1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-12-1997

Kralik v. Durbin

Precedential or Non-Precedential:

Docket 97-3089,97-3106

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Recommended Citation

"Kralik v. Durbin" (1997). 1997 Decisions. Paper 273.

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Filed December 12, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

Nos. 97-3089 and 97-3106 

KAREN KRALIK, 

 Appellant in No. 97-3089 

v. 

JOHN DURBIN, in his capacity as Executive Director,

Pennsylvania Turnpike Commission 

KAREN KRALIK, 

v. 

JOHN DURBIN, in his capacity as Executive Director,

Pennsylvania Turnpike Commission, 

 Appellant in No. 97-3106 

On Appeal from the United States District Court 

for the Western District of Pennsylvania 

(D.C. Civ. No. 95-01877) 

Argued October 21, 1997 

BEFORE: MANSMANN, GREENBERG, and 

ALARCON,* Circuit Judges 

(Filed: December 12, 1997) 

_________________________________________________________________ 

*Honorable Arthur L. Alarcon, Senior Judge of the United States Court 

of Appeals for the Ninth Circuit, sitting by designation. 
 Pamela E. Berger (argued) 

 312 Boulevard of the Allies 

 Pittsburgh, PA 15222 

 Attorney for Appellant-Cross 

 Appellee Karen Kralik 

 James B. Brown (argued) 

 Jeffrey A. Van Doren 

 Cohen & Grigsby 

 625 Liberty Avenue 

 2900 CNG Tower 

 Pittsburgh, PA 15222-3115 

 Attorneys for Appellee-Cross 

 Appellant John Durbin 

OPINION OF THE COURT 

GREENBERG, Circuit Judge. 

I. INTRODUCTION 

Karen Kralik appeals from the district court's December 

16, 1996 order entering summary judgment against her 

under the Rehabilitation Act, 29 U.S.C. S 701 et seq., and 

the Americans with Disabilities Act ("ADA"), 42 U.S.C. 

S 12101 et seq., and from the district court's January 14, 

1997 order denying her motion for reconsideration. The 

appellee, John Durbin, cross appeals from the portion of 

the December 16, 1996 order denying summary judgment 

as to one issue even though the order dismissed Kralik's 

complaint. We will affirm the orders granting summary 

judgment and denying the motion for reconsideration and 

will dismiss the cross appeal. 

Kralik alleged in her complaint that she is an individual 

with a disability employed as a toll collector by the 

Pennsylvania Turnpike Commission, an instrumentality of 

the Commonwealth of Pennsylvania, at its Allegheny Valley 

Interchange. Durbin is Executive Director of the 

 2 
Commission so as a matter of convenience and reality we 

will refer to him as the "Commission." Kralik asserted that 

she suffered a back injury in an automobile accident 

unrelated to her work. She further asserted that she sought 

from the Commission the reasonable accommodation of

being relieved from forced overtime "as she cannot work for 

more than eight hours at a time" because of her injuries. 

The Commission, however, refused to grant the 

accommodation except on a temporary basis. After the 

Commission filed an answer, it moved for summary 

judgment on the grounds that Kralik is not a qualified 

individual with a disability and that, in any event, the 

Commission is not obligated to make the requested 

accommodation.1 

In its opinion dated December 13, 1996, the district court 

noted that Kralik had worked for the Commission since 

1988 as a toll collector and in 1990 had become a 

permanent Commission employee at the Allegheny Valley 

Interchange. Kralik was in a bargaining unit represented by 

Teamsters Local Union No. 250. At all relevant times the 

union was a party to a collective bargaining agreement with 

the Commission which included the following overtime 

provision: 

 Section 11. In a twenty-four (24) hour operation, if 

 the Commission experiences difficulty in obtaining a 

 replacement for any work shift, they will call employees 

 using the seniority system described herein. If no 

 employee accepts the assignment, it shall be offered by 

 seniority to employees at the work site. In the event 

 they refuse, the least senior employee, including any 

 temporary employees in the needed job classifications, 

 shall remain as the replacement. A temporary employee 

 shall not be permitted to work overtime when a full- 

 time employee is ready, willing and able to perform the 

 overtime work in question. Temporary Toll Collectors 

 who are scheduled to work forty (40) hours or who 

_________________________________________________________________ 

1. It also urged that Kralik failed to exhaust the remedies provided in 

the 

collective bargaining agreement between her union, Teamsters Local 

Union No. 250, and the Commission, but that issue is no longer in the 

case so we make no further reference to it. 

 3 
 have already worked forty (40) hours in a given work 

 week are not to be asked to work a vacant shift unless 

 all the Temporary Toll Collectors who are not 

 scheduled to work nor have worked forty (40) hours 

 and all the permanent Toll Collectors have refused to 

 work the vacant shift. All hours worked by a

 Temporary Toll Collector will be counted towards the 

 forty (40) hours requirement except those hours 

 worked which were first offered to and refused by all 

 eligible permanent Toll Collectors. 

 Scheduled work time must be adjusted to comply 

 with the above. 

 A. Consistent with Article IX, in the event that 

 overtime opportunities are refused by all employees, 

 the overtime shift shall be assigned to the employee 

 currently working with the least amount of seniority. 

 This will be known as a `forced overtime assignment'. 

The court observed that after two medical leaves of

absence due to her back injury, Kralik on November 7, 

1994, submitted a "Reasonable Accommodation Form" to 

the Commission requesting exemption from forced overtime 

requirements. Kralik subsequently filed a charge with the 

Equal Employment Opportunity Commission ("EEOC") 

asserting that the Turnpike Commission had violated the 

ADA in not making an accommodation and that the union, 

Kralik, and the Commission later had entered into an 

agreement temporarily excusing her from being forced to 

work overtime. Then, as the court noted, she filed this 

action seeking relief under both the ADA and section 504 of 

the Rehabilitation Act, 29 U.S.C. S 794. 

The court, citing Helen L. v. DiDario, 46 F.3d 325, 331 

(3d Cir.), cert. denied, 116 S.Ct. 64 (1995), held that the 

similarities between the two statutes permit a joint analysis 

of Kralik's claims.2 The court then explained: 

_________________________________________________________________ 

2. As noted in Lyons v. Legal Aid Soc'y, 68 F.3d 1512, 1514-15 (2d Cir. 

1995), "[t]he Rehabilitation Act . . . prohibits disability-based 

discrimination by government agencies and other recipients of federal 

funds . . . ." The ADA has a broader scope as it defines a "covered 

entity" 

as "an employer, employment agency, labor organization, or joint labormanagement committee." 42 U.S.C. S 12111(2). Certain employers, 

however, are not included within section 12111(2). See 42 U.S.C. 

S 12111(5). 

 4 
 [U]nder either the ADA or the Rehabilitation Act, a 

 plaintiff can state a claim for discrimination based 

 upon her employer's failure to accommodate her 

 handicap by alleging facts showing (1) that the 

 employer is subject to the statute under which the 

 claim is brought, (2) that she is an individual with a 

 disability within the meaning of the statute in question, 

 (3) that, with or without reasonable accommodation, 

 she could perform the essential functions of the job, 

 and (4) that the employer had notice of the plaintiff's 

 disability and failed to provide such accommodation. 

Slip op. at 6 (quoting Lyons v. Legal Aid Soc'y, 68 F.3d 

1512, 1515 (2d Cir. 1995)). For purposes of its summary 

judgment motion, the Commission agreed that it was 

subject to both the ADA and the Rehabilitation Act and had 

notice of Kralik's alleged disability, yet sought summary 

judgment on the grounds that Kralik was not a qualified 

individual with a disability and could not, with or without 

reasonable accommodation, perform the essential functions 

of the job as a toll collector. 

As the court noted, both the ADA and the Rehabilitation 

Act define "disability" as a "physical or mental impairment 

that substantially limits" one or more of the major life 

activities of the individual claiming to have a disability. 42 

U.S.C. S 12102(2); 29 U.S.C. S 706(26). Major life activities 

include "functions such as caring for oneself, performing 

manual tasks, walking, seeing, hearing, speaking, 

breathing, learning and working," 29 C.F.R. S 1630.2(i), as 

well as "sitting, standing, lifting [and] reaching." 29 C.F.R. 

S 1630 app. 

After analyzing the record the court concluded as follows: 

(1) Kralik did not produce evidence that her ability to work, 

to engage in the major life activities of caring for herself or 

her house, to travel or engage in leisure activities, or to 

twist had been substantially impaired; but (2) there was a 

genuine dispute of fact as to whether Kralik's ability to sit, 

stand, and stoop had been impaired. Thus, the court

denied the Commission's motion for summary judgment on 

the issue of whether Kralik was a qualified individual with 

a disability. 

 5 
The court next considered the Commission's alternate 

contention that Kralik's claim could not succeed because 

the requested accommodation, exemption from the forced 

overtime provision, was not reasonable. In this regard the 

Commission pointed out that such an exemption could

require the Commission to compel an employee with more 

seniority than Kralik to work overtime, forcing the

Commission to infringe another employee's seniority rights 

under the collective bargaining agreement. 

The court cited various cases under the Rehabilitation 

Act and the ADA supporting a conclusion that a measure 

that violates a seniority system established in a collective 

bargaining agreement is not a "reasonable accommodation," 

and thus is not required by the ADA. See Eckles v. 

Consolidated Rail Corp., 94 F.3d 1041, 1052 (7th Cir. 1996) 

(discussed below), cert. denied, 117 S.Ct. 1318 (1997); 

Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1114 (8th 

Cir. 1995) ("The ADA does not require that Northwest take 

action inconsistent with the contractual rights of other 

workers under a collective bargaining agreement."); Wooten 

v. Farmland Foods, 58 F.3d 382, 386 (8th Cir. 1995) ("An 

employer is not required to make accommodations that 

would violate the rights of other employees. Farmland 

Foods had no obligation to terminate other employees or 

violate a collective bargaining agreement in order to 

accommodate Wooten, even if it perceived him to have a 

substantial impairment.") (citation omitted); Milton v. 

Scrivner, Inc., 53 F.3d 1118, 1124-25 (10th Cir. 1995) ("An 

employer is not required by the ADA to reallocate job duties 

in order to change the essential function of a job. An 

accommodation that would result in other employees 

having to work[ ] harder or longer hours is not required.") 

(citations omitted); Shea v. Tisch, 870 F.2d 786, 790 (1st 

Cir. 1989) ("Consequently, we . . . conclude that the postal 

service was not required to accommodate plaintiff further 

by placing him in a different position since to do so would 

violate the rights of other employees under the collective 

bargaining agreement."); Carter v. Tisch, 822 F.2d 465, 467 

(4th Cir. 1987) ("Reassigning Carter to permanent light 

duty, when he was not entitled to one of a limited number 

of light duty positions, might have interfered with the rights 

 6 
of other employees under the collective bargaining 

agreement."). 

The court found that Kralik's requested accommodation 

would infringe upon the legitimate seniority rights of other 

employees established in the collective bargaining 

agreement. The court then, for the very reason that the 

accommodation was temporary, rejected Kralik's contention 

that the temporary agreement described above amounted to 

a concession that the requested accommodation is 

reasonable. See Shea, 870 F.2d at 789 & n.4 (holding that 

employer was not required to institute permanent 

accommodation that would violate rights under collective 

bargaining agreement despite employer's ability to maintain 

accommodation temporarily without compromising other 

employees' rights). Thus, the court concluded that 

"regardless of Kralik's ability to establish that one or more 

of her major life activities were substantially limited, the 

requested accommodation is not reasonable, in that it 

would require the Commission to violate the seniority 

rights of other employees as set forth in the collective 

bargaining agreement." Consequently, the court granted the 

Commission summary judgment. 

Subsequently, Kralik moved for reconsideration 

contending, as she explains in her brief, that there was "an 

agreement between the Teamsters and the . . . Commission 

regarding the accommodation of another fare collector 

[which] permits assigning [the collector] to a shift 

independently of the bidding process required by the 

collective bargaining agreement." Br. at 5. The 

documentation attached to Kralik's motion included a letter 

from the union to the Commission stating that as long as 

the other collector's request is covered by and was

reasonable under the ADA, the union would not object to 

the assignment of that collector and "will process no 

grievances concerning this matter." App. at 93. The district 

court denied the motion for reconsideration as Kralik did 

not explain why she had not produced this evidence earlier.3 

_________________________________________________________________ 

3. The court also indicated in denying the motion for reconsideration that 

Kralik "neither relied on the EEOC amicus brief in her earlier brief nor 

mentioned that the 7th Circuit rejected the argument therein." We are 

uncertain why Kralik's failure to rely on the EEOC brief was germane to 

the motion but we believe that the reference to the Court of Appeals for 

the Seventh Circuit probably was to Eckles, 94 F.3d at 1050-52, which 

we cite above and discuss at great length below. 

 7 
Kralik then appealed and the Commission cross appealed. 

The district court had jurisdiction under 28 U.S.C. SS 1331 

and 1343 and we have jurisdiction under 28 U.S.C. S 1291. 

We exercise plenary review over the order granting 

summary judgment but will review the order denying 

reconsideration on an abuse of discretion basis. 

II. DISCUSSION 

A. The appeal 

Preliminarily we point out that Kralik does not question 

the district court's joint analysis of her ADA and 

Rehabilitation Act claims. Thus, she does not contend that 

she might be entitled to relief under one act but not the 

other. Consequently, while we will focus our analysis 

primarily on the ADA, our analysis in this case applies 

equally to her Rehabilitation Act claim. The ADA provides 

that prohibited discrimination includes "not making

reasonable accommodations to the known physical or 

mental limitations of an otherwise qualified individual with 

a disability." 42 U.S.C. S 12112(b)(5)(A). Inasmuch as the 

district court held that there was a material dispute of fact 

as to whether she was a qualified individual with a

disability, Kralik primarily challenges the district court's 

determination that the Commission did not discriminate 

against her in violation of the ADA by failing to exempt her 

from the forced overtime provisions of her union's collective 

bargaining agreement. 

In urging us to reverse she points to 42 U.S.C. 

S 12112(b)(2), an ADA provision which provides that

discrimination includes a covered entity's: 

 participating in a contractual or other arrangement or 

 relationship that has the effect of subjecting a covered 

 entity's qualified applicant or employee with a disability 

 to the discrimination prohibited by this subchapter 

 (such relationship includes a relationship with an 

 employment or referral agency, labor union, an 

 organization providing fringe benefits to an employee of 

 the covered entity, or an organization providing 

 training and apprenticeship programs). 

 8 
She then argues that under both the Rehabilitation Act, as 

amended in 1991, and the ADA, an employer should 

consider making an accommodation by reassigning an 

employee. See Br. at 9 (citing Shiring v. Runyon, 90 F.3d 

827, 832 (3d Cir. 1996)). She further contends that the 

Commission's adherence to the forced overtime provision in 

the collective bargaining agreement violates the plain 

language of 42 U.S.C. S 12112(b)(2), and thus of the 

Rehabilitation Act, and that the legislative history of the 

ADA supports her position by establishing that an " `entity 

may not do through a contractual provision what it may not 

do directly . . . .' " Br. at 10 (quoting H.R. Rep. No. 485(II) 

101st Cong., 2d Sess. 59-60 (1990)). 

She also argues that EEOC guidelines favor a flexible 

approach wherein unions and employers "consult and work 

out an accommodation," br. at 14, and maintains that the 

Commission could accommodate her by excusing her from 

forced overtime without undue hardship, difficulty or 

expense. Br. at 16. In fact, as Kralik emphasizes, the union 

and the Commission agreed on a temporary basis that the 

Commission would not force Kralik to work overtime and, 

as she pointed out in her motion for reconsideration, the 

Commission with the union's agreement accommodated 

another toll collector by assigning him to a shift without 

regard for the bidding process in the collective bargaining 

agreement. Furthermore, in practice the Commission rarely 

would need to assign Kralik to forced overtime. Indeed, at 

oral argument before this court Kralik indicated that during 

the pendency of this litigation the Commission never has 

required her to work forced overtime. She also contends 

that the cases relied on by the district court and cited 

above are either factually distinct or incorrectly decided. Br. 

at 17-19. 

In considering the merits of this appeal we reiterate that 

the accommodation Kralik seeks would require the 

Commission to violate the collective bargaining agreement. 

Nevertheless, we agree with her that the collective

bargaining agreement is not necessarily decisive because 

the union and the Commission together may modify the 

agreement as they did on a temporary basis by relieving her 

from forced overtime. But Kralik points to nothing in the 

 9 
record to support a contention that the union has 

communicated to the Commission a willingness to waive 

the forced overtime provision with respect to her as long as 

she is a qualified individual with a disability. 4 Rather, she 

refers to a letter to her by the secretary-treasurer of her 

union stating that "it may be possible to waive[the forced 

overtime] provision if it can be shown that your injury 

qualifies you under the [ADA]." App. at 82-83. Of course, a 

union waiver of the forced overtime provision would vitiate 

the Commission's argument that it could not accommodate 

Kralik without violating the agreement. Unfortunately for 

Kralik, however, the union has not given the Commission 

such a waiver. Accordingly, the issue before us is clear: is 

the accommodation Kralik seeks unreasonable because it 

would require the Commission to infringe on the seniority 

rights of other employees in the collective bargaining 

agreement?5 

On this point we follow Eckles, 94 F.3d 1041, which is a 

compelling precedent. In that case Eckles, who suffered 

from epilepsy, sought from his employer, Conrail, an 

accommodation consisting of an assignment to a position 

appropriate for his disability. The difficulty with his request 

was that it would have required Conrail to infringe on the 

seniority rights of other employees under the collective 

bargaining agreement. Id. at 1043. Thus, while Conrail did 

not contend that the accommodation would place an undue 

burden on it, it argued that the accommodation simply was 

not required "due to its effects on the legitimate seniority 

rights of other employees." Id. at 1045. Accordingly, the 

issue in Eckles was: "whether the ADA requires as 

`reasonable accommodation' that a disabled individual be 

_________________________________________________________________ 

4. In view of the EEOC charge Kralik brought against the union after the 

district court ruled against her, which we discuss below, we doubt that 

it did so. 

5. Kralik also argues that the requested accommodation does not place 

an undue burden on the Commission because of "the existence of 

provisions [in the collective bargaining agreement] for other workers to 

voluntarily perform [overtime]." Br. at 7. This observation does not 

support her case because the forced overtime provision by its terms 

applies only "in the event that overtime opportunities are refused by all 

employees." 

 10 
given special job placement ... in violation of a bona fide 

seniority system in place under a collectively bargained 

agreement, when such accommodation is the only way of 

meeting the job restrictions of that disabled individual." Id. 

at 1045-46. 

The Eckles court pointed out that the case posed "a

conflict not so much between the rights of the disabled 

individual and his employer and union, but between the 

rights of the disabled individual and those of his coworkers." Id. at 1046. The court also observed that the 

applicability of 42 U.S.C. S 12112(b)(2), which Kralik 

invokes and which prohibits discrimination brought about 

through participation in contractual relationships,

depended in that case on establishing a violation of section 

12112(b)(5)(A), since the only form of discrimination alleged 

there, as here, was the failure to provide a reasonable 

accommodation. Thus, if reasonable accommodation"does 

not require reassignment to a position held by another 

employee, the collective bargaining agreement at issue did 

not subject Eckles to prohibited discrimination by 

establishing a bona fide seniority system that regulates the 

holding of positions at Conrail." Eckles, 94 F.2d at 1046. 

The court acknowledged that a covered entity cannot

avoid its ADA duties by contractual manipulation. But 

inasmuch as Eckles did not claim that "the seniority 

system was established, even in part, in order to bypass the 

duty to accommodate" a qualified individual with a 

disability under the ADA, there was "no evidence of . . . 

subterfuge." Id. The court then observed that: 

 if the ADA does not require that collectively bargained 

 seniority rights be compromised in order to reasonably 

 accommodate a disabled individual, Eckles cannot 

 establish that Conrail and the Union are guilty of 

 participating in a contractual arrangement that has the 

 effect of subjecting him to prohibited discrimination. 

 Hence the issue is simply what is required by 

 `reasonable accommodation.' 

Id. at 1046. 

The court recognized that although the accommodation 

Eckles sought did not require firing of other employees, 

 11 
"what would be lost to the other employees, particularly 

more senior employees, would be some of the value of their 

seniority with the company, not their employment." Id. at 

1047. The court held that even this limited infringement on 

other employees' seniority rights was not reasonable under 

the ADA, and pointed out that: 

 courts have been unanimous in rejecting the claim that 

 `reasonable accommodation' under the Rehabilitation 

 Act requires reassignment of a disabled employee in 

 violation of a bona fide seniority system. In fact, a 

 virtual per se rule has emerged that such reassignment 

 is not required under the Rehabilitation Act's duty to 

 reasonably accommodate. 

Id. (citations omitted). Thus, the Eckles court explained that 

Congress adopted the ADA against "the backdrop of wellestablished precedent that `reasonable accommodation' 

under the Rehabilitation Act had never been held to require 

trumping the seniority rights of other employees." Id. at 

1048. 

In concluding its comprehensive discussion, the Eckles 

court held that "[a]fter examining the text, background, and 

legislative history of the ADA duty of `reasonable 

accommodation,' we conclude that the ADA does not 

require disabled individuals to be accommodated by 

sacrificing the collectively bargained, bona fide seniority 

rights of other employees." Id. at 1051. While the court 

recognized "that many of the `reasonable accommodations' 

specifically proposed within the ADA also have effects on 

other workers," it found that "collectively bargained 

seniority rights have a pre-existing special status in the law 

and that Congress to date has shown no intent to alter this 

status by the duties created under the ADA." Id. at 1052. 

Eckles is convincing and is in harmony with the other 

precedents we cite above. Thus, we, like the Fifth Circuit 

Court of Appeals, will follow it. See Foreman v. Babcock & 

Wilcox Co., 117 F.3d 800, 810 (5th Cir. 1997) ("Following 

the other circuits which have considered this issue, we hold 

that the ADA does not require an employer to take action 

inconsistent with the contractual rights of other workers 

under a collective bargaining agreement.").6 In doing so we 

_________________________________________________________________ 

6. Kralik relies heavily on Aka v. Washington Hosp. Center, 116 F.3d 

876, 890-97 (D.C. Cir. 1997), reh'g en banc granted and judgment 

 12 
recognize that in Eckles the proposed infringement on other 

employees' seniority rights was far more intrusive than the 

infringement at issue here. Yet the lesser degree of 

infringement on other employees' seniority rights does not 

distinguish adequately this case from Eckles, which

recognized the principle at stake here: an accommodation 

to one employee which violates the seniority rights of other 

employees in a collective bargaining agreement simply is 

not reasonable. 

Requiring an employer to violate the collective bargaining 

agreement in situations where the employer regards the 

infringement on seniority rights as insubstantial and the 

accommodation reasonable unfairly would expose the 

employer to potential union grievances as neither the union 

nor the arbitrator hearing a grievance would be required to 

disregard violations of the collective bargaining agreement. 

Thus, a rule requiring an employer to violate seniority 

rights would subject the employer to the cost of defending 

itself against grievances as well as to the risk that it might 

be subject to a costly remedy. Accordingly, even minor 

infringements on other employees' seniority rights impose 

unreasonable burdens on employers who, by reason of

those infringements, must face the consequences of 

violating the collective bargaining agreement. 

In this regard, we point out that, for reasons we do not 

know, the union apparently did not agree that the 

Commission could relieve Kralik from forced overtime for 

the duration of her status as a qualified individual with a 

disability. While Kralik seemed to contend at oral argument 

that the union would agree to such an arrangement if she 

_________________________________________________________________ 

vacated, 124 F.3d 1302 (D.C. Cir. 1997), which is inconsistent with 

Eckles and thus with the result we reach. Aka stated that "in some cases 

the degree of infringement imposed by a `reasonable accommodation' to 

one employee's disability on a `right' held by other employees under the 

collective bargaining agreement may be extremely slight, and may 

impose virtually no `hardship' at all," and thus stated that it would be 

"inappropriate to draw blanket conclusions regarding whether the ADA 

can `trump' provisions in collective bargaining agreements." Id. at 896. 

Aka, however, has been vacated and in any event is inconsistent with 

Eckles, which we find to be soundly reasoned. 

 13 
established that she was a qualified individual with a 

disability who needed the accommodation, as we indicated 

above she points to nothing in the record to demonstrate 

that the union ever expressed to the Commission its

willingness to extend the temporary agreement we have 

described.7 

What makes the requested accommodation in this case

unreasonable is not that it would disrupt the Commission's 

operations because we cannot say that it would do so. 

Rather, the requested accommodation is unreasonable

because it would require the employer to violate its 

collective bargaining agreement and run the risks that the 

violation entails. Accordingly, we reject Kralik's suggestion 

that an accommodation which requires an employer to

violate a collective bargaining agreement may impose 

virtually no hardship on the employer. In short, it is 

appropriate for the union, rather than the employer, to 

make the determination that the infringement is justifiable 

by releasing the employer from its obligation to follow the 

seniority provisions of the collective bargaining agreement 

to accommodate a qualified individual with a disability.8 

At oral argument before us the Commission suggested

that even if the union were willing to waive the forced 

overtime provision with respect to Kralik, because of the 

Commission's personnel needs it might not be able to 

accommodate Kralik by excusing her from forced overtime. 

_________________________________________________________________ 

7. According to Kralik the Commission has not applied the forced 

overtime provision to her during this litigation and yet the union has not 

instituted a grievance proceeding. While this may be true, it does not 

follow that the union will remain willing to refrain from grieving in the 

future. The union's apparent acquiescence merely is a de facto 

continuation of the temporary agreement we describe above. We decline 

to hold that the Commission is required to accommodate Kralik for the 

duration of her disability as we cannot assume that the union's 

acquiescence will continue indefinitely. 

8. We note, moreover, that if an employer grants an accommodation by 

violating seniority rights of other employees under the collective 

bargaining agreement, the employer in its operations may be making no 

accommodation at all. As the Eckles court recognized, the 

accommodation instead will be made by the disabled employee's coworkers who will lose a benefit of their seniority status. 

 14 
Obviously we need not explore that claim, which the

Commission apparently did not advance in the district 

court. We also point out that our decision does not

necessarily preclude Kralik from being excused from the 

forced overtime provisions as the union in the future might 

assure the Commission that it will agree to the 

Commission's relieving Kralik from those provisions if she 

is a qualified individual with a disability who needs the 

accommodation. Such a waiver would eliminate the basis 

for our conclusion that the accommodation Kralik seeks is 

not reasonable, leaving for determination the question of 

whether Kralik is a qualified individual with a disability 

who would be entitled to be relieved from forced overtime as 

a reasonable accommodation. 

In light of our conclusions we will affirm the order for 

summary judgment entered December 16, 1996. Moreover, 

it is clear that the district court did not abuse its discretion 

in denying the motion for reconsideration, either on the 

grounds that the new material Kralik presented could not 

have affected the outcome of the case in the district court 

any more than it has here, see Harsco Corp. v. Zlotnicki, 

779 F.2d 906, 909 (3d Cir. 1985), or on the separate 

grounds that Kralik offered no justification for her untimely 

presentation of the material. Consequently, we also will 

affirm the order entered January 14, 1997, denying the 

motion for reconsideration. 

B. The cross appeal 

The final issue that we address is the Commission's

contention that the district court erred in denying its 

motion for summary judgment on the question of whether 

Kralik was a qualified individual with a disability. The 

Commission recognizes its apparent lack of standing to 

appeal and acknowledges "that in the normal course a 

party must be aggrieved by the final judgment of the 

district court which it seeks to challenge." Br. at 16. In fact, 

it even cites cases supporting the principle, namely Deposit 

Guar. Nat'l Bank v. Roper, 445 U.S. 326, 333-34, 100 S.Ct. 

1166, 1171-72 (1980), and Watson v. City of Newark, 746 

F.2d 1008, 1010 (3d Cir. 1984). Yet it contends that courts 

"have permitted an appeal from a seemingly favorable 

 15 
disposition when adverse practical consequences, not 

normally contemplated by legal theory or policy 

considerations, manifest themselves." Br. at 16. On this 

point the Commission contends that the denial of summary 

judgment has prejudiced it in an EEOC proceeding, which 

Kralik brought against the Commission and the union after 

the district court denied her motion for reconsideration, 

alleging retaliation for her having brought this action, and 

discrimination based on her disability and her sex.

We are satisfied that even if in some cases a completely 

successful party might have standing to appeal, this is not 

such a case. In its partial denial of the Commission's 

motion for summary judgment, the district court merely 

held that at a particular time based on the record before it 

there was a dispute of fact as to whether Kralik was a 

qualified individual with a disability. While we certainly 

understand why the Commission would like a ruling that 

Kralik was not a qualified individual with a disability at 

that time, the district court's inherently tentative 

conclusion, though unhelpful to the Commission, is not 

harmful to it either, because the conclusion does not 

preclude the Commission from rejecting a new 

accommodation sought by Kralik or from prevailing in any 

challenge to that rejection on the grounds that she is not a 

qualified individual with a disability.9 The Commission has 

failed to identify sufficient adverse consequences of the 

order from which it cross appeals to confer standing to 

appeal. See In re DES Litig., 7 F.3d 20, 23-25 (2d Cir. 1993) 

(dismissing appeal for lack of standing where appellant 

prevailed below and was not aggrieved by collateral estoppel 

effects or other prejudicial effects of determination below). 

III. CONCLUSION 

In view of the aforesaid, we will affirm the orders of 

December 16, 1996, and January 14, 1997, and will 

_________________________________________________________________ 

9. We do not suggest that we could not have reviewed the part of the 

order denying summary judgment had we disagreed with the district 

court's entry of summary judgment on the issues addressed in this 

opinion. 

 16 
dismiss the cross appeal. The parties will bear their own 

costs on this appeal. 

 17 
MANSMANN, Circuit Judge, dissenting. 

Because I would not hold that a requested 

accommodation for purposes of the ADA is per se 

unreasonable where it conflicts with the seniority 

provisions of a collective bargaining agreement, I 

respectfully dissent. Although the majority holdingfinds 

support in the caselaw, resolution of the issue before us is 

not as straightforward as the majority opinion suggests. 

Tension between the ADA and other labor relations 

statutes, particularly the National Labor Relations Act 

("NLRA"), is inevitable. As one commentator observed: 

 While the ADA fosters equal employment opportunities 

 for all Americans without regard to disability, its 

 drafters ignored a very serious problem. The ADA, 

 while promoting the rights of individual Americans in 

 the workplace, conflicts dramatically with the[NLRA], 

 an act designed to promote collective rights in the 

 workplace. The ADA, the regulations, and the

 Interpretive Guidance all fail to address the issue of 

 how to reasonably accommodate an individual with a 

 disability under the ADA in a unionized setting-- 

 where such rights are typically received as part of a 

 collective bargaining agreement. As a result of this 

 oversight, conflicts between the NLRA and the ADA 

 have arisen. 

Robert W. Pritchard, Avoiding the Inevitable: Resolving the 

Conflicts Between the ADA and the NLRA, 11 The Labor 

Lawyer 375 (1995). This statutory tension has been 

particularly apparent where, as here, the duty to provide a 

reasonable accommodation under the ADA conflicts with an 

arguably contrary collective bargaining obligation.

The text of the ADA does not "decisively answer the

question of whether `reasonable accommodation' can 

require that otherwise valid seniority rights of other 

employees be trumped." Eckles v. Consolidated Rail 

Corporation, 94 F.3d 1041, 1047 (7th Cir. 1996). In this 

way, the ADA differs from other anti-discrimination

statutes. For example, Title VII of the Civil Rights Act of 

1964 (Title VII) specifically authorizes employers"[t]o apply 

different standards of compensation, or different terms, 

 18 
conditions, or privileges of employment pursuant to a bona 

fide seniority or merit system. . . ." 42 U.S.C. S 2000e-2(h). 

The Age Discrimination in Employment Act (ADEA) contains 

an analogous provision: "It shall not be unlawful for an 

employer, employment agency or labor organization . . . to 

observe the terms of a bona fide seniority system.. . ." 29 

U.S.C. S 623(f)(2)(A). Courts required to assess the 

competing concerns of reasonable accommodation and the 

sanctity of the collective bargaining agreement have 

regularly relied on precedent generated under the 

Rehabilitation Act of 1973 (the Rehabilitation Act). 29 

U.S.C. S 701 et seq. "[T]he term `reasonable accommodation' 

in the ADA was apparently borrowed from the regulations 

issued by the Equal Employment Opportunity Commission 

[EEOC] in implementation of the Rehabilitation Act. . . ." 

Eckles, 94 F.3d at 1047. In determining whether an 

accommodation which conflicts with a collective bargaining 

agreement can ever be reasonable, courts construing the 

Rehabilitation Act have adopted a per se rule: a collective 

bargaining agreement will always "trump" the 

accommodation.1 

Confronted with Congress' failure to articulate definitively 

a different rule in cases arising under the ADA, a number 

of our sister courts of appeals have applied or have 

indicated that they would apply this Rehabilitation Act per 

se rule in reasonable accommodation cases arising under 

the ADA.2 The majority, relying primarily upon the decision 

_________________________________________________________________ 

1. See, e.g., Shea v. Tisch, 870 F.2d 786 (1st Cir. 1989); Carter v. 

Tisch, 

822 F.2d 465 (4th Cir. 1987); Daubert v. United States Postal Service, 

733 F.2d 1367 (10th Cir. 1984). 

2. Maj. opinion at 6. It is important to note that the courts in Milton v. 

Scrivner, Inc., 53 F.3d 1118 (10th Cir. 1995), and Wooten v. Farmland 

Foods, 58 F.3d 382 (8th Cir. 1995), discussed the per se rule in the 

context of the ADA in dicta. Neither analyzed the conflict between the 

ADA and the NLRA. 

It is important to note, too, that a number of commentators have 

criticized application of a per se rule in the context of the ADA. See 

Jerry 

M. Hunter, Potential Conflicts Between Obligations Imposed on Employees 

and Unions by the National Labor Relations Act and the Americans with 

Disabilities Act, 13 N. Ill. U. L. Rev. 207 (1993); Robert W. Pritchard, 

 19 
in Eckles, embraces this approach. I am convinced, 

however, that this per se rule, imported from cases decided 

under the Rehabilitation Act, was not intended to apply in 

the context of the ADA. 

Although the plain text of the ADA does not definitively 

resolve the issue before us, it does contain language which 

suggests that seniority systems, inviolable under the 

Rehabilitation Act, might, in certain circumstances, yield to 

reasonable accommodation claims. Unlike the 

Rehabilitation Act and Title VII, the ADA defines the term 

"reasonable accommodation" to include: "job restructuring, 

part-time or modified work schedules, reassignment to a 

vacant position, acquisition or modification of equipment 

. . . and other similar accommodations for individuals with 

disabilities." 42 U.S.C. S 12111(9)(B). In a unionized 

workplace, these potential accommodations will almost 

always conflict to some degree with established seniority 

systems. The ADA, however, indicates that these 

accommodations should be made available without 

addressing their impact on seniority concerns. While this 

feature of the ADA is not dispositive, it is significant, 

especially when it is considered against the background of 

the ADA's broad sweep3 and its legislative history.

The Report of the House Committee on Education and 

Labor supports the conclusion that under the ADA, the 

collective bargaining agreements, including those provisions 

impacting seniority, were not intended to "trump" 

reasonable accommodation claims: 

_________________________________________________________________ 

Avoiding the Inevitable: Resolving the Conflicts Between the ADA and the 

NLRA, 11 The Labor Lawyer 375 (1995); Joanne Jocha Ervin, Reasonable 

Accommodation and the Collective Bargaining Agreement Under the 

Americans with Disabilities Act, 1991 Det. C. L. Rev. 925 (1991); RoseDaly Rooney, Note, Reconciling Conflicts Between the Americans with 

Disabilities Act and the National Labor Relations Act to Accommodate 

People With Disabilities, 6 DePaul Bus. L. J. 387 (1994). 

3. The ADA expanded the scope of the Rehabilitation Act both in 

coverage and in the degree of protection afforded. See, Note, Civil Rights 

and the Disabled: A Comparison of the Rehabilitation Act of 1973 and the 

Americans with Disabilities Act of 1990 in the Employment Setting, 54 

Alb. L. Rev. 123 124-25 (1989). 

 20 
 The collective bargaining agreement could be relevant 

 . . . in determining whether a given accommodation is 

 reasonable. For example, if a collective bargaining 

 agreement reserves certain jobs for employees with a 

 given amount of seniority, it may be considered as a 

 factor in determining whether it is a reasonable 

 accommodation to assign an employee with a disability 

 without seniority to that job. However, the agreement 

 would not be determinative on this issue.4 

H.R. Rep. No. 485 (II), 101st Cong., 2d Sess. 63 (1990), 

reprinted in 1990 U.S.C.C.A.N. 267, 345 (emphasis added). 

These reports provide sound foundation for the argument 

that Congress intended to depart from the line of authority 

developed under the Rehabilitation Act holding that a 

requested accommodation is per se unreasonable when it 

conflicts with a seniority provision in a collective bargaining 

agreement. The legislative history indicates that courts are 

obligated to look beyond the collective bargaining 

agreement in order to determine whether a particular 

accommodation is reasonable. The status of the collective 

bargaining agreement under the ADA has been diminished; 

it is now only one factor to be considered in determining 

whether a proposed accommodation is reasonable. 

Additional evidence for this view of the role of collective 

bargaining agreements under the ADA is found in the

legislative history relating to the "undue hardship" 

provisions of the Act. Under the ADA, an employer's failure 

to make "reasonable accommodations to the known 

physical or mental limitations of an otherwise qualified 

individual with a disability" constitutes prohibited 

discrimination "unless [the employer] can demonstrate that 

the accommodation would impose an undue hardship 

on the operation of the business. . . ." 42 U.S.C. 

S 12112(b)(5)(A). 

The EEOC regulations interpreting this section provide 

that an employer may demonstrate "that the provision of a 

particular accommodation would be unduly disruptive to its 

_________________________________________________________________ 

4. The Report of the Senate Committee on Labor and Human Resources 

contains language identical to that of the House Report. See S.Rep. No. 

101-116 at 32 (1989). 

 21 
other employees or to the functioning of its business. The 

terms of a collective bargaining agreement may be relevant 

to this determination." 29 C.F.R. S 1630.15(d) app. (1996) 

(emphasis added). The EEOC's Technical Assistance 

Manual underscores the reduced role assigned to the

collective bargaining agreement under the ADA, stating that 

"[t]he terms of a collective bargaining agreement may be 

relevant in determining whether an accommodation would 

impose an undue hardship." EEOC Technical Assistance 

Manual S 3.09, at III-16 (1992). The example given in the 

Manual to illustrate the status of a collective bargaining 

agreement in determining undue hardship refers 

specifically to a situation where the requested 

accommodation conflicts with a seniority provision in a 

collective bargaining agreement: 

 A worker who has a deteriorated disc condition and 

 cannot perform the heavy labor functions of a 

 machinist job, requests reassignment to a vacant 

 clerk's job as a reasonable accommodation. If the 

 collective bargaining agreement has specific seniority 

 lists and requirements governing each craft, it might be 

 an undue hardship to reassign this person if others 

 had seniority for the clerk's job. 

Id. 

Clearly, the EEOC did not assume that Congress, in 

drafting the ADA, had incorporated the per se rule adopted 

by the majority. If seniority provisions of a collective 

bargaining agreement were inviolate under the Act, any 

conflicting proposed accommodation would automatically 

be unreasonable; there would never be a need to consider 

whether such an accommodation posed an undue 

hardship. 

The text of the ADA, its legislative history, and the 

relevant EEOC regulations convince me that there are 

enough dissimilarities between the Rehabilitation Act and 

the ADA to warrant rejection of the per se rule announced 

by the majority in favor of a fact-intensive approach which 

examines whether a particular proposed accommodation 

constitutes an "undue hardship." This approach, which is 

consistent with the statute, the legislative history, and the 

 22 
regulations, protects all parties, including those other 

employees subject to the terms of the collective bargaining 

agreement by allowing each accommodation to be examined 

in light of its cumulative impact on the business operation 

as a whole. Far from being ignored under this approach, 

the collective bargaining agreement is relegated to its 

intended status as a factor to be considered in determining 

whether a requested accommodation imposes an undue 

hardship. 

Although I recognize that the opinion of the Court of 

Appeals for the D.C. Circuit in Aka v. Washington Hospital, 

116 F.3d 876 (D.C. Cir. 1997), reh'g in banc granted and 

judgment vacated, 124 F.3d 1302 (D.C. Cir. 1997), lacks 

precedential value, I find its analysis and rejection of Eckles 

sound and adopt its reasoning as the essence of my 

disagreement with the majority: 

 [I] reject the Eckles court's analysis because the plain 

 language of the ADA requires employers to provide 

 accommodations to the disabilities of qualified 

 employees unless the accommodation in question 

 would be "unreasonable" or would impose an"undue 

 hardship," because the suggested "reasonable

 accommodations" listed in the statute include several 

 . . . that commonly will conflict to some degree with the 

 applicable collective bargaining agreements in 

 unionized workplaces -- including the portions of those 

 agreements creating "seniority rights," and because 

 both the legislative history of the ADA and the relevant 

 EEOC regulations clearly indicate that the fact that a 

 particular accommodation would require some 

 departure from the terms of a collective bargaining 

 agreement should not in itself determine the question 

 of whether an employer may be required to provide the 

 accommodation. . . . 

* * * * 

 [I] likewise think it is inappropriate to draw blanket 

 conclusions regarding whether the ADA can "trump" 

 provisions in collective bargaining agreements, or 

 whether the ADA can require the "sacrifice[ ]" of "rights" 

 created in other employees by these agreements. . . . 

 23 
 [A]fter all, in some cases the degree of infringement 

 imposed . . . may impose virtually no "hardship" at all. 

 If one nondisabled employee entitled to a vacant 

 position under the seniority system in the collective 

 bargaining agreement must wait an extra day before 

 receiving an identical assignment because the earlier 

 vacancy was filled by a disabled employee pursuant to 

 the ADA, would this entail the "sacrifice" of rights 

 created in other employees under the agreement? . . . 

 [I] think that the ADA's "reasonable accommodation" 

 provisions require us to bear in mind that conflicts 

 between accommodations to disabled employees and 

 the terms of applicable collective bargaining 

 agreements exist on a continuum rather than 

 functioning like an "on/off switch."5 

At 895-96 (citations omitted). 

The approach adopted by the majority in reliance on

Eckles could well lead to absurd results which run counter 

to the broad remedial purposes of the ADA.6 The better 

approach would be to jettison the per se rule developed in 

the context of the far less sweeping Rehabilitation Act in 

favor of the balancing process already in place under the 

ADA in the determination of "undue hardship." The result 

reached in Eckles under the undue hardship balancing 

analysis would likely be unchanged where in this case, the 

outcome would be far less certain. 

For the foregoing reasons, I would reverse the order of 

the district court granting summary judgment in favor of 

the Commission based on the court's conclusion that the 

requested accommodation was per se unreasonable. In all 

other respects, I would affirm the order of the district court. 

_________________________________________________________________ 

5. A similar result was reached in a case decided prior to Eckles, Emrick 

v. Libbey-Owens-Ford Co., 875 F. Supp. 393, 396 (E.D. Tex. 1995). 

6. The academic response to the decision in Eckles has been less than 

enthusiastic. See William Mcdevitt, Seniority Systems and the Americans 

with Disabilities Act: The Fate of Reasonable Accommodation after Eckles, 

9 St. Thomas L. Rev. 359 (1997); Condon A. McGlothlen and Gary N. 

Savine, Eckles v. Consolidated Rail Corp.: Reconciling the ADA with 

Collective Bargaining Agreements: Is This the Correct Approach?; 46 

DePaul L. Rev. 1043 (1997). 

 24 
A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 25