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# Kr ali k v . Durbin

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 97-3089,97-3106

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. e du/thir dc ir c uit_1997/273Filed 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)

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*Honorable Arthur L. Alarcon, Senior Judge of the U nited States Court of Appeals for the Ninth Circuit, sitting by design ation.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 Dece mber 16, 1996 order entering summary judgment against he r under the Rehabilitation Act, 29 U.S.C. S 701 et se q., and the Americans with Disabilities Act ("ADA"), 42 U.S .C. S 12101 et seq., and from the district court's Janu ary 14, 1997 order denying her motion for reconsideration. The appellee, John Durbin, cross appeals from the porti on of the December 16, 1996 order denying summary judgmen t as to one issue even though the order dismissed Kra lik's complaint. We will affirm the orders granting summa ry judgment and denying the motion for reconsideration and will dismiss the cross appeal.

Kralik alleged in her complaint that she is an indi vidual with a disability employed as a toll collector by t he Pennsylvania Turnpike Commission, an instrumentalit y of the Commonwealth of Pennsylvania, at its Allegheny Valley Interchange. Durbin is Executive Director of the

2Commission so as a matter of convenience and realit y we

will refer to him as the "Commission." Kralik asser ted that she suffered a back injury in an automobile acciden t

unrelated to her work. She further asserted that sh e 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 inj uries. The Commission, however, refused to grant the accommodation except on a temporary basis. After th e Commission filed an answer, it moved for summary judgment on the grounds that Kralik is not a qualif ied 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 distric t court
noted that Kralik had worked for the Commission sin ce 1988 as a toll collector and in 1990 had become a permanent Commission employee at the Allegheny Vall ey Interchange. Kralik was in a bargaining unit repres ented by

Teamsters Local Union No. 250. At all relevant time s the union was a party to a collective bargaining agreem ent with the Commission which included the following overtim e provision:

Section 11. In a twenty-four (24) hour oper ation, if the Commission experiences difficulty in obt aining a replacement for any work shift, they will ca ll 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, incl uding any temporary employees in the needed job classi fications, 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 Co llectors who are scheduled to work forty (40) hours o r who

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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 i s no longer in the

case so we make no further reference to it.

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

week are not to be asked to work a vacant sh ift unless all the Temporary Toll Collectors who are no t scheduled to work nor have worked forty (40) hours and all the permanent Toll Collectors have r efused to work the vacant shift. All hours worked by a Temporary Toll Collector will be counted tow ards the forty (40) hours requirement except those ho urs worked which were first offered to and refus ed by all eligible permanent Toll Collectors.

Scheduled work time must be adjusted to com ply

with the above.

A. Consistent with Article IX, in the event that overtime opportunities are refused by all em ployees, the overtime shift shall be assigned to the employee currently working with the least amount of s eniority.
This will be known as a `forced overtime ass ignment'.

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" t o the Commission requesting exemption from forced ove rtime requirements. Kralik subsequently filed a charge wi th the Equal Employment Opportunity Commission ("EEOC") asserting that the Turnpike Commission had violated the ADA in not making an accommodation and that the uni on, Kralik, and the Commission later had entered into a n agreement temporarily excusing her from being force d to work overtime. Then, as the court noted, she filed this action seeking relief under both the ADA and sectio n 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 join t analysis of Kralik's claims.2 The court then explained:

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2. As noted in Lyons v. Legal Aid Soc'y, 68 F.3d 15 12, 1514-15 (2d Cir. 1995), "[t]he Rehabilitation Act . . . prohibits di sability-based discrimination by government agencies and other rec ipients of federal funds . . . ." The ADA has a broader scope as it de fines a "covered entity" as "an employer, employment agency, labor organizat ion, or joint labormanagement committee." 42 U.S.C. S 12111(2). Certai n 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 Rehabilitatio n Act, a

plaintiff can state a claim for discriminati on based upon her employer's failure to accommodate h er handicap by alleging facts showing (1) that the employer is subject to the statute under whi ch the claim is brought, (2) that she is an individ ual with a disability within the meaning of the statute in question, (3) that, with or without reasonable accommo dation, 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 accomm odation.

Slip op. at 6 (quoting Lyons v. Legal Aid Soc'y, 68 F.3d 1512, 1515 (2d Cir. 1995)). For purposes of its sum mary 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 s ummary judgment on the grounds that Kralik was not a quali fied individual with a disability and could not, with or without reasonable accommodation, perform the essential fun ctions of the job as a toll collector.

As the court noted, both the ADA and the Rehabilita tion Act define "disability" as a "physical or mental im pairment that substantially limits" one or more of the major life activities of the individual claiming to have a dis ability. 42 U.S.C. S 12102(2); 29 U.S.C. S 706(26). Major life activities include "functions such as caring for oneself, perf orming 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 f ollows: (1) Kralik did not produce evidence that her abilit y to work, to engage in the major life activities of caring fo r herself or her house, to travel or engage in leisure activitie s, or to twist had been substantially impaired; but (2) ther e was a genuine dispute of fact as to whether Kralik's abil ity 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 individ ual with a disability.

5The court next considered the Commission's alternat e

contention that Kralik's claim could not succeed be cause the requested accommodation, exemption from the for ced overtime provision, was not reasonable. In this reg ard the Commission pointed out that such an exemption could require the Commission to compel an employee with m ore 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 Rehabilitat ion Act and the ADA supporting a conclusion that a meas ure that violates a seniority system established in a c ollective bargaining agreement is not a "reasonable accommoda tion," and thus is not required by the ADA. See Eckles v. Consolidated Rail Corp., 94 F.3d 1041, 1052 (7th Ci r. 1996) (discussed below), cert. denied, 117 S.Ct. 1318 (19 97); Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1 114 (8th Cir. 1995) ("The ADA does not require that Northwes t 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 tha t would violate the rights of other employees. Farmla nd Foods had no obligation to terminate other employee s or violate a collective bargaining agreement in order to accommodate Wooten, even if it perceived him to hav e a substantial impairment.") (citation omitted); Milto n v. Scrivner, Inc., 53 F.3d 1118, 1124-25 (10th Cir. 19 95) ("An employer is not required by the ADA to reallocate j ob 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 req uired.") (citations omitted); Shea v. Tisch, 870 F.2d 786, 7 90 (1st Cir. 1989) ("Consequently, we . . . conclude that t he postal service was not required to accommodate plaintiff f urther by placing him in a different position since to do so would violate the rights of other employees under the col lective bargaining agreement."); Carter v. Tisch, 822 F.2d 465, 467 (4th Cir. 1987) ("Reassigning Carter to permanent l ight duty, when he was not entitled to one of a limited number of light duty positions, might have interfered with the rights

6of other employees under the collective bargaining

agreement.").

The court found that Kralik's requested accommodati on 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 cont ention that the temporary agreement described above amount ed to a concession that the requested accommodation is reasonable. See Shea, 870 F.2d at 789 & n.4 (holdin g that employer was not required to institute permanent accommodation that would violate rights under colle ctive bargaining agreement despite employer's ability to maintain accommodation temporarily without compromising othe r employees' rights). Thus, the court concluded that "regardless of Kralik's ability to establish that o ne or more of her major life activities were substantially lim ited, the requested accommodation is not reasonable, in that it would require the Commission to violate the seniori ty rights of other employees as set forth in the colle ctive bargaining agreement." Consequently, the court gran ted the Commission summary judgment.

Subsequently, Kralik moved for reconsideration contending, as she explains in her brief, that ther e was "an agreement between the Teamsters and the . . . Commi ssion regarding the accommodation of another fare collect or [which] permits assigning [the collector] to a shif t independently of the bidding process required by th e 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 lo ng as the other collector's request is covered by and was reasonable under the ADA, the union would not objec t 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 Kral ik did not explain why she had not produced this evidence earlier.3

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

Kralik "neither relied on the EEOC amicus brief in her earlier brief nor mentioned that the 7th Circuit rejected the argumen t 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.

7Kralik then appealed and the Commission cross appea led.

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 que stion the district court's joint analysis of her ADA and Rehabilitation Act claims. Thus, she does not conte nd that she might be entitled to relief under one act but n ot the other. Consequently, while we will focus our analys is primarily on the ADA, our analysis in this case app lies equally to her Rehabilitation Act claim. The ADA pr ovides that prohibited discrimination includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified indivi dual with a disability." 42 U.S.C. S 12112(b)(5)(A). Inasmuch as the district court held that there was a material dispu te of fact as to whether she was a qualified individual with a disability, Kralik primarily challenges the distric t court's

determination that the Commission did not discrimin ate against her in violation of the ADA by failing to e xempt 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 arra ngement or relationship that has the effect of subjecti ng a covered entity's qualified applicant or employee wit h a disability to the discrimination prohibited by this sub chapter (such relationship includes a relationship w ith an employment or referral agency, labor union, an organization providing fringe benefits to an employee of the covered entity, or an organization provi ding training and apprenticeship programs).

8She 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, 9 0 F.3d 827, 832 (3d Cir. 1996)). She further contends that the Commission's adherence to the forced overtime provi sion in the collective bargaining agreement violates the pl ain language of 42 U.S.C. S 12112(b)(2), and thus of th e Rehabilitation Act, and that the legislative histor y 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 flexib le approach wherein unions and employers "consult and work out an accommodation," br. at 14, and maintains tha t the Commission could accommodate her by excusing her fr om 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 reconsideratio n, 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 ba rgaining agreement. Furthermore, in practice the Commission rarely would need to assign Kralik to forced overtime. Ind eed, at oral argument before this court Kralik indicated th at during the pendency of this litigation the Commission neve r has required her to work forced overtime. She also cont ends 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 reitera te that the accommodation Kralik seeks would require the Commission to violate the collective bargaining agr eement. Nevertheless, we agree with her that the collective bargaining agreement is not necessarily decisive be cause the union and the Commission together may modify th e agreement as they did on a temporary basis by relie ving her from forced overtime. But Kralik points to nothing in the

9record to support a contention that the union has

communicated to the Commission a willingness to wai ve the forced overtime provision with respect to her a s long as she is a qualified individual with a disability. 4 Rather, she refers to a letter to her by the secretary-treasure r of her union stating that "it may be possible to waive[the forced overtime] provision if it can be shown that your in jury qualifies you under the [ADA]." App. at 82-83. Of c ourse, a union waiver of the forced overtime provision would vitiate the Commission's argument that it could not accommo date Kralik without violating the agreement. Unfortunate ly for Kralik, however, the union has not given the Commis sion 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 sen iority rights of other employees in the collective bargain ing agreement?5

On this point we follow Eckles, 94 F.3d 1041, which is a compelling precedent. In that case Eckles, who suff ered from epilepsy, sought from his employer, Conrail, a n accommodation consisting of an assignment to a posi tion 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 colle ctive bargaining agreement. Id. at 1043. Thus, while Conr ail did not contend that the accommodation would place an u ndue burden on it, it argued that the accommodation simp ly was not required "due to its effects on the legitimate seniority rights of other employees." Id. at 1045. Accordingl y, the issue in Eckles was: "whether the ADA requires as
`reasonable accommodation' that a disabled individu al be

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4. In view of the EEOC charge Kralik brought agains t 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 accommodat ion does not place

an undue burden on the Commission because of "the e xistence of provisions [in the collective bargaining agreement] for other workers to voluntarily perform [overtime]." Br. at 7. This obs ervation does not support her case because the forced overtime provis ion by its terms applies only "in the event that overtime opportunit ies are refused by all employees."

10given special job placement ... in violation of a b ona fide

seniority system in place under a collectively barg ained agreement, when such accommodation is the only way of meeting the job restrictions of that disabled indiv idual." Id.

at 1045-46.

The Eckles court pointed out that the case posed "a conflict not so much between the rights of the disa bled 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 Kra lik invokes and which prohibits discrimination brought about through participation in contractual relationships, depended in that case on establishing a violation o f section 12112(b)(5)(A), since the only form of discriminati on alleged there, as here, was the failure to provide a reason able accommodation. Thus, if reasonable accommodation"do es not require reassignment to a position held by anot her employee, the collective bargaining agreement at is sue did not subject Eckles to prohibited discrimination by establishing a bona fide seniority system that regu lates the holding of positions at Conrail." Eckles, 94 F.2d a t 1046.

The court acknowledged that a covered entity cannot avoid its ADA duties by contractual manipulation. B ut
inasmuch as Eckles did not claim that "the seniorit y system was established, even in part, in order to b ypass 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 collectivel y bargained seniority rights be compromised in order to reasonably accommodate a disabled individual, Eckles ca nnot establish that Conrail and the Union are gui lty of participating in a contractual arrangement t hat has the effect of subjecting him to prohibited discr imination. Hence the issue is simply what is required b y `reasonable accommodation.'

Id. at 1046.

The court recognized that although the accommodatio n Eckles sought did not require firing of other emplo yees,

11"what would be lost to the other employees, particu larly

more senior employees, would be some of the value o f their seniority with the company, not their employment." Id. at 1047. The court held that even this limited infring ement on other employees' seniority rights was not reasonabl e under the ADA, and pointed out that:

courts have been unanimous in rejecting the claim that
`reasonable accommodation' under the Rehabil itation Act requires reassignment of a disabled empl oyee in violation of a bona fide seniority system. I n fact, a virtual per se rule has emerged that such re assignment is not required under the Rehabilitation Act 's duty to reasonably accommodate.

Id. (citations omitted). Thus, the Eckles court exp lained that Congress adopted the ADA against "the backdrop of w ellestablished precedent that `reasonable accommodatio n'

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 Eck les court held that "[a]fter examining the text, backgr ound, 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 s eniority rights of other employees." Id. at 1051. While the court recognized "that many of the `reasonable accommodat ions' specifically proposed within the ADA also have effe cts on other workers," it found that "collectively bargain ed seniority rights have a pre-existing special status in the law and that Congress to date has shown no intent to al ter this status by the duties created under the ADA." Id. at 1052.

Eckles is convincing and is in harmony with the oth er precedents we cite above. Thus, we, like the Fifth Circuit Court of Appeals, will follow it. See Foreman v. Ba bcock & Wilcox Co., 117 F.3d 800, 810 (5th Cir. 1997) ("Fol lowing

the other circuits which have considered this issue , we hold that the ADA does not require an employer to take a ction inconsistent with the contractual rights of other w orkers under a collective bargaining agreement.").6 In doi ng so we

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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

12recognize 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 o f infringement on other employees' seniority rights d oes not distinguish adequately this case from Eckles, which recognized the principle at stake here: an accommod ation to one employee which violates the seniority rights of other employees in a collective bargaining agreement simp ly is

not reasonable.

Requiring an employer to violate the collective bar gaining agreement in situations where the employer regards the infringement on seniority rights as insubstantial a nd the accommodation reasonable unfairly would expose the employer to potential union grievances as neither t he union nor the arbitrator hearing a grievance would be req uired to disregard violations of the collective bargaining a greement. Thus, a rule requiring an employer to violate senio rity rights would subject the employer to the cost of de fending itself against grievances as well as to the risk th at it might be subject to a costly remedy. Accordingly, even mi nor 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 d o not know, the union apparently did not agree that the

Commission could relieve Kralik from forced overtim e for the duration of her status as a qualified individua l with a disability. While Kralik seemed to contend at oral argument that the union would agree to such an arrangement i f she

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

Eckles and thus with the result we reach. Aka state d that "in some cases the degree of infringement imposed by a `reasonable accommodation' to one employee's disability on a `right' held by othe r employees under the collective bargaining agreement may be extremely sl ight, and may impose virtually no `hardship' at all," and thus st ated that it would be "inappropriate to draw blanket conclusions regardin g whether the ADA can `trump' provisions in collective bargaining agr eements." Id. at 896. Aka, however, has been vacated and in any event is inconsistent with Eckles, which we find to be soundly reasoned.

13established that she was a qualified individual wit h a

disability who needed the accommodation, as we indi cated above she points to nothing in the record to demons trate that the union ever expressed to the Commission its willingness to extend the temporary agreement we ha ve described.7

What makes the requested accommodation in this case unreasonable is not that it would disrupt the Commi ssion's operations because we cannot say that it would do s o. Rather, the requested accommodation is unreasonable because it would require the employer to violate it s collective bargaining agreement and run the risks t hat the violation entails. Accordingly, we reject Kralik's suggestion that an accommodation which requires an employer to violate a collective bargaining agreement may impos e 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 jus tifiable by releasing the employer from its obligation to fo llow the seniority provisions of the collective bargaining a greement to accommodate a qualified individual with a disabi lity.8

At oral argument before us the Commission suggested that even if the union were willing to waive the fo rced overtime provision with respect to Kralik, because of the Commission's personnel needs it might not be able t o accommodate Kralik by excusing her from forced over time.

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7. According to Kralik the Commission has not appli ed the forced overtime provision to her during this litigation an d yet the union has not instituted a grievance proceeding. While this may b e true, it does not follow that the union will remain willing to refrai n 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 accommod ate 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 operation s may be making no accommodation at all. As the Eckles court recognize d, the accommodation instead will be made by the disabled employee's coworkers who will lose a benefit of their seniority status.

14Obviously we need not explore that claim, which the

Commission apparently did not advance in the distri ct 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 futu re 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 nee ds the

accommodation. Such a waiver would eliminate the ba sis

for our conclusion that the accommodation Kralik se eks is not reasonable, leaving for determination the quest ion of whether Kralik is a qualified individual with a dis ability

who would be entitled to be relieved from forced ov ertime as

a reasonable accommodation.

In light of our conclusions we will affirm the orde r for summary judgment entered December 16, 1996. Moreove r, it is clear that the district court did not abuse i ts discretion in denying the motion for reconsideration, either o n the grounds that the new material Kralik presented coul d not

have affected the outcome of the case in the distri ct court any more than it has here, see Harsco Corp. v. Zlot nicki, 779 F.2d 906, 909 (3d Cir. 1985), or on the separat e grounds that Kralik offered no justification for he r 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 whet her 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 th e district court which it seeks to challenge." Br. at 16. In fact, it even cites cases supporting the principle, namel y Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 333-34, 10 0 S.Ct. 1166, 1171-72 (1980), and Watson v. City of Newark, 746 F.2d 1008, 1010 (3d Cir. 1984). Yet it contends tha t courts "have permitted an appeal from a seemingly favorabl e

15disposition when adverse practical consequences, no t

normally contemplated by legal theory or policy considerations, manifest themselves." Br. at 16. On this point the Commission contends that the denial of su mmary judgment has prejudiced it in an EEOC proceeding, w hich Kralik brought against the Commission and the union after

the district court denied her motion for reconsider ation, alleging retaliation for her having brought this ac tion, and discrimination based on her disability and her sex.

We are satisfied that even if in some cases a compl etely successful party might have standing to appeal, thi s is not such a case. In its partial denial of the Commissio n's motion for summary judgment, the district court mer ely held that at a particular time based on the record before it there was a dispute of fact as to whether Kralik wa s a qualified individual with a disability. While we ce rtainly understand why the Commission would like a ruling t hat Kralik was not a qualified individual with a disabi lity at that time, the district court's inherently tentativ e conclusion, though unhelpful to the Commission, is not harmful to it either, because the conclusion does n ot preclude the Commission from rejecting a new accommodation sought by Kralik or from prevailing i n any challenge to that rejection on the grounds that she is not a qualified individual with a disability.9 The Commi ssion has failed to identify sufficient adverse consequences of the order from which it cross appeals to confer standin g to appeal. See In re DES Litig., 7 F.3d 20, 23-25 (2d Cir. 1993) (dismissing appeal for lack of standing where appel lant prevailed below and was not aggrieved by collateral estoppel effects or other prejudicial effects of determinati on below).

III. CONCLUSION

In view of the aforesaid, we will affirm the orders of December 16, 1996, and January 14, 1997, and will

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9. We do not suggest that we could not have reviewe d the part of the order denying summary judgment had we disagreed wit h the district court's entry of summary judgment on the issues add ressed in this opinion.

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

costs on this appeal.

17MANSMANN, 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 holding finds support in the caselaw, resolution of the issue bef ore us is not as straightforward as the majority opinion sugg ests.

Tension between the ADA and other labor relations statutes, particularly the National Labor Relations Act ("NLRA"), is inevitable. As one commentator observe d:

While the ADA fosters equal employment oppor tunities for all Americans without regard to disabili ty, its drafters ignored a very serious problem. The ADA, while promoting the rights of individual Ame ricans in the workplace, conflicts dramatically with t he[NLRA], an act designed to promote collective rights in the workplace. The ADA, the regulations, and the Interpretive Guidance all fail to address th e issue of how to reasonably accommodate an individual with a disability under the ADA in a unionized sett ing-- where such rights are typically received as part of a collective bargaining agreement. As a result of this oversight, conflicts between the NLRA and th e ADA

have arisen.

Robert W. Pritchard, Avoiding the Inevitable: Resol ving the Conflicts Between the ADA and the NLRA, 11 The Labo r Lawyer 375 (1995). This statutory tension has been particularly apparent where, as here, the duty to p rovide a

reasonable accommodation under the ADA conflicts wi th 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 ot her 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 Right s Act of 1964 (Title VII) specifically authorizes employers" [t]o apply different standards of compensation, or different t erms,

18conditions, 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) con tains an analogous provision: "It shall not be unlawful f or 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 th e competing concerns of reasonable accommodation and the sanctity of the collective bargaining agreement hav e 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 accomm odation' in the ADA was apparently borrowed from the regulat ions issued by the Equal Employment Opportunity Commissi on [EEOC] in implementation of the Rehabilitation Act. . . ." Eckles, 94 F.3d at 1047. In determining whether an

accommodation which conflicts with a collective bar gaining agreement can ever be reasonable, courts construing the Rehabilitation Act have adopted a per se rule: a co llective bargaining agreement will always "trump" the

accommodation.1

Confronted with Congress' failure to articulate def initively a different rule in cases arising under the ADA, a number of our sister courts of appeals have applied or hav e indicated that they would apply this Rehabilitation Act per se rule in reasonable accommodation cases arising u nder the ADA.2 The majority, relying primarily upon the decision

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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 Sta tes 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 p er se rule in the context of the ADA in dicta. Neither analyzed the c onflict between the

ADA and the NLRA.

It is important to note, too, that a number of comm entators have criticized application of a per se rule in the cont ext 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,

19in 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 a pply in

the context of the ADA.

Although the plain text of the ADA does not definit ively resolve the issue before us, it does contain langua ge which suggests that seniority systems, inviolable under t he Rehabilitation Act, might, in certain circumstances , yield to

reasonable accommodation claims. Unlike the Rehabilitation Act and Title VII, the ADA defines t he term "reasonable accommodation" to include: "job restruc turing, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equ ipment

. . . and other similar accommodations for individu als with disabilities." 42 U.S.C. S 12111(9)(B). In a unioni zed workplace, these potential accommodations will almo st always conflict to some degree with established sen iority systems. The ADA, however, indicates that these

accommodations should be made available without addressing their impact on seniority concerns. Whil e this feature of the ADA is not dispositive, it is signif icant, especially when it is considered against the backgr ound 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, t he collective bargaining agreements, including those p rovisions impacting seniority, were not intended to "trump"

reasonable accommodation claims:

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Avoiding the Inevitable: Resolving the Conflicts Be tween the ADA and the NLRA, 11 The Labor Lawyer 375 (1995); Joanne Jocha Ervin, Reasonable Accommodation and the Collective Bargaining Agreeme nt Under the Americans with Disabilities Act, 1991 Det. C. L. Re v. 925 (1991); RoseDaly Rooney, Note, Reconciling Conflicts Between th e Americans with

Disabilities Act and the National Labor Relations A ct 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 Rehabilitatio n Act of 1973 and the Americans with Disabilities Act of 1990 in the Empl oyment Setting, 54 Alb. L. Rev. 123 124-25 (1989).

20The collective bargaining agreement could be relevant

. . . in determining whether a given accommo dation is reasonable. For example, if a collective bar gaining agreement reserves certain jobs for employee s with a given amount of seniority, it may be conside red as a factor in determining whether it is a reason able accommodation to assign an employee with a d isability 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 (1 990), reprinted in 1990 U.S.C.C.A.N. 267, 345 (emphasis a dded). These reports provide sound foundation for the argu ment that Congress intended to depart from the line of a uthority developed under the Rehabilitation Act holding that a requested accommodation is per se unreasonable when it conflicts with a seniority provision in a collectiv e bargaining agreement. The legislative history indicates that c ourts are obligated to look beyond the collective bargaining agreement in order to determine whether a particula r accommodation is reasonable. The status of the coll ective bargaining agreement under the ADA has been diminis hed; it is now only one factor to be considered in deter mining whether a proposed accommodation is reasonable.

Additional evidence for this view of the role of co llective 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 qual ified individual with a disability" constitutes prohibite d discrimination "unless [the employer] can demonstra te 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 prov ide that an employer may demonstrate "that the provisio n of a particular accommodation would be unduly disruptive to its

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4. The Report of the Senate Committee on Labor and Human Resources contains language identical to that of the House Re port. See S.Rep. No. 101-116 at 32 (1989).

21other employees or to the functioning of its busine ss. The

terms of a collective bargaining agreement may be r elevant 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, stat ing that "[t]he terms of a collective bargaining agreement m ay be relevant in determining whether an accommodation wo uld impose an undue hardship." EEOC Technical Assistanc e Manual S 3.09, at III-16 (1992). The example given in the

Manual to illustrate the status of a collective bar gaining 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 conditi on and cannot perform the heavy labor functions of a machinist job, requests reassignment to a va cant clerk's job as a reasonable accommodation. I f 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 colle ctive bargaining agreement were inviolate under the Act, any conflicting proposed accommodation would automatica lly be unreasonable; there would never be a need to con sider whether such an accommodation posed an undue hardship.

The text of the ADA, its legislative history, and t he relevant EEOC regulations convince me that there ar e enough dissimilarities between the Rehabilitation A ct and the ADA to warrant rejection of the per se rule ann ounced by the majority in favor of a fact-intensive approa ch which examines whether a particular proposed accommodatio n constitutes an "undue hardship." This approach, whi ch is consistent with the statute, the legislative histor y, and the

22regulations, protects all parties, including those other

employees subject to the terms of the collective ba rgaining agreement by allowing each accommodation to be exam ined in light of its cumulative impact on the business o peration as a whole. Far from being ignored under this appro ach, the collective bargaining agreement is relegated to its

intended status as a factor to be considered in det ermining 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 H ospital, 116 F.3d 876 (D.C. Cir. 1997), reh'g in banc grante d and judgment vacated, 124 F.3d 1302 (D.C. Cir. 1997), l acks precedential value, I find its analysis and rejecti on of Eckles sound and adopt its reasoning as the essence of my disagreement with the majority:

[I] reject the Eckles court's analysis becau se the plain language of the ADA requires employers to pr ovide accommodations to the disabilities of qualif ied employees unless the accommodation in questi on would be "unreasonable" or would impose an"u ndue hardship," because the suggested "reasonable

accommodations" listed in the statute includ e several . . . that commonly will conflict to some de gree with the applicable collective bargaining agreements in unionized workplaces -- including the portio ns of those agreements creating "seniority rights," and because both the legislative history of the ADA and the relevant EEOC regulations clearly indicate that the f act that a particular accommodation would require some departure from the terms of a collective bar gaining agreement should not in itself determine the question of whether an employer may be required to pr ovide the

accommodation. . . .

* * * *

[I] likewise think it is inappropriate to dr aw blanket conclusions regarding whether the ADA can "t rump" provisions in collective bargaining agreemen ts, or whether the ADA can require the "sacrifice[ ]" of "rights" created in other employees by these agreemen ts. . . .

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

imposed . . . may impose virtually no "hards hip" at all. If one nondisabled employee entitled to a va cant position under the seniority system in the c ollective bargaining agreement must wait an extra day before receiving an identical assignment because th e earlier vacancy was filled by a disabled employee pu rsuant to the ADA, would this entail the "sacrifice" o f rights created in other employees under the agreeme nt? . . . [I] think that the ADA's "reasonable accommo dation" provisions require us to bear in mind that c onflicts between accommodations to disabled employees and the terms of applicable collective bargainin g 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 bet ter approach would be to jettison the per se rule devel oped in the context of the far less sweeping Rehabilitation Act in favor of the balancing process already in place und er the ADA in the determination of "undue hardship." The r esult reached in Eckles under the undue hardship balancin g analysis would likely be unchanged where in this ca se, the

outcome would be far less certain.

For the foregoing reasons, I would reverse the orde r of the district court granting summary judgment in fav or 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 dis trict court.

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5. A similar result was reached in a case decided p rior 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 Syste ms and the Americans

with Disabilities Act: The Fate of Reasonable Accom modation after Eckles, 9 St. Thomas L. Rev. 359 (1997); Condon A. McGlothl en and Gary N. Savine, Eckles v. Consolidated Rail Corp.: Reconcil ing the ADA with Collective Bargaining Agreements: Is This the Corre ct Approach?; 46 DePaul L. Rev. 1043 (1997).

24A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

25