity of working." Id. 

Even if MHASP did cancel the video because of Walton'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 not 

claimed that MHASP perceived her as substantially limited 

in the major life activity of working under this standard. 

Nor is there any indication that MHASP perceived her 

obesity as limiting her other major life activities. 

Finally, Walton argues that the District Court first asked 

her to amend the complaint and then ignored the petition 

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 the 

petition. Nor did the Court deny the petition because 

Walton delayed. Rather, the District Court addressed 

Walton's attempted amendment in the order granting 

summary judgment. It denied the petition because Walton 

failed therein to state a claim upon which relief could be 

granted. Walton was not prejudiced by the Court's decision 

 5 
to deny the petition to amend,1 and the Court did not abuse 

its discretion. 

III. 

Walton also appeals the District Court's conclusion that 

she did not produce sufficient evidence of an objectively 

hostile work environment to make out a prima facie case of 

harassment. The ADA states that "[n]o covered entity shall 

discriminate against a qualified individual with a disability 

because of the disability of such individual in regard to . . . 

[the] terms, conditions, and privileges of employment." 42 

U.S.C. S 12112(a). We have not previously determined 

whether the ADA creates a cause of action for harassment 

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 Walton, 

1997 WL 717053, at *12, and the parties on appeal have 

followed suit. 

The Supreme Court has held that language in Title VII 

that is almost identical to the above language in the ADA 

creates a cause of action for a hostile work environment. 

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 discrimination, the ADA, 

 ADEA and Title VII all serve the same purpose--to 

 prohibit discrimination in employment against 

 members of certain classes. Therefore, it follows that 

 the methods and manner of proof under one statute 

 should inform the standards under the others as well. 

 Indeed, we routinely use Title VII and ADEA caselaw 

 interchangeably, when there is no material difference 

 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 action for 

harassment exists under the ADA. However, like other 

_________________________________________________________________ 

1. Walton also requested amendment in order to assert a harassment 

claim. The District Court treated this claim as having been stated in the 

original complaint. See Part III, infra. 

 6 
courts,2 we will assume this cause of action without 

confirming it because Walton did not show that she can 

state a claim. 

A claim for harassment based on disability, like one 

under Title VII, would require a showing that: 1) Walton 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 severe 

or pervasive to alter the conditions of her employment and 

to create an abusive working environment; and 5) that 

MHASP knew or should have known of the harassment and 

failed to take prompt effective remedial action. See 

McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 

563 (5th Cir. 1998); see also Vendetta v. Bell Atlantic 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 that the ADA creates 

a cause of action for a hostile work environment but avoided confirming 

that the claim exists. See, e.g., Wallin v. Minnesota 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 assume, without 

deciding, that such a cause of action exists."); Moritz v. Frontier 

Airlines, 

Inc., 147 F.3d 784, 788 (8th Cir. 1998) ("Although we are uncertain 

whether such a cause of action exists, . . . [plaintiff] has failed to 

establish a prima facie case of discrimination"); McConathy v. Dr. 

Pepper/Seven Up Corp., 131 F.3d 558, 563 (5th Cir. 1998) (noting that 

various district courts have assumed the claim's existence 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 Fifth Circuit recognizes 

or rejects an ADA cause of action based on hostile environment 

harassment"). Our District Courts, likewise, have presumed the claim's 

existence. See, e.g., Vendetta v. Bell Atlantic Corp., 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 harassment into Title VII, 

the same is appropriate under the ADA). At least one circuit has 

considered the claim without disavowing it. See Keever v. City of 

Middletown, 145 F.3d 809, 813 (6th Cir.), cert. denied, 119 S. Ct. 407 

(1998). Indeed, we have not discovered any case holding 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 others, and thus its 

omission was harmless. 
 7 
To prove an "abusive work environment" under Title VII, 

the environment must be shown to be objectively hostile or 

abusive, and the plaintiff must have perceived it as a 

hostile or abusive environment. See Harris v. Forklift 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. See id., 114 

S. Ct. at 371. She would, however, be called upon to show 

that the harassment was "sufficiently severe or pervasive 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, 67, 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 utterance; 

and whether it unreasonably interferes with an employee's 

work performance." Id. at 23, 114 S. Ct. at 371. Walton 

simply has not demonstrated that the asserted harassment 

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 argues 

that the District Court resolved disputed material factual 

issues to rule on this claim at the summary judgment level. 

We disagree. 

Although it is clear that the relationship between Walton 

and Meek was poor, Walton has not asserted facts that 

_________________________________________________________________ 

4. The primary actions pointed to by Walton are: (1) Meek told Walton 

that she would be fired if she did not attend the graduation ceremony for 

ACT NOW (Walton is agoraphobic and later received permission 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, asking each day when she 

would be returning to work (this upset Walton to the point that her 

doctor asked her to request that Meek stop calling); (4) Meek stated in 

her deposition that she believes persons with mental illness have 

impaired judgment when they are suffering from their illness; and (5) 

Meek forbade Walton's staff from speaking with her about the ACT NOW 

program while she was hospitalized. 

 8 
would allow a reasonable jury to find that Meek harassed 

her because of her disability. See, e.g., Uhl v. Zalk Josephs 

Fabricators, Inc., 121 F.3d 1133, 1137 (7th Cir. 1997) ("A 

personality conflict doesn't ripen into an ADA claim simply 

because one of the parties has a disability."). The fact that 

Meek's behavior toward Walton may have been offensive 

does not indicate that it was based on Walton's disability. 

Finally, we agree with the District Court's conclusion that, 

"[a]ll of these alleged incidents -- considered both 

individually and together -- fall far short of meeting the 

Harris standard." Walton, 1997 WL 717053, at *14. 

IV. 

Walton's disparate treatment claim asserted that MHASP 

fired her while she was on leave because of her disability. 

She now argues that she presented enough evidence to 

raise an inference of pretext regarding MHASP's stated 

reason for firing her, and thus to avoid summary judgment. 

The McDonnell Douglas Title VII burden shifting rules 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 case of 

disparate treatment, Walton "must prove by a 

preponderance of the evidence that (1) [she] belongs to a 

protected class; (2) [she] was qualified for the position; (3) 

[she] was dismissed despite being qualified; and (4) [she] 

was ultimately replaced by a person sufficiently outside the 

protected class to create an inference of discrimination." Id. 

at 68. The District Court assumed that Walton had stated 

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 case, 

"the burden of production shifts to the employer to

`articulate some legitimate, nondiscriminatory reason for 

the employee's rejection.' " See Fuentes v. Perskie, 32 F.3d 

_________________________________________________________________ 

5. MHASP argued that Walton was not "qualified" under the ADA due to 

her significant absences and therefore could not state a prima facie 

discrimination claim. The District Court held that whether attendance 

was essential to the job was a "hotly contested" fact in this case and 

therefore construed the question in Walton's favor.

 9 
759, 763 (3d Cir. 1994) (quoting McDonnell Douglas Corp. v. 

Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973)). 

The District Court determined that MHASP had articulated 

a legitimate, nondiscriminatory reason when it claimed that 

Walton's failure to provide ACT NOW with the necessary 

leadership and her extensive absences had led it to fear for 

the program's future and therefore to dismiss Walton. See 

Walton, 1997 WL 717053, at *6. 

Because MHASP stated a "legitimate, nondiscriminatory" 

reason for its action, Walton, to defeat summary judgment, 

had to "point to some evidence, direct or circumstantial, 

from which a fact finder could reasonably either (1) 

disbelieve the employer's articulated legitimate reasons; 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. These 

options enable a plaintiff to survive summary judgment, 

without direct evidence, by producing "sufficient evidence to 

raise a genuine issue of fact as to whether the employer's 

proffered reasons were not its true reasons for the

challenged employment action."6 Sheridan v. E.I. DuPont 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 MHASP'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 the evidence 

is such that a reasonable jury could return a verdict 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 offered 

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 real 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). 

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

argues that she produced both direct and indirect evidence 

that MHASP's stated reasons were pretextual. She did not, 

and we will affirm the District Court. 

A. Direct Evidence of Pretext 

Walton points to evidence that the high attrition rate 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, insubordination, 

absenteeism and drug abuse." Id. She asserts that she had 

no control over the attrition rate. This argument is not 

convincing. MHASP's concern with the program's declining 

success rate and its reliance on the faltering results in its 

decision to dismiss Walton was reasonable as long as 

earlier program participants were faced with similar 

difficulties. Walton did not claim that they were not. 

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 Walton's 

significant absences did not depend on Meek's reports, 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 terminating 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 inappropriate." 

Josey v. John R. Hollingsworth Co., 996 F.2d 632, 638-39 

(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. 

 11 
Walton cites White v. Westinghouse Electric Co., 862 F.2d 

56 (3d Cir. 1989), for authority that the circumstances 

surrounding her discharge may be sufficient to raise a 

genuine issue of material fact and preclude summary

judgment. White was dismissed when he was three months 

short of serving thirty years, upon which he would have 

been entitled to greater retirement benefits and the option 

to retire at a younger age. We decided that these 

circumstances indicated that White was discriminated 

against based on his age. However, the rationale behind 

White was rejected by the Supreme Court in Hazen Paper 

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 violate 

the ADEA by firing the employee to prevent his pension 

from vesting, the Court emphasized that a firing that may 

be wrongful in one sense (to purposefully avoid paying 

benefits, for example) is not necessarily wrongful under the 

ADEA (or, in Walton's case, the ADA) "unless the protected 

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 occurred 

because an employee was about to gain increased pension 

benefits indicated a wrongful firing based on age was 

unfounded. Hazen teaches that we must not infer a 

particular type of discrimination from circumstances that 

merely indicate a wrongful firing of some sort. That is just 

what Walton is asking us to do. 

To consider timing and/or employee treatment in relation 

to a dismissal as evidence of discrimination, there must be 

some logical connection between the timing or treatment 

and the possibility of the particular discrimination at issue. 

For example, in Josey, 996 F.2d at 632, a company owned 

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 shareholder. 

We found that the timing of the adoption of the new

company policy preferring shareholders, together with facts 

that indicated racial prejudice by at least one shareholder, 

 12 
was sufficient to create an issue of fact as to whether the 

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

Walton asserts that MHASP's hiring of her replacement a 

month before she was notified that she had beenfired 

showed that the reasons it gave for her dismissal were 

pretextual. Although she was fired while on leave and was 

not given notice that she had been replaced until she 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 the 

dismissal or the related circumstances with a 

discriminatory motive. Rather, the reverse is true. Walton 

was let go during her longest extended absence. This would 

clearly have brought any concerns that MHASP previously 

had regarding her ability to do her job to a head and 

increased the pressure on the association to replace her. 

V. 

Finally, Walton argues that the District Court erred 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 individual with 

a disability who is an applicant or employee, unless[the 

employer] can demonstrate that the accommodation would 

impose an undue hardship on the operation of the business 

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 production 

and persuasion on the issues of reasonable accommodation 

and undue burden are properly placed on the plaintiff or 

the defendant, or are divided between them. See Borkowski 

v. Valley Cent. Sch. Dist., 63 F.3d 131, 136-37 (2d Cir. 

1995) (recounting the various approaches). We now, like the 

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

adopt the Borkowski approach:8 

 First, the plaintiff bears the burden of proving that she 

 is otherwise qualified; if an accommodation is needed, 

 the plaintiff must show, as part of her burden of 

 persuasion, that an effective accommodation exists 

 that would render her otherwise qualified. On the issue 

 of reasonable accommodation, the plaintiff bears only 

 the burden of identifying an accommodation, the costs 

 of which, facially, do not clearly exceed its benefits. 

 These two requirements placed on the plaintiff will 

 permit district courts to grant summary judgments for 

 defendants in cases in which the plaintiff 's proposal is 

 either clearly ineffective or outlandishly costly. 

Id. at 139. 

Following a prima facie showing by the plaintiff that a 

reasonable accommodation exists which would make her 

qualified, the burden shifts to the defendant to prove either 

that the accommodation is unreasonable or that it creates 

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 nonpersuasion 

on the reasonableness of the accommodation and 

demonstrating that the accommodation imposes an undue 

hardship amount to the same thing." Id. 

This distribution of burdens is both fair and efficient. 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 places the 

burden on the party holding the evidence with respect to 

the particular issue. 

Walton asserts that MHASP should have accommodated 

_________________________________________________________________ 

8. We previously indicated, in dictum, our preference for the Borkowski 

approach. See Shiring v. Runyon, 90 F.3d 827 (3d Cir. 1996) (a case 

under the Rehabilitation Act). 

 14 
her by continuing her leave of absence without firing her.9 

The District Court concluded that Walton had made a facial 

showing that unpaid leave was potentially a reasonable 

accommodation for her sickness by introducing the letter 

with which MHASP accepted her request for unpaid leave. 

See Walton, 1997 WL 717053, at *11. Addressing MHASP's 

decision to end its grant of unpaid leave, however, the 

Court reasoned that the "same evidence that demonstrates 

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, although 

possible, was not reasonable." Id. 

We will affirm because Walton's requested 

accommodation -- continued leave -- would have created 

_________________________________________________________________ 

9. Walton originally alleged that MHASP failed to reasonably 

accommodate her on a number of other occasions. She raises only this 

instance on appeal. 

In addition, she now argues that she could have been rehired "in a less 

critical position than Director." In her reply brief, Walton further 

extends 

this argument by asserting that, because MHASP hired her replacement 

without telling her, it failed to make a "good faith effort to communicate 

with her regarding necessary and available accommodations." 

MHASP responds that this argument is untimely because it was not 

asserted by the plaintiff before the District Court. Walton originally 

complained that "[d]efendant failed to reasonably accommodate 

plaintiff 's request for a leave of absence without pay by violating its 

own 

stated policy respecting the duration of such absences." (The proposed 

amended complaint did not alter this claim.) The District Court declined 

to consider the reassignment issue because Walton did 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 manifest injustice would 

otherwise result, public interest can require that the issue be heard. See 

id. This case does not present such circumstances. 

 15 
an undue burden on MHASP. Reasonable accommodations

are "[m]odifications or adjustments to the work 

environment, or to the manner or circumstances under 

which the position held or desired is customarily 

performed, that enable a qualified individual with a 

disability to perform the essential functions of that 

position." 29 C.F.R. S 1630.2(o)(1)(ii). Although unpaid 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 leave is 

beyond the scope of the ADA when the absent employee 

simply will not be performing the essential functions of her 

position. 

Walton attempts to use MHASP's past grants of unpaid 

leave against it by arguing that these instances show that 

the leave was a reasonable accommodation. Here, Holbrook 

v. City of Alpharetta, Georgia, 112 F.3d 1522 (11th Cir. 

1997), is informative. In Holbrook, the city accommodated a 

visually-impaired police detective for a significant period of 

time with respect to essential functions of his job which he 

could not perform without assistance. The court held that 

the city's decision to cease the accommodations did not 

violate the ADA because the city's original accommodations 

exceeded the level that the law required. See id. at 1528. 

Similarly, the unpaid leave granted to Walton exceeded the 

requirement of reasonable accommodation under the ADA, 

and MHASP's decision to discontinue the accommodation 

does not give her a cause of action against it. 

VI. 

In sum, Walton has not convinced us that the District 

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 to amend 

her complaint. Accordingly, we will affirm. 

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A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 17