1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-18-1999

Taylor v. Phoenixville Sch. Dist.

Precedential or Non-Precedential:

Docket 98-1273

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Recommended Citation

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Filed August 18, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 98-1273 

KATHERINE L. TAYLOR, 

 Appellant 

v. 

PHOENIXVILLE SCHOOL DISTRICT 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Civil No. 96-cv-08470) 

District Judge: Honorable J. Curtis Joyner 

Argued December 17, 1998 

Opinion filed April 5, 1999 

Panel Rehearing granted on August 18, 1999, vacating 

Opinion filed April 5, 1999 

Before: SLOVITER and COWEN, Circuit Judges and 

RODRIGUEZ,* District Judge 

(Filed August 18, 1999) 

_________________________________________________________________ 

* Honorable Joseph H. Rodriguez, U.S. District Judge for the District of 

New Jersey, sitting by designation. 
 Joseph A. Ryan, Esq. (Argued) 

 13 Paoli Court 

 Paoli, PA 19301 

 Counsel for Appellant 

 Michael I. Levin, Esq. (Argued) 

 Michael I. Levin & Associates 

 1800 Byberry Road 

 1402 Masons Mill Business Park 

 Huntington Valley, PA 19006 

 Counsel for Appellee 

OPINION OF THE COURT 

COWEN, Circuit Judge. 

Katherine Taylor brought suit under the Americans with 

Disabilities Act of 1990 (ADA), 42 U.S.C. S 12101 et seq., 

and the Pennsylvania Human Relations Act (PHRA), 43

Pa.Cons.Stat.Ann. S 951 et seq., alleging that her former 

employer, the Phoenixville School District, failed to provide 

her reasonable accommodations for her mental illness. The 

District Court granted summary judgment for the school 

district, reasoning that Taylor's mental illness, bipolar 

disorder, or manic depression as it is sometimes called, did 

not qualify as a disability under the ADA. Alternatively, the 

District Court held that even if Taylor did have a disability, 

the only accommodation she specifically requested, transfer 

to another position, was not possible, and consequently, 

she was not an otherwise qualified individual with a 

disability. 

In an opinion filed on April 5, 1999, we reversed the 

District Court's order after we concluded that Taylor's 

unmedicated condition demonstrated that she has a 

disability; we also found that she raised genuine factual 

disputes on whether the school district participated in good 

faith in the interactive process required by the ADA. When 

the school district sought rehearing, we held its petition 

until the Supreme Court announced its decisions in two 

 2 
then-pending cases addressing whether disabilities under 

the ADA are judged with or without regard to mitigating 

measures. The Supreme Court has now decided in Sutton v. 

United Airlines, Inc., ___ U.S. ___, 119 S.Ct. 2139 (1999) 

and Murphy v. United Parcel Service, ___ U.S. ___, 119 S.Ct. 

2133 (1999) that whether a plaintiff has a disability under 

42 U.S.C. S 12102(2)(A) must be evaluated taking into 

account any mitigating measures the plaintiff uses.

Based on these decisions, we have granted panel 

rehearing and vacated our prior opinion, which was 

reported at 174 F.3d 142. Applying the new law, we 

conclude that there are genuine factual disputes requiring 

a trial on whether Taylor's bipolar disorder substantially 

limits a major life activity while she is taking lithium. 

Because Sutton and Murphy concerned only the issue of 

when a plaintiff has a disability under the ADA, our 

previous discussion of the interactive process is unaffected; 

therefore, we have incorporated it unchanged in this 

opinion. 

I 

Before she was terminated on October 28, 1994, 

Katherine Taylor had worked for twenty years as the

principal's secretary at the East Pikeland Elementary 

School in the Phoenixville School District. Prior to the fall 

of 1993, Taylor had not received a single disciplinary notice 

from any of the various principals she worked with over the 

years, and when formal evaluations were instituted in the 

1991-92 school year, she received high praise. 

Trouble began after Taylor suffered the onset of bipolar 

disorder in late August of 1993, regrettably during the first 

full week that a new principal, Christine Menzel, assumed 

her duties at East Pikeland. While Taylor was at work 

during that week, she began acting strangely, alarming 

Menzel and Linda Ferrara, the school district's 

administrative assistant for personnel. Menzel and Ferrara 

were so disturbed by Taylor's behavior that they doubted 

her capacity to leave on a train by herself and had someone 

at the school district contact her son, Mark Taylor. He soon 

drove his mother to Coastal Plain Hospital, a psychiatric 

 3 
institution in Rocky Mount, North Carolina, where she was 

admitted as an in-patient on August 31, 1993. 

Hospital records indicate that Taylor had become manic 

and was increasingly agitated and psychotic. According to 

the records, she hid herself at the train station, believing 

that someone was after her, and tried to disguise herself by 

covering her head with a scarf. On the car ride from 

Pennsylvania to the hospital, she was delusional and 

announced that the car was being escorted by state 

troopers and helicopters. She also claimed that her son's 

boss was after him and that there were many people on the 

highway who were "firefighters" trying to protect her. The 

hospital report noted that she did not have any insight into 

the severity of her condition and believed she was being 

admitted due to "acute stress." The school district's own 

expert, Dr. Rieger, agreed that during Taylor's 

hospitalization, she "clearly had paranoid delusions" and 

was hyperactive and psychotic. 

Taylor was treated by two psychiatrists at the hospital 

who diagnosed her illness as bipolar disorder and treated 

her with lithium carbonate and an antipsychotic drug, 

Navane, when lithium alone was insufficient. Once her 

symptoms were brought under control by the combination 

of drugs, she was discharged on September 20, 1993, and 

her care was taken over by Dr. Louise Sonnenberg, a

psychiatrist in Phoenixville, Pennsylvania. Since her 

discharge from the hospital, Taylor has continued to take 

lithium, see Dr. Sonnenberg, and receive the necessary, 

periodic blood tests.1 

_________________________________________________________________ 

1. One widely-used text explains that: "Because lithium has an extremely 

narrow therapeutic range, blood levels of the drug must be closely 

monitored. The occurrence and intensity of side effects are, in most 

cases, directly related to plasma concentrations of lithium. . . . The 

main 

toxic effects involve the gastrointestinal tract, the kidneys, the 

thyroid, 

the cardiovascular system, the skin, and the nervous system." Robert M. 

Julien, A Primer of Drug Action, 8th ed., W.H. Freeman & Co., at 229-30 

(1998). The Physicians' Desk Reference, 53rd ed., Medical Economics 

Co., at 2750 (1999) is in agreement: "Lithium toxicity is closely related 

to serum lithium levels and can occur at doses close to therapeutic 

levels." Both authorities state that when the amount of lithium in the 

 4 
Taylor's son stated in an affidavit that during his

mother's leave of absence, he had numerous phone 

conversations with Ferrara in which he explained that his 

mother would be absent from work because she had been 

diagnosed with bipolar disorder and required 

hospitalization. Mark Taylor also asserted in his affidavit 

that during a phone call on October 8, one week before his 

mother resumed working, he told Ferrara that due to his 

mother's bipolar disorder, she "would require 

accommodations when she returned to work." The affidavit 

adds that he provided Ferrara with the information he 

received from Taylor's doctors "including diagnosis and 

treatment information and medications." Coastal Plain 

Hospital itself sent a letter to the school district on 

September 13, 1993, identifying one of Taylor's physicians 

and providing a phone number to address any additional 

questions the school district might have. 

According to Taylor, Ferrara did eventually contact one of 

her treating physicians. Ferrara's own handwritten notes 

show that she attempted to obtain copies of Taylor's 

records from Coastal Plain Hospital and planned to speak 

to at least one of Taylor's doctors. The school district had 

other contact with her doctors because before Taylor was 

permitted to return to work, the school district required her 

to submit a note from Dr. Sonnenberg saying that Taylor 

was no longer disabled. Even prior to Mark Taylor's October 

8th phone call, Ferrara sent a letter to the school district's 

superintendent, stating that: 

 Mrs. Taylor has been released from the Coastal Plain 

 Hospital in North Carolina and her son will be picking 

_________________________________________________________________ 

blood is near and above the therapeutic range, side effects can include 

nausea, vomiting, abdominal pain, slight tremor, lethargy, impaired 

concentration, dizziness, slurred speech, ataxia, muscle weakness, and 

nystagmus. Julien adds that memory problems and weight gain are also 

frequent complaints with continued treatment. As plasma levels rise 

higher, toxic effects include muscle rigidity, coma, renal failure, 

cardiac 

arrhythmias, and death. Blood levels can fluctuate for a variety of 

reasons. For example, Julien notes that "when a patient lowers his or 

her salt intake or loses excessive amounts of salt (such as through 

sweating), lithium blood levels rise and intoxication may inadvertently 

follow." Id. at 228. 

 5 
 her up this coming weekend to bring her back to 

 Pennsylvania. She will be receiving out-patient care in 

 Phoenixville through the Phoenixville Psychiatric 

 Associates. They will monitor her Blood Lithium[sic] 

 levels. It was stressed that she must maintain and 

 continue her medication. He felt, as well as the doctor, 

 that the first week should be easing her transition back 

 into the work place. 

App. vol. I at 80. 

A notation on the letter indicates that a copy was 

forwarded to Menzel. She submitted an affidavit, however, 

denying that she saw the memo and asserting that"I did 

not learn the specifics of the Plaintiff's alleged condition 

(i.e., bipolar disorder) until after reading a newspaper 

article describing her filing of the current lawsuit." App. vol. 

II at 2. Ferrara has also submitted an affidavit asserting 

that "at no time was I or anyone else at the School District 

aware of Plaintiff's alleged diagnosis of bipolar disorder or 

the details or frequency of any treatments she may have 

been receiving after returning from Coastal Plain until after 

the current lawsuit was filed." App. vol. II at 50.

After Taylor provided the note from Dr. Sonnenberg, she 

resumed work on October 15, 1993 although, as Ferrara's 

letter indicated, Taylor was only authorized to work half 

days for the first week. Prior to her hospitalization, Taylor 

had received high praise for her performance. In June of 

1993, about two months before her hospitalization, the 

outgoing principal, Dr. Herron, wrote that Taylor"excels in 

all aspects" of her job, was a "credit to our school," and "a 

tribute to excellence." App. vol. I at 86. In a subsequent 

letter of recommendation, Dr. Herron again praised her 

performance without reservation: 

 As a secretary, Mrs. Taylor served me and the entire 

 school family exceeding[ly] well. . . . I felt comfortable in 

 leaving the building, sometimes for an extended 

 amount of time, because of Mrs. Taylor's skills. Indeed, 

 at such times, Mrs. Taylor carried on the full functions 

 of the school as if she herself was capable of running 

 the functions of the building without supervision, and, 

 indeed, in such cases, she was entirely capable of 

 doing so. 

 6 
App. vol. I at 87. 

Almost immediately upon Taylor's return to work, 

Menzel, following Ferrara's advice, began documenting 

errors Taylor committed. The errors were then compiled 

into a bullet-format list; the list was presented to Taylor; 

and soon thereafter Menzel and Ferrara would call her into 

a disciplinary meeting and offer her a chance to rebut the 

charges. A representative from Taylor's union also attended 

although it is unclear to what extent the representative 

participated. 

Taylor's first disciplinary notice, dated November 9, 1993, 

listed errors as early as October 19, 1993, only four days 

after she returned to work and while she was still working 

part time. Eight more disciplinary notices followed, dated 

11/23/93, 12/9/93, 1/6/94, 2/1/94, 3/11/94, 4/22/94, 

9/2/94, and 10/27/94, the last arriving shortly before she 

was terminated. Over the course of the disciplinary

meetings, Taylor disputed some charges and tried to

explain others, but as 1994 wore on, Menzel documented 

many errors that she did not contest, and the interpersonal 

friction between Menzel and Taylor continued unabated. 

Disciplinary notices during this period list problems such 

as missed deadlines, mishandling of records, typing errors, 

interpersonal conflicts, and undelivered messages. 

Part of Taylor's complaint about her treatment is that 

Menzel often did not speak to her informally and in-person 

about problems as they arose. Instead, Taylor alleges that 

Menzel documented every misstep, saved letters containing 

typos, photographed her desk and trash can, as well as the 

inside of the office refrigerator, and waited to confront her 

with the evidence in the disciplinary meetings. 

Taylor also objects that the school district made her job 

more difficult upon her return from the hospital. First, 

during her absence, Menzel instituted a number of changes 

in the office: she introduced new office policies, created new 

forms, relocated documents, rearranged furniture, threw 

out Taylor's old filing system, and discardedfiles, including 

some in Taylor's desk. Taylor claims that these changes 

were disorienting and made it much more difficult to 

accomplish tasks she could easily perform before the 

 7 
hospitalization. Of course, Taylor's absence coincided with 

the first weeks Menzel served as principal, and thus 

changes were inevitable and part of Menzel's prerogative as 

a new principal. The gravamen of Taylor's complaint, 

however, focuses on the abrupt, seemingly hostile manner 

in which the changes were made. 

Compounding Taylor's difficulties, a new computer 

system was introduced to keep track of student records and 

other data. The school district points out that plans to 

introduce the computers had been underway prior to her 

hospitalization, and according to an affidavit submitted by 

a school-district employee, Taylor had more difficulty than 

the other secretaries at a training session conducted in 

July of 1993. Taylor does not appear to dispute that the 

school district was entitled to switch to computers; rather, 

the thrust of her objection seems to be that the school 

district raised another hurdle by the manner in which the 

new system was introduced when she returned from her 

hospitalization. 

Taylor claims that her job was made more difficult in 

another, more straightforward way: following her return, 

her job description was changed, increasing the number of 

her job responsibilities from 23 to 42. It is not clear from 

the record when these changes were made, how substantial 

they were, or to what extent the new list simply enumerated 

in greater detail duties she already performed, but reading 

the evidence in the light most favorable to Taylor, there is 

reason to believe that the new list added significant 

responsibilities and made her return more difficult. 

On September 2, 1994 Taylor received a notice placing 

her on probation for 30 days and informing her that if her 

performance did not improve, she would be terminated. She 

was in fact discharged on October 28, 1994 although her 

union representative subsequently negotiated with the 

school district to allow her to "retire" and receive some 

retirement benefits. Since her termination, Taylor has 

applied at different times for unemployment benefits and 

disability benefits. 

II 

The District Court had subject matter jurisdiction over 

Taylor's ADA claim pursuant to 28 U.S.C. S 1331 and

 8 
supplemental jurisdiction over her state-law claim pursuant 

to 28 U.S.C. S 1367. We have appellate jurisdiction

pursuant to 28 U.S.C. S 1291. Our review of a district 

court's grant of summary judgment is plenary. Olson v. 

General Electric Astrospace, 101 F.3d 947, 951 (3d Cir. 

1996). In evaluating the school district's motion for 

summary judgment, we must determine whether there are 

any genuine disputes of material fact, and if not, then 

viewing the evidence in the light most favorable to the 

plaintiff, we must decide whether the school district was 

entitled to judgment as a matter of law. See Fed.R.Civ.P. 

56; Celotex Corporation v. Catrett, 477 U.S. 317, 322-23, 

106 S.Ct. 2548, 2552-53 (1986); Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2510-11

(1986). 

III 

A. Basic statutory framework 

Under the ADA, employers are prohibited from 

discriminating "against a qualified individual with a 

disability because of the disability of such individual in 

regard to job application procedures, the hiring, 

advancement, or discharge of employees, employee 

compensation, job training, and other terms, conditions, 

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

"qualified individual with a disability" is defined by the ADA 

as a person "with a disability who, with or without

reasonable accommodation, can perform the essential

functions of the employment position that such individual 

holds or desires." 42 U.S.C. S 12111(8). A"disability" is 

defined as: "(A) a physical or mental impairment that 

substantially limits one or more of the major life activities 

of [an] individual; (B) a record of such impairment; or (C) 

being regarded as having such an impairment." 42 U.S.C. 

S 12102(2). 

In view of the foregoing definitions, we have held that in 

order for a plaintiff to establish a prima facie case of 

discrimination under the ADA, the plaintiff must show: "(1) 

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

he is otherwise qualified to perform the essential functions 

 9 
of the job, with or without reasonable accommodations by 

the employer; and (3) he has suffered an otherwise adverse 

employment decision as a result of discrimination." Gaul v. 

Lucent Technologies, 134 F.3d 576, 580 (3d Cir. 1998) 

(citing Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996)). 

Discrimination under the ADA encompasses not only 

adverse actions motivated by prejudice and fear of 

disabilities, but also includes failing to make reasonable 

accommodations for a plaintiff's disabilities. The ADA 

specifies that an employer discriminates against a qualified 

individual with a disability when the employer does "not 

mak[e] reasonable accommodations to the known physical 

or mental limitations of the individual unless the[employer] 

can demonstrate that the accommodation would impose an 

undue hardship on the operation of the business of the 

[employer]." 42 U.S.C. S 12112(b)(5)(A). 

Before turning to the first issue, whether Taylor has a 

disability under the ADA, we mention that we will only 

discuss Taylor's ADA claim because our analysis of an ADA 

claim applies equally to a PHRA claim. Kelly v. Drexel 

University, 94 F.3d 102, 105 (3d Cir. 1996). 

B. Does Taylor have a disability under the ADA? 

According to the statutory language quoted above, Taylor 

can establish that she has a disability if she has a mental 

impairment that substantially limits a major life activity, 

has a record of such an impairment, or is regarded as 

having such an impairment. 42 U.S.C. S 12102(2). Taylor 

argues that she can satisfy each of these standards, but 

because we conclude that she raises genuine factual

disputes about whether her bipolar disorder substantially 

limits a major life activity, we need not reach her

arguments on the second and third definitions of a disability.2 

_________________________________________________________________ 

2. The parties' briefing on appeal has focused heavily on the first 

standard -- does Taylor have an impairment that substantially limits a 

major life activity? What discussion there was of the second and third 

standards for having a disability did not address whether a plaintiff who 

relies exclusively on either the "regarded as" standard or the "record of 

a substantially limiting impairment" standard is legally entitled to 

reasonable accommodations. 

 10 
No one disputes that bipolar disorder counts as a mental 

impairment under the ADA; the contested issue is whether 

Taylor's bipolar disorder substantially limits a major life 

activity. In determining whether a plaintiff's impairment 

substantially limits a major life activity, the Supreme Court 

has stressed that courts should "determine the existence of 

disabilities on a case-by-case basis." Albertsons, Inc. v. 

Kirkingburg, ___ U.S. ___, 119 S.Ct. 2162, 2169 (1999). To 

make that individualized assessment, we must begin by 

identifying the specific life activity or life activities that 

Taylor says her disorder affected and then evaluate whether 

her condition "substantially limits" those life activities. 

When Taylor relied upon our prior holding that 

disabilities are judged in their untreated state, she 

contended that while she was hospitalized, her bipolar 

disorder affected a number of her major life activities, such 

as the ability to think and care for herself. Following the 

decisions in Sutton and Murphy, which require courts to 

evaluate disabilities in their treated condition, Taylor 

submitted supplemental briefing that shifted the emphasis 

to her ability to think. 

We accept that thinking is a major life activity. We have 

previously observed that "[t]he ADA does not define `major 

life activities,' " Kelly, 94 F.3d at 105 (citation omitted), but 

despite the comparative lack of guidance in the statute, we 

conclude that it is reasonable to include thinking as a 

_________________________________________________________________ 

We have previously identified, without deciding, the issue of whether 

a "regarded as" plaintiff is entitled to accommodations. See Taylor v. 

Pathmark Stores, Inc., 177 F.3d 180, 195-96 (3d Cir. 1999); Deane v. 

Pocono Medical Center, 142 F.3d 138, 140-41 (3d Cir. 1998)(en banc). 

Although those cases addressed the "regarded as" standard, the "record 

of an impairment" standard may raise similar considerations. 

We need not resolve these difficult issues in our present decision. 

Given that we have other grounds for reversal, intervening law has 

affected the "regarded as" standard, and important issues were left 

unaddressed by the parties, we will allow the parties to pursue on 

remand whether Taylor is regarded as disabled or has a record of a 

substantially limiting impairment and, if so, whether she would be 

entitled to reasonable accommodations under either of those standards. 

 11 
major life activity. We hardly need to point out that 

thinking is inescapably central to anyone's life. Perhaps the 

activity is rather broad, but given the difficulty of specifying 

the different constituents of thinking or otherwise

narrowing this central activity (especially when discussing 

the effects of psychosis or its subclinical manifestations), 

we will not try to constrict Taylor's arguments about how 

her condition affects her ability to think. We think that 

most objections about the broadness of thinking as a life 

activity can be captured in the analysis of when the activity 

is substantially limited. 

The Supreme Court has said, "The ADA does not define 

`substantially limits,' but `substantially' suggests 

`considerable' or `specified to a large degree.' " Sutton, 119 

S.Ct. at 2150. But while substantial limitations should be 

considerable, they also should not be equated with"utter 

inabilities." Kirkingburg, 119 S.Ct. at 2168 (quoting Bragdon 

v. Abbott, 524 U.S. 624, 641, 118 S.Ct. 2196 (1998)). 

The EEOC's regulations define "substantially limits" as 

follows: "(i) Unable to perform a major life activity that the 

average person in the general population can perform; or (ii) 

Significantly restricted as to the condition, manner or 

duration under which an individual can perform a 

particular major life activity as compared to the condition, 

manner, or duration under which the average person in the 

general population can perform that same major life

activity." 29 C.F.R. S 1630.2(j)(1). The regulations include 

the following factors for evaluating when someone is 

substantially limited in a major life activity:"(1) The nature 

and severity of the impairment; (ii) The duration or 

expected duration of the impairment; and (iii) The 

permanent or long term impact, or the expected permanent 

or long term impact of or resulting from the impairment." 

29 C.F.R. S 1630.2(j)(2). 

The Supreme Court left unresolved in Sutton what 

deference, if any, these regulations are due. The Court 

stated that even though the EEOC is charged with issuing 

regulations for the employment provisions under Title I of 

the ADA, "[n]o agency, however, has been given authority to 

issue regulations implementing the generally applicable 

provisions of the ADA, see SS 12101-12102, which fall 

 12 
outside Titles I-V." Sutton, 119 S.Ct. at 2145. The Court 

concluded that it did not have to resolve the issue of 

deference because the parties in Sutton did not contest the 

validity of the regulations, including 29 C.F.R.S 1630.2(j), 

that interpret the generally applicable provisions. Id. 

Because we have previously applied 29 C.F.R. S 1630.2(j), 

see, e.g., Kelly, 94 F.3d at 105, we will follow it here as 

well. 

When Taylor had to be confined to a hospital because she 

was psychotic, increasingly agitated, and gripped by 

delusions, the limitations on her ability to think were 

severe: She suffered paranoid delusions that people were 

trying to kill her, inducing her to disguise herself at the 

train station. During the car ride to the hospital, she 

thought her son's life was in danger, believed that the 

highway patrol was escorting her, and thought the highway 

was filled with "firefighters" there to protect her. Unable to 

recognize that these beliefs were baseless, she explained at 

the time of her admission that she was there for"acute 

stress." 

Both the school district's expert and Taylor's treating 

physician agreed that Taylor has bipolar disorder and that 

the condition is chronic. Dr. Rieger, the school district's 

expert, added, "There is no doubt in my mind that Ms. 

Taylor experienced a biologic psychiatric illness in which 

genetic factors play a role. These illnesses can appear even 

fairly late in life regardless of life events and stressors. . ." 

App. vol. I at 157. Dr. Sonnenberg, Taylor's treating 

physician, confirmed that Taylor has an ongoing condition 

that requires her to stay on lithium,3 and according to Dr. 

_________________________________________________________________ 

3. The District Court evidently refused to consider Dr. Sonnenberg's 

opinion because the Court said, citing Gaul v. AT&T, Inc., 955 F. Supp. 

346 (D.N.J. 1997), Taylor could not rely on the opinion of her own 

treating physician. But Gaul stated that"[i]t is well settled that 

treating 

physicians may testify as to any subject relevant to the evaluation and 

treatment of their patients." Id. at 349. At issue in Gaul was whether 

testimony by the plaintiff's treating physician satisfied the New Jersey 

Supreme Court's holding that "expert medical testimony is required to 

establish the fact of the employee's [handicap]." Id. (quoting Clowes v. 

Terminex International, Inc., 109 N.J. 575, 597 (1988)). Just as the 

District Court in Gaul deemed admissible the opinion of a plaintiff's 

treating physician, we hold that a plaintiff in an ADA case can rely on 

the testimony of his or her treating physician to demonstrate that the 

plaintiff has a disability. 

 13 
Rieger's report, Taylor has continued to take 300 mgs. of 

lithium twice a day. In short, Taylor's impairment is not 

temporary,4 and it is clear that at the time of her

hospitalization, her impairment was substantially limiting. 

But the central question, in light of Sutton and Murphy, is 

whether Taylor's continuing impairment remained a 

"disability" under the ADA by imposing substantial 

limitations even while treated. Specifically, Taylor must 

show that she was substantially limited during the year 

following her hospitalization, the time span when she says 

that she was denied reasonable accommodations. 

Taylor maintains that even though lithium has improved 

her condition and has reduced the risk of full-blown 

psychotic episodes, the drug has not perfectly controlled 

her symptoms, leaving her still substantially limited in her 

ability to think. She argues that Dr. Sonnenberg's notes 

indicated that she continued to suffer symptoms of her 

disorder, including paranoia. On November 9, 1994, a 

couple of months after Taylor started taking lithium, Dr. 

Sonnenberg wrote a short note to the school district, 

explaining that Taylor was temporarily unable to work. 

Taylor's claims of uncontrolled, ongoing symptoms are 

corroborated by a number of other sources as well. Lithium 

has a very narrow therapeutic range, and blood levels of the 

drug can fluctuate for a variety of reasons. See supra, at 

n.1. Throughout the 1993-94 school year following her 

hospitalization, she experienced enough difficulty that she 

saw Dr. Sonnenberg twenty-five times even though Taylor, 

who earned a secretary's salary, cares for a disabled child, 

and is divorced, had to pay the $120 fee out of pocket and 

was reimbursed only half the cost by her insurance. One 

can infer that she would not have undertaken such expense 

without experiencing serious difficulty. Taylor also points 

out that prior to her hospitalization, she had received high 

praise for her work performance, but after the onset of her 

illness, she encountered a number of problems, as the 

school district's records document. Therapeutic levels of 

_________________________________________________________________ 

4. See, e.g., Diagnostic and Statistical Manual of Mental Disorders, 4th 

Ed., American Psychiatric Association, at 353 (1994); Frederick Goodwin 

and Kay Redfield Jamison, Manic-Depressive Illness, Oxford University 

Press, ch. 23 (1990); Julien, supra, n.1 at 232. 

 14 
lithium can cause a number of side effects. See supra, at 

n.1. Some of these effects, like the nausea Taylor 

complained of, may bear indirectly on the ability to think, 

while other side effects, such as impaired concentration 

and memory problems, bear directly on thinking. Taylor's 

problems at work may have been related to these drug side 

effects, and the Supreme Court has noted that drug side 

effects can be important in evaluating whether someone is 

disabled. Sutton, 119 S.Ct. at 2147. 

Given our prior holding in Matczak v. Frankford Candy & 

Chocolate Co., 136 F.3d 933 (3d Cir. 1997), Taylor not 

surprisingly focused on her untreated condition when she 

accumulated evidence to demonstrate that she had a 

disability, and as a consequence, the record is not as fully 

developed as it might be. Nevertheless, we believe that she 

has presented sufficient evidence to require a trial on 

whether she continued to be substantially limited even 

while receiving treatment. 

Although Taylor clearly was disabled at the time she was 

hospitalized, she need not prove that she continued to 

experience symptoms of that magnitude: paranoia and

distorted mood can have a "substantial" or"considerable" 

impact on Taylor's thinking well before they force 

hospitalization. Substantial limitations need not rise to the 

level of the "utter inabilities" Taylor experienced at the time 

of her hospitalization. When we consider the nature and 

severity of the impairment, its duration, and its expected 

long-term impact, see 29 C.F.R. S 1630.2(j)(2), we find 

evidence that Taylor has had to contend with a serious, 

very much ongoing condition. Following the initial severe 

episode, she again had to leave work just a few months 

later; she sought treatment twenty-five times throughout 

the year; and every day throughout this period she took 

medication requiring careful monitoring. That she may not 

have experienced problems every day does not defeat her 

claim. Chronic, episodic conditions can easily limit how well 

a person performs an activity as compared to the rest of the 

population: repeated flare-ups of poor health can have a 

cumulative weight that wears down a person's resolve and 

continually breaks apart longer-term projects. 

 15 
The school district argues vehemently that Taylor is not 

disabled and points to the report of its expert. After 

conducting an office visit with Taylor on June 24, 1997, Dr. 

Rieger concluded: "When I examined Ms. Taylor[,] she had 

a normal mental state. Her chronic biological psychiatric 

illness was obviously well controlled by medication. If she 

continues to take her medications as instructed[,] she will 

be able to work. She is now not at all disabled from a 

psychiatric point of view." App. vol. I at 159. 

We do not think Dr. Rieger's report is sufficient to grant 

summary judgment in the school district's favor. Taylor has 

presented evidence that she is disabled, and on summary 

judgment we read the evidence in the light most favorable 

to the nonmoving party and resolve genuine factual 

disputes in favor of the nonmoving party. See Fed.R.Civ.P. 

56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 

106 S.Ct. 2505, 2510-11 (1986). Dr. Rieger's report also 

has a number of problems that could lead a reasonable jury 

to reject it. The passage quoted above, for example, says 

that Taylor is not presently, on June 24, 1997, exhibiting 

the symptoms of her disorder. That statement does not 

resolve what Taylor's condition was like between the fall of 

1993 and the fall of 1994. Taylor may have gained better 

control over her condition by the time roughly four years 

had passed from the onset of her disorder. 

Another shortcoming of Dr. Rieger's report is that it is 

based on one office visit. A jury could question whether he 

relied on too slender a base of experience observing Taylor's 

condition. It is true that the doctor was able to review a 

number of documents, including Taylor's disciplinary 

reports from the school district and the reports from 

Coastal Plain Hospital, but these reports may not have 

given a very full or accurate picture of the range of 

symptoms Taylor experienced while on medication. 

We think it is significant that Taylor had difficulty 

recognizing and expressing the symptoms of her condition. 

Not only did she believe at the time of her hospitalization 

that she was merely suffering from "acute stress," but this 

difficulty seemed to continue. Dr. Rieger's own report 

reveals this problem. When he asked Taylor to describe the 

 16 
events leading up to her hospitalization, she related that 

Ferrara told her "she needed some rest." App. vol. I at 150. 

 Upon my question Ms. Taylor revealed what prompted 

 this recommendation: "I was telling [Ferrara] about a 

 person who was employed by the district. I remarked 

 that the person was dead -- strike that -- was injured. 

 I had passed an ambulance. That person was on my 

 mind. It was a strange remark that wasn't true." Upon 

 my question Ms. Taylor agreed that in retrospect what 

 she just told me sounded like a delusion. She 

 immediately continued her story: "I had planned to 

 take time off. I had Amtrak tickets to see my mother in 

 Rocky Mount, North Carolina. I didn't get there. The 

 train was canceled because of a hurricane. My son 

 took me there by car. My brother made arrangements 

 for me to go to the Coastal Plains Hospital." Upon my 

 question she confirmed that the entire trip was 

 planned so that she could go to a psychiatric hospital 

 near her relatives. She could not recall what specific 

 delusions she voiced upon entering the hospital. She 

 recalled that she gave the doctors lots of information, 

 that she was "very talkative" although very tired. 

 [Elsewhere the report quotes Taylor as saying"some 

 nights I got only 3 to 4 hours of sleep."] Upon my 

 question she admitted that she may have been

 euphoric. 

Id. One would expect a plaintiff to inflate the severity of her 

condition when talking to opposing counsel's expert. Taylor 

instead made her hospitalization sound like a simple trip to 

visit her mother and had obvious difficulty conveying the 

extent of her illness. We should not insist that all plaintiffs 

with bipolar disorder must have the self-awareness and 

expressive powers of a Robert Lowell (who had the illness) 

before we allow that their condition is substantially 

limiting. 

After reviewing the school district's records, Dr. Rieger 

did express the opinion that Taylor's "misconduct was 

solely due to her basic personality," and "[w]hatever 

subjective difficulties she experienced during her last year 

of employment were not due to her mental illness but due 

to her peculiar personality traits. . . ." Id. at 158 and 156. In 

 17 
a similar vein, he asserted that people with bipolar disorder 

can "fulfill all their work duties to the full satisfaction of 

their superiors without engaging in misconduct and 

without requiring any accommodations." Id. at 159. 

A reasonable jury could question the doctor's conclusion 

that all of Taylor's problems at work were due solely to her 

"peculiar personality traits" and not to her mental illness. 

Taylor had performed very well at work prior to the onset of 

her illness; only after she became psychotic and was 

hospitalized did problems appear. Thus, a reasonable jury 

could find it surprising that the peculiar personality traits 

only manifested themselves after she became ill. It also is 

not clear that the doctor was in a position to judge when 

Taylor had engaged in "misconduct" at work; a reasonable 

jury could question any uncritical reliance on the school 

district's own reports about Taylor. 

Another reason that the school district denies that Taylor 

is disabled is that before the school district allowed Taylor 

to return to her job, she was required to submit a note from 

her doctor saying that she was able to work. Dr. 

Sonnenberg responded to this requirement by sending a 

one sentence message saying that Taylor "is able to return 

to work and is not disabled." Supp. App. at 1. The school 

district argues that since the doctor said that Taylor was 

"not disabled," Taylor must have been symptom free.

But the doctor's remark appears to be simply another 

way of saying that Taylor was capable of working. It is 

hardly conclusive proof that Taylor was not substantially 

limited. That Dr. Sonnenberg used "disabled" as the

equivalent of "able to work" is supported by her earlier note 

in November that said Taylor "is temporarily disabled and 

not able to work at this time." App. vol. I at 77. While the 

doctor's use of the term "disabled" is not unusual,

especially in the context of disability insurance, it is not an 

accurate definition for the purposes of the ADA. To say that 

no one is disabled under the ADA unless the person is 

unable to work would render all the provisions in the ADA 

governing reasonable accommodations at work entirely 

empty of meaning. If there has ever been a legal term of art, 

"disabled" certainly qualifies. And the Supreme Court 

recently rejected glib estoppel arguments that turn on the 

 18 
different meanings carried by the term "disability." 

Cleveland v. Policy Management Systems Corp., ___ U.S. 

___, 119 S.Ct. 1597 (1999). 

C. Reasonable accommodations 

Having concluded that there are genuine factual disputes 

about whether Taylor has a disability under 42 U.S.C. 

S 12102(2)(A), we must consider whether the school district 

failed to provide reasonable accommodations. On this issue, 

we find that the District Court applied the wrong legal 

standards and that under the correct standard, disputes of 

material fact remain, requiring remand. 

As stated above, an employer commits unlawful 

discrimination under the ADA if the employer does"not 

mak[e] reasonable accommodations to the known physical 

or mental limitations of an otherwise qualified individual 

with a disability who is an applicant or employee, unless 

[the employer] can demonstrate that the accommodation 

would impose an undue hardship on the operation of the 

business of [the employer]." 42 U.S.C. S 12112(b)(5)(A). 

In evaluating whether a plaintiff is a "qualified individual 

with a disability," we have held that a plaintiff must 

"satisf[y] the prerequisites for the position, such as 

possessing the appropriate educational background, 

employment experience, skills, licenses, etc." and, the 

plaintiff must be able to "perform the essential functions of 

the position held or desired, with or without reasonable 

accommodations." Gaul, 134 F.3d at 580 (quoting 29 C.F.R. 

Pt. 1630, App. S 1630.2(m) at 351). Because Taylor held her 

position as secretary to the principal for many years, 

receiving high praise, there is no serious dispute that she 

satisfies the prerequisites for the position. The critical issue 

is whether Taylor could, with reasonable accommodations, 

perform the essential functions of her job following her 

return from her hospitalization. 

The Interactive Process 

The ADA's regulations state that: "To determine the

appropriate reasonable accommodation it may be necessary 

for the [employer] to initiate an informal, interactive process 

 19 
with the [employee] in need of accommodation. This process 

should identify the precise limitations resulting from the 

disability and the potential reasonable accommodations 

that could overcome those limitations." 29 C.F.R. 

S 1630.2(o)(3). Similarly, the EEOC's interpretive guidelines 

provide that: "Once a qualified individual with a disability 

has requested provision of a reasonable accommodation, 

the employer must make a reasonable effort to determine 

the appropriate accommodation. The appropriate 

reasonable accommodation is best determined through a 

flexible, interactive process that involves both the employer 

and the [employee] with a disability." 29 C.F.R. Pt. 1630, 

App. S 1630.9 at 359. 

We have previously recognized both this regulation and 

the EEOC's interpretive guideline and applied them to a 

claim brought under the Rehabilitation Act, 29 U.S.C. 

S 701, et seq. Mengine v. Runyon, 114 F.3d 415, 419-20 (3d 

Cir. 1997); see also Deane v. Pocono Medical Center, 142 

F.3d 138, 149 (3d Cir. 1998)(en banc).5 Based on the 

regulation and interpretive guidelines, we held in Mengine 

that "both parties have a duty to assist in the search for 

appropriate reasonable accommodation and to act in good 

faith." Id. We noted that other circuits have taken this view. 

See, e.g., Beck v. University of Wisconsin Bd. of Regents, 75 

F.3d 1130, 1135 (7th Cir. 1996)("A party that obstructs or 

delays the interactive process is not acting in good faith. A 

party that fails to communicate, by way of initiation or 

response, may also be acting in bad faith."); Taylor v. 

Principal Financial Group, Inc., 93 F.3d 155, 165 (5th Cir. 

1996)(The "employee's initial request for an 

accommodation... triggers the employer's obligation to 

participate in the interactive process..."). 

In Bultemeyer v. Fort Wayne Community Schools , 100

F.3d 1281 (7th Cir. 1996) an employee diagnosed with 

paranoid schizophrenia and bipolar disorder sought to 

_________________________________________________________________ 

5. While Mengine involved a claim under the Rehabilitation Act, the 

regulation and interpretive guidelines applied in the case were from the 

ADA. Furthermore, according to 42 U.S.C. S 12201(a), the ADA should 

not be construed to apply a lesser standard than the Rehabilitation Act. 

See also Bragdon v. Abbott, 118 S.Ct. 2196, 2202 (1998). 

 20 
return from an extended disability leave to his job as a 

custodian. His employer informed him that he would be 

reassigned to the largest school operated by Fort Wayne 

Community Schools, and added that he would not receive 

any special accommodation. The employer then instructed 

the plaintiff to take a physical and report to work or else he 

would be terminated. After touring the new school with the 

custodial foreman, the plaintiff told his employer that he 

did not think he was equal to the task but said he was not 

resigning. The plaintiff subsequently failed to take the 

physical or report to work although he did have his

psychiatrist send a letter to the employer which stated that 

due to the plaintiff's illness, it would be in the plaintiff's 

best interest to work at a less stressful school. The 

employer never responded and terminated the plaintiff. The 

Seventh Circuit, reversing summary judgment for the

employer, concluded that there was a genuine dispute as to 

whether the employer engaged in the interactive process of 

seeking accommodations. 

We agree with the Seventh Circuit which held that: 

 An employee's request for reasonable accommodation 

 requires a great deal of communication between the 

 employee and employer... [B]oth parties bear

 responsibility for determining what accommodation is 

 necessary... `[N]either party should be able to cause a 

 breakdown in the process for the purpose of either 

 avoiding or inflicting liability. Rather, courts should 

 look for signs of failure to participate in good faith or 

 failure by one of the parties to help the other party 

 determine what specific accommodations are 

 necessary. A party that obstructs or delays the 

 interactive process is not acting in good faith. A party 

 that fails to communicate, by way of initiation or 

 response, may also be acting in bad faith. In essence, 

 courts should attempt to isolate the cause of the 

 breakdown and then assign responsibility.' 

Bultemeyer, 100 F.3d at 1285 (quoting Beck, 75 F.3d at 

1135). 

Our analysis of the interactive process in the present 

case is divided into two steps: first, we will clarify what 

 21 
notice must be given to the employer to trigger the

employer's obligations under the interactive process, and 

second, we will elaborate on the employee's and the

employer's duties once the interactive process comes into 

play. 

1. Notice of the disability and request for accommodation 

The first question we must address is who must make

the request for accommodation and what form that request 

must take. The EEOC compliance manual provides that"a 

family member, friend, health professional, or other 

representative may request a reasonable accommodation on 

behalf of an individual with a disability."2 EEOC 

Compliance Manual, Enforcement Guidance for Psychiatric 

Disabilities, at 20-21. Likewise, in Bultemeyer the Seventh 

Circuit allowed that an employee's psychiatrist could make 

a request for accommodations on behalf of an employee. 

Bultemeyer, 100 F.3d at 1286. In our case, therefore, 

Taylor's son could make the initial request for 

accommodations. 

The EEOC's manual further provides that "[r]equests for 

reasonable accommodations do not need to be in writing," 

2 EEOC Compliance Manual, Enforcement Guidance for 

Psychiatric Disabilities, at 21, and "[t]o request 

accommodation, an individual may use `plain English' and 

need not mention the ADA or use the phrase `reasonable 

accommodation.' " Id. at 19. The Seventh Circuit said that 

"properly participating in the interactive process means 

that an employer cannot expect an employee to read its 

mind and know that he or she must specifically say`I want 

reasonable accommodation,' particularly when the 

employee has a mental illness." Bultemeyer, 100 F.3d at 

1286. 

The EEOC's manual makes clear, however, that while the 

notice does not have to be in writing, be made by the 

employee, or formally invoke the magic words "reasonable 

accommodation," the notice nonetheless must make clear 

that the employee wants assistance for his or her disability. 

In other words, the employer must know of both the 

disability and the employee's desire for accommodations for 

that disability. 

 22 
These rules are consistent with the statute which says 

that the employer must make reasonable accommodations 

to an employee's "known" disability. 42 U.S.C. 

S 12112(b)(5)(A). What matters under the ADA are not 

formalisms about the manner of the request, but whether 

the employee or a representative for the employee provides 

the employer with enough information that, under the 

circumstances, the employer can be fairly said to know of 

both the disability and desire for an accommodation. 

What information the employee's initial notice must

include depends on what the employer knows. In Taylor v. 

Principal Financial Group, Inc., 93 F.3d 155 (5th Cir. 1996), 

an employee whose job performance had fallen off 

mentioned to his employer that he was diagnosed with 

bipolar disorder. Nothing the employee had done suggested 

the nature of his illness. When the employer, who said he 

did not know about the illness, asked the employee if he 

was okay, the employee responded that he was. The 

employee never offered further information about his 

disorder and, even more significantly, could not confirm 

that he ever explicitly asked for an accommodation or help 

of any sort. Under these circumstances, the employee has 

not given sufficient notice to trigger the employer's duty to 

engage in the interactive process. Cf. Crandall v. Paralyzed 

Veterans of America, 146 F.3d 894 (D.C. Cir. 

1998)(Employee with bipolar disorder could not state a 

claim under the Rehabilitation Act when he never told his 

employer of his mental illness and never requested 

accommodations.). Employers cannot assume employees

are disabled and need accommodations. 

Our case differs markedly. It is undisputed that Taylor 

became psychotic at work, that the school district knew she 

was hospitalized immediately thereafter, and that Coastal 

Plain Hospital contacted the school district by letter about 

Taylor's hospitalization and provided a phone number to 

answer questions. It is also undisputed that Ferrara wrote 

a note saying she planned to contact Taylor's doctors and 

that she wrote a letter to the superintendent, stating that 

"Phoenixville Psychiatric Associates... will monitor [Taylor's] 

Blood Lithium [sic] levels. It was stressed that she must 

maintain and continue her medication." The school district 

 23 
also does not deny that it required Taylor to submit a note 

from Dr. Sonnenberg, further demonstrating that the school 

district knew how to get information from Taylor when it 

deemed it necessary. 

Based on this evidence, the school district had more than 

enough information to put it on notice that Taylor might 

have a disability, and therefore, in order to trigger the 

school district's obligation to participate in the interactive 

process, Taylor or her representative only needed to request 

accommodation. In light of the undisputed background 

information putting the school district on notice that Taylor 

had recently developed a serious disability, we think it 

would be especially inappropriate to insist that Taylor's son 

must have specifically invoked the ADA or used the words 

"reasonable accommodation" when he requested 

accommodations. Under the circumstances, it hardly 

should have come as a surprise that Taylor would want 

some accommodations, particularly as the successive

disciplinary meetings began to mount for an employee who 

had previously performed very well. We would add that the 

school district had ample time to seek legal advice on its 

obligation to provide reasonable accommodations. 

Regardless, Taylor's son has submitted an affidavit saying 

that not only did he provide diagnostic and treatment 

information to the school district, he also asked for 

"accommodations" for his mother. 

Menzel's affidavit asserts that she did not "learn the 

specifics" of Taylor's disorder until after this litigation was 

started. Ferrara's affidavit states, "To my knowledge, at no 

time was I or anyone else at the School District aware of 

Plaintiff's alleged diagnosis of bipolar disorder or the details 

or frequency of any treatments she may have been receiving 

after returning from Coastal Plain until after the current 

lawsuit was filed." 

We want to make clear that the school district's duty to 

participate in the interactive process is triggered if Taylor 

notified either Menzel who was Taylor's supervisor and East 

Pikeland's principal, or Ferrara, the school district's 

administrative assistant for personnel. Thus, if Taylor's son 

requested accommodations from Ferrara, then the school 

district would have a duty to participate in the interactive 

 24 
process regardless of how much Menzel knew about 

Taylor's disorder. 

We would add that to trigger the school district's duty to 

participate in the interactive process, it is not essential that 

Ferrara or Taylor knew the specific name of Taylor's 

condition although Taylor's son has created a factual 

dispute on this issue by saying that he provided Ferrara 

with diagnostic and treatment information. Suffice it to say 

that there is no genuine dispute that the school district was 

aware that Taylor exhibited serious psychiatric problems 

and those problems were severe enough to require her to be 

hospitalized for roughly three weeks. Following Taylor's 

discharge from the hospital, the school district knew that 

Phoenixville Psychiatric Associates monitored the lithium 

Taylor was taking and that Taylor continued to see a 

psychiatrist. Taylor also provided the school district with a 

number of avenues for obtaining further information from 

her doctors, avenues that the school district used. If there 

was any further information that the school district felt it 

needed to justify an accommodation, it was incumbent on 

the school district to ask for it. As the Seventh Circuit has 

said, "The employer has to meet the employee half-way." 

Bultemeyer, 100 F.3d at 1285. To raise the bar for 

triggering the interactive process any further would 

essentially nullify the process. 

Once the employer knows of the disability and the 

employee's desire for accommodations, it makes sense to 

place the burden on the employer to request additional 

information that the employer believes it needs. Disabled 

employees, especially those with psychiatric disabilities, 

may have good reasons for not wanting to reveal 

unnecessarily every detail of their medical records because 

much of the information may be irrelevant to identifying 

and justifying accommodations, could be embarrassing, 

and might actually exacerbate workplace prejudice. An 

employer does not need to know the intimate details of a 

bipolar employee's marital life, for example, in order to 

identify or justify an accommodation such as a temporary 

transfer to a less demanding position. 

Another reason for placing some burden on the employer 

is that, as the Seventh Circuit recognized in Bultemeyer, an 

 25 
employee with a mental illness may have difficulty 

effectively relaying medical information about his or her 

condition, particularly when the symptoms are flaring and 

reasonable accommodations are needed. Id. See also Criado 

v. IBM Corp., 145 F.3d 437, 444 (1st Cir. 1998)(When an 

employer terminated an employee with a mental illness due 

to an alleged miscommunication over a leave of absence, a 

jury could find that the employer failed to live up to its 

responsibility to help find accommodations.). It is worth 

noting that Taylor's hospital records specifically stated that 

at the time of her hospitalization, she "lacked insight" into 

her condition and believed her only problem was"acute 

stress." 

2. Application of the interactive process following adequate 

notice 

Viewing the evidence in the light most favorable to Taylor, 

we believe that a reasonable jury could conclude, based on 

the evidence presented thus far, that the school district did 

not meet its burden under the interactive process. Taylor's 

version of the case can be stated succinctly as follows: After 

Menzel and Ferrara watched Taylor become manic and 

require hospitalization, the two decided that Menzel should 

begin documenting Taylor's every error within days of her 

return, despite the fact that Taylor's son requested 

accommodations, informed them about Taylor's condition, 

and provided them with the means to obtain more 

information if needed. Notwithstanding Taylor's previous 

twenty years of strong performance and the school district's 

clear notice of Taylor's disability and desire for 

accommodations, the school district offered no 

accommodations or assistance in finding them, made 

Taylor's job more difficult, and simply sat back and 

continued to document her failures. A reasonable jury 

could conclude that the school district did not engage in an 

interactive process of seeking accommodations and is 

responsible for the breakdown in the process. 

The school district emphasizes that the only 

accommodation Taylor specifically requested was transfer 

to another position, which Taylor later conceded was not 

feasible. We do not think that it is fatal to Taylor's claim 

that her son did not request a specific accommodation or 

 26 
that Taylor's request in March of 1994 was for an 

accommodation that she admitted was not possible. The 

interactive process, as its name implies, requires the 

employer to take some initiative. In Bultemeyer, the court 

explained, "If the note [from the psychiatrist requesting 

accommodation] was too ambiguous and [the employer] did 

not know what Bultemeyer wanted, [the employer] easily 

could have called [the psychiatrist] for a clarification." 

Bultemeyer, 100 F.3d at 1285. The interactive process 

would have little meaning if it was interpreted to allow 

employers, in the face of a request for accommodation, 

simply to sit back passively, offer nothing, and then, in 

post-termination litigation, try to knock down every specific 

accommodation as too burdensome. That's not the 

proactive process intended: it does not help avoid litigation 

by bringing the parties to a negotiated settlement, 6 and it 

unfairly exploits the employee's comparative lack of 

information about what accommodations the employer 

might allow. In addition, in some cases courts may be 

better positioned to judge whether the employer met with 

the employee in good faith than to judge how burdensome 

a particular accommodation really is. 

The ADA's regulations make clear that the purpose of the 

interactive process is to determine the appropriate

accommodations: "This process should identify the precise 

limitations resulting from the disability and the potential 

reasonable accommodations that could overcome those

limitations." 29 C.F.R. S 1630.2(o)(3). Therefore, it would 

make little sense to insist that the employee must have 

_________________________________________________________________ 

6. In Deane we emphasized the value of the interactive process for 

avoiding litigation: "we take this opportunity to observe that this 

protracted (and very much ongoing) litigation would likely have been 

unnecessary had the parties taken seriously the precepts announced in 

our opinion in Mengine." Deane 142 F.3d at 149 (citation omitted). We 

would add that the interactive process can be thought of as a less 

formal, less costly form of mediation. See 67 U.S.L.W. 2255 (noting the 

value of mediated settlement in ADA cases). Mediated settlements, the 

article explains, are cheaper than litigation, can help preserve 

confidentiality, allow the employee to stay on the job, and avoid 

monetary damages for an employer's initially hostile responses to 

requests for accommodations. The interactive process achieves these 

same goals even more effectively. 

 27 
arrived at the end product of the interactive process before 

the employer has a duty to participate in that process. The 

EEOC's interpretive guidelines squarely place some of the 

burden on the employer by stating that "the employer must 

make a reasonable effort to determine the appropriate 

accommodation." 29 C.F.R. Pt. 1630, App. S 1630.9 at 359. 

As we explained in Mengine, the process must be 

interactive because each party holds information the other 

does not have or cannot easily obtain. We noted that 

"employers will not always know what kind of work the 

worker with the disability can do, and conversely, the 

worker may not be aware of the range of available 

employment opportunities, especially in a large company. 

Thus, the interactive process may often lead to the

identification of a suitable position." Mengine, 114 F.3d at 

420. More specifically, we explained that while an employee 

who wants a transfer to another position ultimately has the 

burden of showing that he or she can perform the essential 

functions of an open position, the employee does not have 

the burden of identifying open positions without the 

employer's assistance. "In many cases, an employee will not 

have the ability or resources to identify a vacant position 

absent participation by the employer." Mengine, 114 F.3d 

420.7 Taylor's concession that she knew of no other open 

positions, therefore, should not necessarily be the end of 

the matter if the school district made no effort to help 

investigate. 

When transfer is not sought, as was presumably the case 

when Taylor's son first requested accommodations, the 

employer likewise will often hold more information than the 

employee about what adjustments are feasible in the

employee's current position. The Seventh Circuit pointed 

out in Bultemeyer that: "When Bultemeyer worked at North 

Side High School, a simple adjustment in his duties was 

_________________________________________________________________ 

7. Our opinion in Gaul v. Lucent Technologies, Inc., 134 F.3d 576 (3d Cir. 

1998) should be distinguished because there the employee's proposed 

accommodation, a transfer whenever he decided he was stressed, was 

unreasonable as a matter of law. If an employee insists on a single 

accommodation that is unreasonable as a matter of law, then the 

employee will be at fault for the breakdown in the interactive process. 

 28 
enough of an accommodation to enable him to work there. 

But this time, we do not know what might have happened, 

because [the employer] was unwilling to engage in the 

interactive process and accommodation him." Bultemeyer, 

100 F.3d at 1285. 

In short, an employer who has received proper notice 

cannot escape its duty to engage in the interactive process 

simply because the employee did not come forward with a 

reasonable accommodation that would prevail in litigation. 

Participation is the obligation of both parties, however, so 

an employer cannot be faulted if after conferring with the 

employee to find possible accommodations, the employee 

then fails to supply information that the employer needs or 

does not answer the employer's request for more detailed 

proposals. And while a specific request may not always be 

necessary to initiate the process, it certainly helps bolster 

the employee's claim that the employer knew that the 

employee wanted accommodations. 

The interactive process does not dictate that any 

particular concession must be made by the employer; nor 

does the process remove the employee's burden of showing 

that a particular accommodation rejected by the employer 

would have made the employee qualified to perform the 

job's essential functions. See Walton v. Mental Health 

Association of Southeastern Pennsylvania, 168 F.3d 661, 

670 (3d Cir. 1999). All the interactive process requires is 

that employers make a good-faith effort to seek 

accommodations. 

Employers can show their good faith in a number of 

ways, such as taking steps like the following: meet with the 

employee who requests an accommodation, request 

information about the condition and what limitations the 

employee has, ask the employee what he or she specifically 

wants, show some sign of having considered employee's 

request, and offer and discuss available alternatives when 

the request is too burdensome. These steps are consistent 

with the recommendations in the EEOC's interpretive

guideline. See 29 C.F.R. Pt. 1630, App. S 1630.9 at 359-61. 

We do not think this process is especially burdensome. As 

we found in Mengine, the Postal Service engaged in good 

faith in the interactive process when it exchanged a number 

 29 
of letters with an employee in an effort to identify a vacant 

position for reassignment and sent the employee multiple 

job descriptions of vacant positions. Mengine, 114 F.3d at 

421.8 

The school district can be understood as arguing 

implicitly that it did not have to participate in the 

interactive process because there was no feasible 

accommodation that would have made Taylor capable of 

performing the essential functions of her job. In Mengine we 

stated that "if reasonable accommodation is impossible, 

nothing more than communication of this fact is required. 

Nonetheless, if an employer fails to engage in the interactive 

process, it may not discover a way in which the employee's 

disability could have been reasonably accommodated,

thereby risking violation of the Rehabilitation Act." Mengine, 

114 F.3d at 420-21. We explained that whether an 

employer's duty to participate in the interactive process has 

been discharged will often be a matter of "timing": i.e., the 

employer will almost always have to participate in the 

interactive process to some extent before it will be clear that 

it is impossible to find an accommodation that would allow 

the employee to perform the essential functions of a job. 

Put differently, because employers have a duty to help 

the disabled employee devise accommodations, an employer 

who acts in bad faith in the interactive process will be liable 

if the jury can reasonably conclude that the employee 

would have been able to perform the job with 

accommodations. In making that determination, the jury is 

entitled to bear in mind that had the employer participated 

in good faith, there may have been other, unmentioned 

possible accommodations. On the other hand, as we 

_________________________________________________________________ 

8. Employers may find it useful to take advantage of the Job 

Accommodation Network although we do not in any way suggest that 

employers are obliged to make use of this service. The EEOC compliance 

manual explains that: "The Job Accommodation Network (JAN) provides 

advice free-of-charge to employers and employees contemplating 

reasonable accommodation. JAN is a service of the President's 

Committee on Employment of People with Disabilities which, in turn, is 

funded by the U.S. Department of Labor. JAN can be reached at 1-800- 

ADA-WORK." EEOC Compliance Manual, Enforcement Guidance for 

Psychiatric Disabilities, at 23 n.56. 

 30 
explained in Mengine, "The ADA, as far as we are aware, is 

not intended to punish employers for behaving callously if, 

in fact, no accommodation for the employee's disability 

could reasonably have been made." Mengine, 114 F.3d at 

420 (quoting Willis v. Conopco, Inc., 108 F.3d 282, 285 

(11th Cir. 1997)). 

When an employee has evidence that the employer did

not act in good faith in the interactive process, however, we 

will not readily decide on summary judgment that 

accommodation was not possible and the employer's bad 

faith could have no effect. To assume that accommodation 

would fail regardless of the employer's bad faith would 

effectively eliminate the requirement that employers must 

participate in the interactive process. An employer who 

acted in bad faith would be in essentially the same, if not 

better, position than one who participated; that is, both 

employers would be arguing that the employee failed to find 

an accommodation making him or her able to perform the 

essential function of the job. The less the employer 

participated, the easier this would become, and as a result, 

the requirement that employers participate in the 

interactive process would be toothless. Thus, where there is 

a genuine dispute about whether the employer acted in 

good faith, summary judgment will typically be precluded. 

Cf. Hendrick-Robinson v. Excel Corp., 154 F.3d 685 (7th Cir. 

1998)(Refusing to grant an employer summary judgment 

because it may not have participated in good faith in 

finding accommodations); Baert v. Euclid Beverage, Ltd., 

149 F.3d 626 (7th Cir. 1998)(Refusing to grant an employer 

summary judgment because disputes of fact remained 

about which party caused the breakdown in the interactive 

process).9 When the disability involved is one that is heavily 

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9. The Ninth Circuit has expressed disagreement with our decision in 

Mengine and concluded that employers are not obliged to participate in 

the interactive process. See Barnett v. U.S. Air, Inc., 157 F.3d 744, 753 

(9th Cir. 1998). The majority in Barnett worried that an employer could 

be held liable for failing to engage in the interactive process even 

though 

the employee was successfully accommodated. We believe that where an 

employer has successfully made reasonable accommodations, a court 

can conclude as a matter of law that the employer did not act in bad 

faith. The Barnett majority also objected that it was not clear when an 

 31 
stigmatized in our society - as is true when the employee is 

voluntarily or involuntarily committed to a mental 

institution - courts should be especially wary on summary 

judgment of underestimating how well an employee might 

perform with accommodations or how much the employer's 

bad faith may have hindered the process of finding 

accommodations. 

In Taylor's case we believe that there are genuine 

disputes about the school district's good faith participation 

in the interactive process, and assuming the school district 

did act in bad faith, nothing the school district points to 

demonstrates that it would be impossible to accommodate 

Taylor. Prior to her hospitalization, Taylor performed her 

job effectively for nearly two decades. But after becoming 

disabled and seeking accommodations, she has presented 

evidence that the school district made no response to her 

request and instead increased the difficulty of her job. 

Given the evidence Taylor presents of bad faith on the 

school district's part, we will not decide on summary 

judgment that it would have been fruitless for the school 

district to make some modest and fairly obvious efforts to 

accommodate. 

_________________________________________________________________ 

employer would incur process liability. Bad faith can, of course, take 

many different forms, just as negligence can, precluding easy statement 

of a general rule about when bad faith has occurred. However, we believe 

that jurors should be able to distinguish between stonewalling and 

assisting an employee in finding accommodations. The fact that there 

may be some hard cases is hardly unique in law. The Barnett majority's 

last objection was that 29 C.F.R. S 1630(o)(3) only states that it "may be 

necessary" for the employer to engage in an interactive process. But the 

EEOC's interpretive guidelines state that once an employee requests 

accommodations, the employer "must make a reasonable effort to 

determine the appropriate accommodation." 29 C.F.R. Pt. 1630, App. 

S 1630.9 at 359. The guidelines continue that in some instances the 

interactive process may not be necessary because it is clear to both 

parties involved what accommodation will work. For example, the 

guidelines explain that an employee in a wheelchair may want her desk 

elevated with blocks so that her wheelchair will slide under. No 

interactive process will be needed here. Id. at 360. The regulation uses 

the phrase "may be necessary," in other words, because sometimes the 

necessary accommodation is obvious. We have also recognized that the 

process is not necessary in cases where accommodation is impossible. 

 32 
In particular, the school district could have increased 

Taylor's job responsibilities more slowly, given more time to 

introduce the computer, or communicated less by formal, 

written reprimands. The EEOC compliance manual for 

psychiatric disorders provides that some adjustments in 

supervisory methods can qualify as legitimate 

accommodations.10 The ADA itself specifically provides that 

reasonable accommodations can include "job restructuring, 

part-time or modified work schedules, reassignment to a 

vacant position, acquisition or modification of equipment or 

devices, appropriate adjustment or modifications of

examinations, training materials or policies, the provision of 

qualified readers or interpreters, and other similar 

accommodations for individuals with disabilities." 42 U.S.C. 

S 12111(9)(B). 

The fact that Taylor's potential accommodations are

modest should not encourage us to dismiss Taylor's claim 

on summary judgment on the theory that they would be 

useless; that would have the bizarre implication that the 

more demanding a plaintiff's accommodations were, the 

more likely the plaintiff is to survive summary judgment. 

Plaintiffs who wish to participate in good faith in the 

interactive process are more likely to have scaled back their 

demands and asked for modest accommodations. More 

importantly, we think it is worth remembering that 

sometimes comparatively modest accommodations can reap 

large returns in how well a disabled employee performs. 

_________________________________________________________________ 

10. The EEOC compliance manual states that: "Supervisors play a 

central role in achieving effective reasonable accommodations for their 

employees. In some circumstances, supervisors may be able to adjust 

their methods as a reasonable accommodation by, for example, 

communicating assignments, instructions, or training by the medium 

that is most effective for a particular individual (e.g., in writing, in 

conversation, or by electronic mail)." 2 EEOC Compliance Manual, 

Enforcement Guidance for Psychiatric Disabilities, at 26. However, the 

manual continues that "[r]easonable accommodation... does not require 

lowering standards or removing essential functions of the job." Id. at 26 

n.62. We would hasten to add that a disabled employee is not entitled to 

a supervisor ideally suited to his or her needs. We held in Gaul, for 

instance, that an employee is not entitled to transfer whenever the 

employee deems that his co-workers are causing him inordinate stress. 

134 F.3d at 579. 

 33 
We want to reiterate the limits of the interactive process. 

We are not holding that an employer who has made a good 

faith effort to accommodate must be saddled with a 

secretary who consistently makes typos and fails to deliver 

messages. Nor do we hold that an employer cannot 

introduce a new computer system or switch an employee to 

a less forgiving supervisor. What we do hold is that an 

employer, having received adequate notice of an employee's 

disability and desire for accommodations, cannot fail to 

engage the employee in the interactive process offinding 

accommodations, increase the disabled employee's job 

responsibilities, and then simply document the employee's 

failures. 

To show that an employer failed to participate in the 

interactive process, a disabled employee must demonstrate: 

1) the employer knew about the employee's disability; 2) the 

employee requested accommodations or assistance for his 

or her disability; 3) the employer did not make a good faith 

effort to assist the employee in seeking accommodations; 

and 4) the employee could have been reasonably 

accommodated but for the employer's lack of good faith. 

Mengine, 114 F.3d at 420; Bultemeyer, 100 F.3d at 1285; 

Taylor, 93 F.3d at 165. 

We believe that a reasonable jury could conclude that 

Taylor requested accommodations, that the school district 

made no effort to help Taylor find accommodations and was 

responsible for the breakdown in the process, and that 

there were accommodations that the school district could 

have provided that would have made Taylor able to perform 

the essential functions of her job. If a jury concludes that 

the school district was not responsible for the breakdown in 

the interactive process, Taylor must demonstrate that a 

specific, reasonable accommodation would have allowed her 

to perform the essential functions of her job. 

We have viewed the evidence in the light most favorable 

to Taylor, as we must on summary judgment. The school 

district is, of course, free to argue at trial that it did not 

receive notice of Taylor's request for accommodation, that it 

tried to assist Taylor in seeking accommodations, or, 

assuming the school district was responsible for the 

breakdown in the process, that no accommodation would 

 34 
have allowed Taylor to perform the essential functions of 

her job. And as we discussed in an earlier section above, 

the school district can also contest whether Taylor is 

disabled while on medication.11 

IV 

For the foregoing reasons, we will reverse the March 20, 

1998 grant of summary judgment by the District Court and 

remand the case for further proceedings. By a separate 

order we have granted panel rehearing and vacated our 

prior opinion, which was reported at 174 F.3d 142. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

_________________________________________________________________ 

11. The District Court treated Taylor's complaint as possibly raising a 

disparate-treatment claim. Because Taylor represents on appeal that she 

did not intend to raise such a claim, we need not reach the issue. 

 35