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. e du/thir dc ir c uit_1999/228Filed 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, vacatin g 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 Judg e 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 w ith Disabilities Act of 1990 (ADA), 42 U.S.C. S 12101 e t 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 illnes s. The District Court granted summary judgment for the sch ool district, reasoning that Taylor's mental illness, b ipolar disorder, or manic depression as it is sometimes ca lled, did not qualify as a disability under the ADA. Alternat ively, 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 conseque ntly, she was not an otherwise qualified individual with a disability.

In an opinion filed on April 5, 1999, we reversed t he District Court's order after we concluded that Tayl or's

unmedicated condition demonstrated that she has a disability; we also found that she raised genuine f actual disputes on whether the school district participate d in good faith in the interactive process required by the AD A. When the school district sought rehearing, we held its p etition until the Supreme Court announced its decisions in two

2then-pending cases addressing whether disabilities under

the ADA are judged with or without regard to mitiga ting measures. The Supreme Court has now decided in Sutt on 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 disabili ty under 42 U.S.C. S 12102(2)(A) must be evaluated taking in to 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 re quiring a trial on whether Taylor's bipolar disorder substa ntially limits a major life activity while she is taking li thium. Because Sutton and Murphy concerned only the issue of when a plaintiff has a disability under the ADA, ou r previous discussion of the interactive process is u naffected; therefore, we have incorporated it unchanged in thi s 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 Elementa ry School in the Phoenixville School District. Prior t o the fall of 1993, Taylor had not received a single disciplin ary 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 bi polar disorder in late August of 1993, regrettably during the first full week that a new principal, Christine Menzel, a ssumed her duties at East Pikeland. While Taylor was at wo rk during that week, she began acting strangely, alarm ing Menzel and Linda Ferrara, the school district's administrative assistant for personnel. Menzel and Ferrara were so disturbed by Taylor's behavior that they do ubted 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 psych iatric

3institution in Rocky Mount, North Carolina, where s he was

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

Hospital records indicate that Taylor had become ma nic and was increasingly agitated and psychotic. Accord ing to the records, she hid herself at the train station, believing that someone was after her, and tried to disguise h erself by covering her head with a scarf. On the car ride fro m Pennsylvania to the hospital, she was delusional an d 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 h er. The hospital report noted that she did not have any ins ight 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 delusion s" and was hyperactive and psychotic.

Taylor was treated by two psychiatrists at the hosp ital who diagnosed her illness as bipolar disorder and t reated her with lithium carbonate and an antipsychotic dru g, Navane, when lithium alone was insufficient. Once h er symptoms were brought under control by the combinat ion 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 h er discharge from the hospital, Taylor has continued t o take lithium, see Dr. Sonnenberg, and receive the necess ary, periodic blood tests.1

___________________________________________________ ______________

1. One widely-used text explains that: "Because lit hium has an extremely narrow therapeutic range, blood levels of the drug must be closely monitored. The occurrence and intensity of side eff ects are, in most cases, directly related to plasma concentrations of lithium. . . . The

main toxic effects involve the gastrointestinal tract, t he kidneys, the thyroid, the cardiovascular system, the skin, and the nervou s system." Robert M. Julien, A Primer of Drug Action, 8th ed., W.H. Free man & Co., at 229-30 (1998). The Physicians' Desk Reference, 53rd ed., M edical Economics Co., at 2750 (1999) is in agreement: "Lithium toxic ity is closely related

to serum lithium levels and can occur at doses clos e to therapeutic

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

4Taylor'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 th at his

mother would be absent from work because she had be en diagnosed with bipolar disorder and required hospitalization. Mark Taylor also asserted in his a ffidavit that during a phone call on October 8, one week bef ore 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 affi davit adds that he provided Ferrara with the information he received from Taylor's doctors "including diagnosis and

treatment information and medications." Coastal Pla in Hospital itself sent a letter to the school distric t on September 13, 1993, identifying one of Taylor's phy sicians and providing a phone number to address any additio nal 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 dis trict had other contact with her doctors because before Taylo r was permitted to return to work, the school district re quired her to submit a note from Dr. Sonnenberg saying that Ta ylor 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 Coast al 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, le thargy, impaired concentration, dizziness, slurred speech, ataxia, m uscle weakness, and nystagmus. Julien adds that memory problems and wei ght gain are also frequent complaints with continued treatment. As pl asma 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 pat ient lowers his or

her salt intake or loses excessive amounts of salt (such as through sweating), lithium blood levels rise and intoxicati on may inadvertently

follow." Id. at 228.

5her up this coming weekend to bring her back to

Pennsylvania. She will be receiving out-pati ent care in Phoenixville through the Phoenixville Psychi atric Associates. They will monitor her Blood Lith ium[sic]

levels. It was stressed that she must mainta in and continue her medication. He felt, as well as the doctor, that the first week should be easing her tra nsition 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, ho wever, 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 news paper article describing her filing of the current lawsui t." App. vol.

II at 2. Ferrara has also submitted an affidavit as serting that "at no time was I or anyone else at the School District aware of Plaintiff's alleged diagnosis of bipolar d isorder or the details or frequency of any treatments she may have been receiving after returning from Coastal Plain u ntil 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 Ferra ra's letter indicated, Taylor was only authorized to wor k half days for the first week. Prior to her hospitalizati on, Taylor had received high praise for her performance. In Ju ne of 1993, about two months before her hospitalization, the outgoing principal, Dr. Herron, wrote that Taylor"e xcels in all aspects" of her job, was a "credit to our schoo l," and "a tribute to excellence." App. vol. I at 86. In a sub sequent letter of recommendation, Dr. Herron again praised her performance without reservation:

As a secretary, Mrs. Taylor served me and th e entire school family exceeding[ly] well. . . . I fe lt comfortable in leaving the building, sometimes for an exten ded amount of time, because of Mrs. Taylor's ski lls. Indeed, at such times, Mrs. Taylor carried on the fu ll functions of the school as if she herself was capable of running the functions of the building without superv ision, and, indeed, in such cases, she was entirely capa ble of doing so.

6App. vol. I at 87.

Almost immediately upon Taylor's return to work, Menzel, following Ferrara's advice, began documenti ng errors Taylor committed. The errors were then compi led into a bullet-format list; the list was presented t o Taylor;

and soon thereafter Menzel and Ferrara would call h er into a disciplinary meeting and offer her a chance to re but the charges. A representative from Taylor's union also attended although it is unclear to what extent the represent ative participated.

Taylor's first disciplinary notice, dated November 9, 1993, listed errors as early as October 19, 1993, only fo ur 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 bef ore 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 documen ted many errors that she did not contest, and the inter personal friction between Menzel and Taylor continued unabat ed. Disciplinary notices during this period list proble ms such as missed deadlines, mishandling of records, typing errors, interpersonal conflicts, and undelivered messages.

Part of Taylor's complaint about her treatment is t hat Menzel often did not speak to her informally and in -person about problems as they arose. Instead, Taylor alleg es that Menzel documented every misstep, saved letters cont aining typos, photographed her desk and trash can, as well as the inside of the office refrigerator, and waited to co nfront her with the evidence in the disciplinary meetings.

Taylor also objects that the school district made h er job more difficult upon her return from the hospital. F irst, during her absence, Menzel instituted a number of c hanges in the office: she introduced new office policies, created new forms, relocated documents, rearranged furniture, t hrew out Taylor's old filing system, and discardedfiles, including some in Taylor's desk. Taylor claims that these cha nges were disorienting and made it much more difficult t o accomplish tasks she could easily perform before th e

7hospitalization. Of course, Taylor's absence coinci ded with

the first weeks Menzel served as principal, and thu s changes were inevitable and part of Menzel's prerog ative as a new principal. The gravamen of Taylor's complaint

, however, focuses on the abrupt, seemingly hostile m anner in which the changes were made.

Compounding Taylor's difficulties, a new computer system was introduced to keep track of student reco rds and other data. The school district points out that pla ns to introduce the computers had been underway prior to her hospitalization, and according to an affidavit subm itted by a school-district employee, Taylor had more difficu lty than the other secretaries at a training session conduct ed in July of 1993. Taylor does not appear to dispute tha t the school district was entitled to switch to computers ; rather, the thrust of her objection seems to be that the sc hool district raised another hurdle by the manner in whi ch the new system was introduced when she returned from he r hospitalization.

Taylor claims that her job was made more difficult in another, more straightforward way: following her re turn, her job description was changed, increasing the num ber of her job responsibilities from 23 to 42. It is not c lear from the record when these changes were made, how substa ntial they were, or to what extent the new list simply en umerated 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 significa nt responsibilities and made her return more difficult

.

On September 2, 1994 Taylor received a notice placi ng her on probation for 30 days and informing her that if her performance did not improve, she would be terminate d. She was in fact discharged on October 28, 1994 although her union representative subsequently negotiated with t he

school district to allow her to "retire" and receiv e some retirement benefits. Since her termination, Taylor has applied at different times for unemployment benefit s 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

8supplemental 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 distr ict 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 f or summary judgment, we must determine whether there a re 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 distri ct was entitled to judgment as a matter of law. See Fed.R. Civ.P. 56; Celotex Corporation v. Catrett, 477 U.S. 317, 3 22-23, 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 indivi dual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, condit ions, 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 indi vidual holds or desires." 42 U.S.C. S 12111(8). A"disabili ty" is defined as: "(A) a physical or mental impairment th at 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 ca se of discrimination under the ADA, the plaintiff must sh ow: "(1) he is a disabled person within the meaning of the A DA; (2) he is otherwise qualified to perform the essential functions

9of the job, with or without reasonable accommodatio ns 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. 199 8) (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 rea sonable 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 physi cal 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 h as a disability under the ADA, we mention that we will o nly discuss Taylor's ADA claim because our analysis of an ADA claim applies equally to a PHRA claim. Kelly v. Dre xel 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, T aylor can establish that she has a disability if she has a mental impairment that substantially limits a major life a ctivity, has a record of such an impairment, or is regarded as having such an impairment. 42 U.S.C. S 12102(2). Ta ylor argues that she can satisfy each of these standards , but because we conclude that she raises genuine factual disputes about whether her bipolar disorder substan tially 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 heav ily on the first standard -- does Taylor have an impairment that sub stantially limits a major life activity? What discussion there was of t he second and third standards for having a disability did not address w hether a plaintiff who relies exclusively on either the "regarded as" stan dard or the "record of a substantially limiting impairment" standard is le gally entitled to

reasonable accommodations.

10No one disputes that bipolar disorder counts as a m ental

impairment under the ADA; the contested issue is wh ether Taylor's bipolar disorder substantially limits a ma jor life activity. In determining whether a plaintiff's impa irment substantially limits a major life activity, the Sup reme Court

has stressed that courts should "determine the exis tence of disabilities on a case-by-case basis." Albertsons, Inc. v. Kirkingburg, ___ U.S. ___, 119 S.Ct. 2162, 2169 (19 99). To make that individualized assessment, we must begin by identifying the specific life activity or life acti vities that Taylor says her disorder affected and then evaluate whether her condition "substantially limits" those life act ivities.

When Taylor relied upon our prior holding that disabilities are judged in their untreated state, s he contended that while she was hospitalized, her bipo lar disorder affected a number of her major life activi ties, such as the ability to think and care for herself. Follo wing the decisions in Sutton and Murphy, which require court s to evaluate disabilities in their treated condition, T aylor submitted supplemental briefing that shifted the em phasis to her ability to think.

We accept that thinking is a major life activity. W e 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 sta tute, we conclude that it is reasonable to include thinking as a

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We have previously identified, without deciding, th e issue of whether a "regarded as" plaintiff is entitled to accommodat ions. 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" st andard, the "record of an impairment" standard may raise similar consid erations.

We need not resolve these difficult issues in our p resent decision. Given that we have other grounds for reversal, inte rvening law has affected the "regarded as" standard, and important issues were left unaddressed by the parties, we will allow the parti es to pursue on remand whether Taylor is regarded as disabled or ha s a record of a substantially limiting impairment and, if so, wheth er she would be

entitled to reasonable accommodations under either of those standards.

11major life activity. We hardly need to point out th at

thinking is inescapably central to anyone's life. P erhaps the activity is rather broad, but given the difficulty of specifying the different constituents of thinking or otherwise narrowing this central activity (especially when di scussing the effects of psychosis or its subclinical manifes tations), we will not try to constrict Taylor's arguments abo ut how her condition affects her ability to think. We thin k that most objections about the broadness of thinking as a life activity can be captured in the analysis of when th e activity is substantially limited.

The Supreme Court has said, "The ADA does not defin e `substantially limits,' but `substantially' suggest s `considerable' or `specified to a large degree.' " Sutton, 119

S.Ct. at 2150. But while substantial limitations sh ould be considerable, they also should not be equated with" utter inabilities." Kirkingburg, 119 S.Ct. at 2168 (quoti ng 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 activi ty that the average person in the general population can perfor m; or (ii) Significantly restricted as to the condition, manne r or duration under which an individual can perform a particular major life activity as compared to the c ondition, 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 regulation s include the following factors for evaluating when someone i s substantially limited in a major life activity:"(1) The nature and severity of the impairment; (ii) The duration o r expected duration of the impairment; and (iii) The permanent or long term impact, or the expected perm anent or long term impact of or resulting from the impair ment." 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 C ourt stated that even though the EEOC is charged with is suing regulations for the employment provisions under Tit le I of the ADA, "[n]o agency, however, has been given auth ority to issue regulations implementing the generally applic able provisions of the ADA, see SS 12101-12102, which fa ll

12outside 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 con test the validity of the regulations, including 29 C.F.R.S 1 630.2(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 becaus e she was psychotic, increasingly agitated, and gripped b y 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 hersel f 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 h ighway was filled with "firefighters" there to protect her . Unable to recognize that these beliefs were baseless, she exp lained at

the time of her admission that she was there for"ac ute

stress."

Both the school district's expert and Taylor's trea ting physician agreed that Taylor has bipolar disorder a nd that the condition is chronic. Dr. Rieger, the school di strict's expert, added, "There is no doubt in my mind that M s. Taylor experienced a biologic psychiatric illness i n which genetic factors play a role. These illnesses can ap pear even fairly late in life regardless of life events and s tressors. . ." App. vol. I at 157. Dr. Sonnenberg, Taylor's treati ng physician, confirmed that Taylor has an ongoing con dition that requires her to stay on lithium,3 and accordi ng 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 opi nion of her own treating physician. But Gaul stated that"[i]t is we ll settled that treating physicians may testify as to any subject relevant t o the evaluation and treatment of their patients." Id. at 349. At issue in Gaul was whether testimony by the plaintiff's treating physician sat isfied the New Jersey Supreme Court's holding that "expert medical testim ony is required to establish the fact of the employee's [handicap]." I d. (quoting Clowes v. Terminex International, Inc., 109 N.J. 575, 597 (19 88)). Just as the District Court in Gaul deemed admissible the opinio n 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 d emonstrate that the plaintiff has a disability.

13Rieger's report, Taylor has continued to take 300 m gs. 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 l imiting. But the central question, in light of Sutton and Mu rphy, is whether Taylor's continuing impairment remained a "disability" under the ADA by imposing substantial limitations even while treated. Specifically, Taylo r must show that she was substantially limited during the year following her hospitalization, the time span when s he says

that she was denied reasonable accommodations.

Taylor maintains that even though lithium has impro ved

her condition and has reduced the risk of full-blow n psychotic episodes, the drug has not perfectly cont rolled her symptoms, leaving her still substantially limit ed 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 lithiu m, Dr. Sonnenberg wrote a short note to the school distric t, explaining that Taylor was temporarily unable to wo rk. Taylor's claims of uncontrolled, ongoing symptoms a re corroborated by a number of other sources as well. Lithium has a very narrow therapeutic range, and blood leve ls of the drug can fluctuate for a variety of reasons. See su pra, at n.1. Throughout the 1993-94 school year following h er hospitalization, she experienced enough difficulty that she saw Dr. Sonnenberg twenty-five times even though Ta ylor, who earned a secretary's salary, cares for a disabl ed child, and is divorced, had to pay the $120 fee out of poc ket and was reimbursed only half the cost by her insurance. One

can infer that she would not have undertaken such e xpense without experiencing serious difficulty. Taylor als o points out that prior to her hospitalization, she had rece ived high praise for her work performance, but after the onse t of her illness, she encountered a number of problems, as t he school district's records document. Therapeutic lev els of

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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.

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

n.1. Some of these effects, like the nausea Taylor complained of, may bear indirectly on the ability t o think, while other side effects, such as impaired concentr ation and memory problems, bear directly on thinking. Tay lor's problems at work may have been related to these dru g side effects, and the Supreme Court has noted that drug side effects can be important in evaluating whether some one is disabled. Sutton, 119 S.Ct. at 2147.

Given our prior holding in Matczak v. Frankford Can dy & Chocolate Co., 136 F.3d 933 (3d Cir. 1997), Taylor not surprisingly focused on her untreated condition whe n 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 tria l on whether she continued to be substantially limited e ven while receiving treatment.

Although Taylor clearly was disabled at the time sh e was hospitalized, she need not prove that she continued to experience symptoms of that magnitude: paranoia and

distorted mood can have a "substantial" or"consider able" impact on Taylor's thinking well before they force hospitalization. Substantial limitations need not r ise 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 e xpected long-term impact, see 29 C.F.R. S 1630.2(j)(2), we find evidence that Taylor has had to contend with a seri ous, very much ongoing condition. Following the initial severe episode, she again had to leave work just a few mon ths later; she sought treatment twenty-five times throu ghout the year; and every day throughout this period she took medication requiring careful monitoring. That she m ay not have experienced problems every day does not defeat her claim. Chronic, episodic conditions can easily limi t how well a person performs an activity as compared to the re st of the population: repeated flare-ups of poor health can h ave a cumulative weight that wears down a person's resolv e and continually breaks apart longer-term projects.

15The school district argues vehemently that Taylor i s not

disabled and points to the report of its expert. Af ter conducting an office visit with Taylor on June 24, 1997, Dr. Rieger concluded: "When I examined Ms. Taylor[,] sh e had a normal mental state. Her chronic biological psych iatric 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 fro m a psychiatric point of view." App. vol. I at 159.

We do not think Dr. Rieger's report is sufficient t o grant summary judgment in the school district's favor. Ta ylor has presented evidence that she is disabled, and on sum mary judgment we read the evidence in the light most fav orable 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 reasonab le jury to reject it. The passage quoted above, for example , says that Taylor is not presently, on June 24, 1997, exh ibiting the symptoms of her disorder. That statement does n ot resolve what Taylor's condition was like between th e fall of 1993 and the fall of 1994. Taylor may have gained b etter 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 wh ether he relied on too slender a base of experience observin g Taylor's

condition. It is true that the doctor was able to r eview a number of documents, including Taylor's disciplinar y reports from the school district and the reports fr om Coastal Plain Hospital, but these reports may not h ave 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 difficul ty recognizing and expressing the symptoms of her cond ition. Not only did she believe at the time of her hospita lization that she was merely suffering from "acute stress," but this difficulty seemed to continue. Dr. Rieger's own rep ort reveals this problem. When he asked Taylor to descr ibe the

16events leading up to her hospitalization, she relat ed that

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

Upon my question Ms. Taylor revealed what pr ompted this recommendation: "I was telling [Ferrara ] about a person who was employed by the district. I r emarked that the person was dead -- strike that -- w as injured. I had passed an ambulance. That person was o n my mind. It was a strange remark that wasn't tr ue." Upon my question Ms. Taylor agreed that in retros pect what she just told me sounded like a delusion. Sh e immediately continued her story: "I had plan ned to

take time off. I had Amtrak tickets to see m y mother in Rocky Mount, North Carolina. I didn't get th ere. The

train was canceled because of a hurricane. M y son took me there by car. My brother made arrang ements 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 psychiatri c hospital

near her relatives. She could not recall wha t specific delusions she voiced upon entering the hospi tal. She recalled that she gave the doctors lots of i nformation, that she was "very talkative" although very tired. [Elsewhere the report quotes Taylor as sayin g"some nights I got only 3 to 4 hours of sleep."] U pon my question she admitted that she may have been euphoric.

Id. One would expect a plaintiff to inflate the sev erity of her condition when talking to opposing counsel's expert . Taylor instead made her hospitalization sound like a simpl e trip to visit her mother and had obvious difficulty conveyi ng the

extent of her illness. We should not insist that al l plaintiffs with bipolar disorder must have the self-awareness and expressive powers of a Robert Lowell (who had the i llness)

before we allow that their condition is substantial ly limiting.

After reviewing the school district's records, Dr. Rieger did express the opinion that Taylor's "misconduct w as solely due to her basic personality," and "[w]hatev er subjective difficulties she experienced during her last year of employment were not due to her mental illness bu t due to her peculiar personality traits. . . ." Id. at 1 58 and 156. In

17a similar vein, he asserted that people with bipola r disorder

can "fulfill all their work duties to the full sati sfaction of their superiors without engaging in misconduct and without requiring any accommodations." Id. at 159.

A reasonable jury could question the doctor's concl usion that all of Taylor's problems at work were due sole ly 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 wa s hospitalized did problems appear. Thus, a reasonabl e jury could find it surprising that the peculiar personal ity traits only manifested themselves after she became ill. It also is not clear that the doctor was in a position to judg e when Taylor had engaged in "misconduct" at work; a reaso nable 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 allo wed 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 Tay lor was "not disabled," Taylor must have been symptom free.

But the doctor's remark appears to be simply anothe r way of saying that Taylor was capable of working. I t is hardly conclusive proof that Taylor was not substan tially limited. That Dr. Sonnenberg used "disabled" as the equivalent of "able to work" is supported by her ea rlier note in November that said Taylor "is temporarily disabl ed 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 t he ADA governing reasonable accommodations at work entirel y empty of meaning. If there has ever been a legal te rm of art, "disabled" certainly qualifies. And the Supreme Cou rt recently rejected glib estoppel arguments that turn on the

18different 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 dis putes 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 thi s issue, we find that the District Court applied the wrong l egal standards and that under the correct standard, disp utes of material fact remain, requiring remand.

As stated above, an employer commits unlawful discrimination under the ADA if the employer does"n ot mak[e] reasonable accommodations to the known physi cal or mental limitations of an otherwise qualified ind ividual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodati on 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 i ndividual with a disability," we have held that a plaintiff m ust "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 fu nctions of the position held or desired, with or without reaso nable 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 yea rs, receiving high praise, there is no serious dispute that she satisfies the prerequisites for the position. The c ritical issue is whether Taylor could, with reasonable accommodat ions, perform the essential functions of her job followin g her return from her hospitalization.

The Interactive Process

The ADA's regulations state that: "To determine the appropriate reasonable accommodation it may be nece ssary for the [employer] to initiate an informal, interac tive process

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

should identify the precise limitations resulting f rom the disability and the potential reasonable accommodati ons 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 d isability has requested provision of a reasonable accommodati on, the employer must make a reasonable effort to deter mine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both th e 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 t he regulation and interpretive guidelines, we held in Mengine that "both parties have a duty to assist in the sea rch 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 R egents, 75 F.3d 1130, 1135 (7th Cir. 1996)("A party that obstr ucts or delays the interactive process is not acting in goo d faith. A party that fails to communicate, by way of initiati on or response, may also be acting in bad faith."); Taylo r 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 wit h paranoid schizophrenia and bipolar disorder sought to

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5. While Mengine involved a claim under the Rehabil itation Act, the regulation and interpretive guidelines applied in t he 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 th e Rehabilitation Act. See also Bragdon v. Abbott, 118 S.Ct. 2196, 2202 (1 998).

20return 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 W ayne Community Schools, and added that he would not rece ive any special accommodation. The employer then instru cted the plaintiff to take a physical and report to work or else he would be terminated. After touring the new school w ith 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 tak e the physical or report to work although he did have his psychiatrist send a letter to the employer which st ated that due to the plaintiff's illness, it would be in the plaintiff's

best interest to work at a less stressful school. T he employer never responded and terminated the plainti ff. The Seventh Circuit, reversing summary judgment for the employer, concluded that there was a genuine disput e as to whether the employer engaged in the interactive pro cess of seeking accommodations.

We agree with the Seventh Circuit which held that:

An employee's request for reasonable accommo dation requires a great deal of communication betwe en the employee and employer... [B]oth parties bear responsibility for determining what accommod ation 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, co urts should look for signs of failure to participate in good faith or failure by one of the parties to help the ot her party determine what specific accommodations are necessary. A party that obstructs or delays the interactive process is not acting in good fa ith. A party that fails to communicate, by way of initiat ion or response, may also be acting in bad faith. I n essence, courts should attempt to isolate the cause o f 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 pres ent case is divided into two steps: first, we will clar ify what

21notice must be given to the employer to trigger the

employer's obligations under the interactive proces s, and second, we will elaborate on the employee's and the employer's duties once the interactive process come s into play.

1. Notice of the disability and request for accommo dation

The first question we must address is who must make the request for accommodation and what form that re quest must take. The EEOC compliance manual provides that "a family member, friend, health professional, or othe r representative may request a reasonable accommodati on on behalf of an individual with a disability."2 EEOC Compliance Manual, Enforcement Guidance for Psychia tric Disabilities, at 20-21. Likewise, in Bultemeyer the Seventh Circuit allowed that an employee's psychiatrist cou ld make a request for accommodations on behalf of an employ ee. Bultemeyer, 100 F.3d at 1286. In our case, therefor e, 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 writ ing," 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 `reasona ble

accommodation.' " Id. at 19. The Seventh Circuit sa id 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.3 d at

1286.

The EEOC's manual makes clear, however, that while the notice does not have to be in writing, be made by t he employee, or formally invoke the magic words "reaso nable accommodation," the notice nonetheless must make cl ear that the employee wants assistance for his or her d isability. In other words, the employer must know of both the disability and the employee's desire for accommodat ions for that disability.

22These rules are consistent with the statute which s ays

that the employer must make reasonable accommodatio ns to an employee's "known" disability. 42 U.S.C. S 12112(b)(5)(A). What matters under the ADA are no t formalisms about the manner of the request, but whe ther the employee or a representative for the employee p rovides the employer with enough information that, under th e circumstances, the employer can be fairly said to k now 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 Tayl or v. Principal Financial Group, Inc., 93 F.3d 155 (5th C ir. 1996), an employee whose job performance had fallen off mentioned to his employer that he was diagnosed wit h bipolar disorder. Nothing the employee had done sug gested the nature of his illness. When the employer, who s aid 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 hi s disorder and, even more significantly, could not co nfirm that he ever explicitly asked for an accommodation or help of any sort. Under these circumstances, the employe e 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 stat e a claim under the Rehabilitation Act when he never to ld 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 Ta ylor became psychotic at work, that the school district knew she was hospitalized immediately thereafter, and that C oastal Plain Hospital contacted the school district by let ter about Taylor's hospitalization and provided a phone numbe r to answer questions. It is also undisputed that Ferrar a wrote a note saying she planned to contact Taylor's docto rs and that she wrote a letter to the superintendent, stat ing that "Phoenixville Psychiatric Associates... will monito r [Taylor's] Blood Lithium [sic] levels. It was stressed that sh e must

maintain and continue her medication." The school d istrict

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

from Dr. Sonnenberg, further demonstrating that the school district knew how to get information from Taylor wh en it deemed it necessary.

Based on this evidence, the school district had mor e than enough information to put it on notice that Taylor might have a disability, and therefore, in order to trigg er the school district's obligation to participate in the interactive process, Taylor or her representative only needed t o request accommodation. In light of the undisputed backgroun d information putting the school district on notice t hat Taylor had recently developed a serious disability, we thi nk it would be especially inappropriate to insist that Ta ylor'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 wa nt some accommodations, particularly as the successive disciplinary meetings began to mount for an employe e who had previously performed very well. We would add th at 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 treatme nt information to the school district, he also asked f or "accommodations" for his mother.

Menzel's affidavit asserts that she did not "learn the specifics" of Taylor's disorder until after this li tigation was started. Ferrara's affidavit states, "To my knowled ge, at no time was I or anyone else at the School District aw are of Plaintiff's alleged diagnosis of bipolar disorder o r the details or frequency of any treatments she may have been re ceiving after returning from Coastal Plain until after the current

lawsuit was filed."

We want to make clear that the school district's du ty 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 distri ct's administrative assistant for personnel. Thus, if Ta ylor's son requested accommodations from Ferrara, then the sch ool district would have a duty to participate in the in teractive

24process 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 e ssential that Ferrara or Taylor knew the specific name of Taylor' s condition although Taylor's son has created a factu al dispute on this issue by saying that he provided Fe rrara with diagnostic and treatment information. Suffice it to say that there is no genuine dispute that the school di strict was aware that Taylor exhibited serious psychiatric pro blems and those problems were severe enough to require he r to be hospitalized for roughly three weeks. Following Tay lor's discharge from the hospital, the school district kn ew that Phoenixville Psychiatric Associates monitored the l ithium Taylor was taking and that Taylor continued to see a psychiatrist. Taylor also provided the school distr ict 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 distric t felt it needed to justify an accommodation, it was incumben t on

the school district to ask for it. As the Seventh C ircuit has said, "The employer has to meet the employee half-w ay." Bultemeyer, 100 F.3d at 1285. To raise the bar for triggering the interactive process any further woul d essentially nullify the process.

Once the employer knows of the disability and the employee's desire for accommodations, it makes sens e to place the burden on the employer to request additio nal information that the employer believes it needs. Di sabled employees, especially those with psychiatric disabi lities, 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 identi fying and justifying accommodations, could be embarrassin g, 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 or der to identify or justify an accommodation such as a temp orary transfer to a less demanding position.

Another reason for placing some burden on the emplo yer is that, as the Seventh Circuit recognized in Bulte meyer, an

25employee with a mental illness may have difficulty

effectively relaying medical information about his or her condition, particularly when the symptoms are flari ng and

reasonable accommodations are needed. Id. See also Criado v. IBM Corp., 145 F.3d 437, 444 (1st Cir. 1998)(Whe n an employer terminated an employee with a mental illne ss due to an alleged miscommunication over a leave of abse nce, 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 ins ight" into her condition and believed her only problem was"acu te

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, b ased on the evidence presented thus far, that the school di strict did not meet its burden under the interactive process. Taylor's version of the case can be stated succinctly as fol lows: After Menzel and Ferrara watched Taylor become manic and require hospitalization, the two decided that Menze l should begin documenting Taylor's every error within days of her return, despite the fact that Taylor's son requeste d accommodations, informed them about Taylor's condit ion, and provided them with the means to obtain more information if needed. Notwithstanding Taylor's pre vious twenty years of strong performance and the school d istrict'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 an d continued to document her failures. A reasonable ju ry could conclude that the school district did not eng age in an interactive process of seeking accommodations and i s responsible for the breakdown in the process.

The school district emphasizes that the only accommodation Taylor specifically requested was tra nsfer to another position, which Taylor later conceded wa s not feasible. We do not think that it is fatal to Taylo r's claim that her son did not request a specific accommodati on or

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

accommodation that she admitted was not possible. T he interactive process, as its name implies, requires the employer to take some initiative. In Bultemeyer, th e court explained, "If the note [from the psychiatrist requ esting accommodation] was too ambiguous and [the employer] did not know what Bultemeyer wanted, [the employer] eas ily could have called [the psychiatrist] for a clarific ation." Bultemeyer, 100 F.3d at 1285. The interactive proce ss would have little meaning if it was interpreted to allow employers, in the face of a request for accommodati on, simply to sit back passively, offer nothing, and th en, in post-termination litigation, try to knock down ever y 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 o f 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 burden some a particular accommodation really is.

The ADA's regulations make clear that the purpose o f the interactive process is to determine the appropriate accommodations: "This process should identify the p recise limitations resulting from the disability and the p otential

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

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6. In Deane we emphasized the value of the interact ive process for avoiding litigation: "we take this opportunity to o bserve that this protracted (and very much ongoing) litigation would likely have been unnecessary had the parties taken seriously the pre cepts announced in our opinion in Mengine." Deane 142 F.3d at 149 (cit ation omitted). We would add that the interactive process can be thoug ht 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). Mediate d 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 hostil e responses to requests for accommodations. The interactive proces s achieves these same goals even more effectively.

27arrived at the end product of the interactive proce ss before

the employer has a duty to participate in that proc ess. The EEOC's interpretive guidelines squarely place some of the burden on the employer by stating that "the employe r must make a reasonable effort to determine the appropria te accommodation." 29 C.F.R. Pt. 1630, App. S 1630.9 a t 359.

As we explained in Mengine, the process must be interactive because each party holds information th e other does not have or cannot easily obtain. We noted tha t "employers will not always know what kind of work t he 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 com pany. Thus, the interactive process may often lead to the identification of a suitable position." Mengine, 11 4 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 es sential functions of an open position, the employee does no t have the burden of identifying open positions without th e 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, t he employer likewise will often hold more information than the employee about what adjustments are feasible in the employee's current position. The Seventh Circuit po inted out in Bultemeyer that: "When Bultemeyer worked at North Side High School, a simple adjustment in his duties was

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7. Our opinion in Gaul v. Lucent Technologies, Inc. , 134 F.3d 576 (3d Cir. 1998) should be distinguished because there the emp loyee's proposed accommodation, a transfer whenever he decided he wa s stressed, was unreasonable as a matter of law. If an employee ins ists on a single

accommodation that is unreasonable as a matter of l aw, then the employee will be at fault for the breakdown in the interactive process.

28enough of an accommodation to enable him to work th ere.

But this time, we do not know what might have happe ned, because [the employer] was unwilling to engage in t he interactive process and accommodation him." Bulteme yer, 100 F.3d at 1285.

In short, an employer who has received proper notic e cannot escape its duty to engage in the interactive process simply because the employee did not come forward wi th a reasonable accommodation that would prevail in liti gation. Participation is the obligation of both parties, ho wever, so an employer cannot be faulted if after conferring w ith the employee to find possible accommodations, the emplo yee then fails to supply information that the employer needs or does not answer the employer's request for more det ailed proposals. And while a specific request may not alw ays be necessary to initiate the process, it certainly hel ps bolster the employee's claim that the employer knew that th e 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 sh owing that a particular accommodation rejected by the emp loyer would have made the employee qualified to perform t he job's essential functions. See Walton v. Mental Hea lth Association of Southeastern Pennsylvania, 168 F.3d 661, 670 (3d Cir. 1999). All the interactive process req uires 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 limitation s the employee has, ask the employee what he or she speci fically wants, show some sign of having considered employee 's request, and offer and discuss available alternativ es when the request is too burdensome. These steps are cons istent 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 burdenso me. As we found in Mengine, the Postal Service engaged in good faith in the interactive process when it exchanged a number

29of letters with an employee in an effort to identif y a vacant

position for reassignment and sent the employee mul tiple 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 t he interactive process because there was no feasible accommodation that would have made Taylor capable o f performing the essential functions of her job. In M engine we stated that "if reasonable accommodation is impossi ble, nothing more than communication of this fact is req uired. Nonetheless, if an employer fails to engage in the interactive process, it may not discover a way in which the emp loyee'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 p rocess 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 b e clear that it is impossible to find an accommodation that woul d allow the employee to perform the essential functions of a job.

Put differently, because employers have a duty to h elp the disabled employee devise accommodations, an emp loyer who acts in bad faith in the interactive process wi ll be liable if the jury can reasonably conclude that the employ ee would have been able to perform the job with accommodations. In making that determination, the j ury is entitled to bear in mind that had the employer part icipated in good faith, there may have been other, unmention ed possible accommodations. On the other hand, as we

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8. Employers may find it useful to take advantage o f 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 Networ k (JAN) provides advice free-of-charge to employers and employees co ntemplating

reasonable accommodation. JAN is a service of the P resident'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 Guid ance for Psychiatric Disabilities, at 23 n.56.

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

not intended to punish employers for behaving callo usly if, in fact, no accommodation for the employee's disabi lity 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, h owever, we will not readily decide on summary judgment that accommodation was not possible and the employer's b ad

faith could have no effect. To assume that accommod ation would fail regardless of the employer's bad faith w ould effectively eliminate the requirement that employer s 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 employe r 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 prec luded. Cf. Hendrick-Robinson v. Excel Corp., 154 F.3d 685 (7th Cir. 1998)(Refusing to grant an employer summary judgmen t 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 e mployer summary judgment because disputes of fact remained about which party caused the breakdown in the inter active process).9 When the disability involved is one that is heavily

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9. The Ninth Circuit has expressed disagreement wit h our decision in Mengine and concluded that employers are not oblige d to participate in the interactive process. See Barnett v. U.S. Air, I nc., 157 F.3d 744, 753 (9th Cir. 1998). The majority in Barnett worried th at an employer could be held liable for failing to engage in the interac tive process even though the employee was successfully accommodated. We beli eve that where an employer has successfully made reasonable accommoda tions, a court can conclude as a matter of law that the employer d id not act in bad faith. The Barnett majority also objected that it w as not clear when an

31stigmatized in our society - as is true when the em ployee is

voluntarily or involuntarily committed to a mental institution - courts should be especially wary on s ummary judgment of underestimating how well an employee mi ght perform with accommodations or how much the employe r'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 par ticipation in the interactive process, and assuming the school district did act in bad faith, nothing the school district p oints to demonstrates that it would be impossible to accommo date Taylor. Prior to her hospitalization, Taylor perfor med her job effectively for nearly two decades. But after b ecoming disabled and seeking accommodations, she has presen ted 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 summa ry judgment that it would have been fruitless for the school district to make some modest and fairly obvious eff orts to

accommodate.

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employer would incur process liability. Bad faith c an, of course, take many different forms, just as negligence can, precl uding easy statement of a general rule about when bad faith has occurred . However, we believe that jurors should be able to distinguish between s tonewalling and assisting an employee in finding accommodations. Th e 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 interac tive process. But the EEOC's interpretive guidelines state that once an e mployee requests accommodations, the employer "must make a reasonabl e effort to determine the appropriate accommodation." 29 C.F.R. Pt. 1630, App. S 1630.9 at 359. The guidelines continue that in so me 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 sl ide under. No interactive process will be needed here. Id. at 360 . The regulation uses the phrase "may be necessary," in other words, beca use sometimes the necessary accommodation is obvious. We have also re cognized that the process is not necessary in cases where accommodati on is impossible.

32In particular, the school district could have incre ased

Taylor's job responsibilities more slowly, given mo re time to introduce the computer, or communicated less by for mal, written reprimands. The EEOC compliance manual for psychiatric disorders provides that some adjustment s in supervisory methods can qualify as legitimate accommodations.10 The ADA itself specifically provi des that reasonable accommodations can include "job restruct uring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equ ipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the p rovision of qualified readers or interpreters, and other simila r 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 b e useless; that would have the bizarre implication th at the more demanding a plaintiff's accommodations were, t he more likely the plaintiff is to survive summary jud gment. 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 r eap large returns in how well a disabled employee perfo rms.

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10. The EEOC compliance manual states that: "Superv isors play a central role in achieving effective reasonable acco mmodations for their employees. In some circumstances, supervisors may b e able to adjust their methods as a reasonable accommodation by, for example, communicating assignments, instructions, or trainin g by the medium that is most effective for a particular individual (e.g., in writing, in conversation, or by electronic mail)." 2 EEOC Compl iance 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 employ ee 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 trans fer whenever the employee deems that his co-workers are causing him inordinate stress.

134 F.3d at 579.

33We 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 employ ee to a less forgiving supervisor. What we do hold is tha t an employer, having received adequate notice of an emp loyee's disability and desire for accommodations, cannot fa il to engage the employee in the interactive process offi nding accommodations, increase the disabled employee's jo b responsibilities, and then simply document the empl oyee's

failures.

To show that an employer failed to participate in t he interactive process, a disabled employee must demon strate: 1) the employer knew about the employee's disabilit y; 2) the employee requested accommodations or assistance for his or her disability; 3) the employer did not make a g ood faith effort to assist the employee in seeking accommodat ions; and 4) the employee could have been reasonably accommodated but for the employer's lack of good fa ith. Mengine, 114 F.3d at 420; Bultemeyer, 100 F.3d at 1 285; Taylor, 93 F.3d at 165.

We believe that a reasonable jury could conclude th at Taylor requested accommodations, that the school di strict made no effort to help Taylor find accommodations a nd was responsible for the breakdown in the process, and t hat

there were accommodations that the school district could have provided that would have made Taylor able to p erform the essential functions of her job. If a jury concl udes that the school district was not responsible for the bre akdown in the interactive process, Taylor must demonstrate th at a specific, reasonable accommodation would have allow ed her to perform the essential functions of her job.

We have viewed the evidence in the light most favor able to Taylor, as we must on summary judgment. The scho ol district is, of course, free to argue at trial that it did not receive notice of Taylor's request for accommodatio n, that it tried to assist Taylor in seeking accommodations, o r, assuming the school district was responsible for th e breakdown in the process, that no accommodation wou ld

34have allowed Taylor to perform the essential functi ons 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 Marc h 20, 1998 grant of summary judgment by the District Cour t and remand the case for further proceedings. By a separ ate order we have granted panel rehearing and vacated o ur 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

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11. The District Court treated Taylor's complaint a s possibly raising a disparate-treatment claim. Because Taylor represent s on appeal that she did not intend to raise such a claim, we need not r each the issue.

35