2005 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

1-4-2005 

# C ol lins v . P r ude n t i al I n

v & Ret P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ock e t N o . 03-2356

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Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a U niv e r sit y S choo l of L a

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w . v i l l a no v a . e du/thir dc ir c uit_2005/15871 NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT No: 03-2356 LEONA COLLINS, Appellant

v.

PRUDENT IAL INVE STMENT A ND RETI REMENT S ERVI CES; PRUDENT IAL INSURANCE COMPANY OF AMERI CA App eal from th e Un ited States District Co urt for the M iddle D istrict of P enns ylvania (CivilNo. 01-cv-01765) Distric t Judg e: Ho n. A . Rich ard C aputo Submitte d Under Third Circ uit LAR 34.1(a)

November 19, 2004 Be for e: S CIR ICA , Chief Judge , McKEE and CH ER TO FF , Circuit

Judges (Opinion fi led: J anuary 4, 2005)

OPI NION M cK EE , Circuit

Judge

. Leo na C ollins ap peals th e district c ourt’s g rant of judg men t as a m atter of law in favo r of h er for mer e mp loyer, Prud ential In vestm ent an d R etirem ent S ervice s, on th e suit she fil ed under the Americans with Dis abili ties Act. Coll ins cl aims that she prese nted2

suffici ent evi dence to al low a reasonabl e juryto concl ude that Prudenti al fai led to

re as ona bl y acc ommod at e he r d is abi li ty . F or th e r eas ons th atfol lo w, we wil l a ffi rm. I. FACTUAL BA CKGROUND Since we write only for the parti es who are aware of the circ umstances underly ing this suit , we will not set forth t he factualor procedur al backgr ound except i nsofar as may be helpful to our di scussi on. Brie fly stat ed, Prudential c laims t hat Coll ins had not mastered t

he financi al tr ansacti ons component of her job by the ti me of her fir st 90 day inter view altho ugh she wa s ab le to p erfo rm a ssig ned non -fin anc ial tas ks a deq uate ly. Therea fter, Prudential foc used he r training on the fin ancial aspects o f her job. H owe ver, accordi ng to Prudential, Collins was stil l unable to perform the financi al aspec ts of her job satisfact oril y. On February 2, 2000, a fter approximate ly 13 months (11 months beyond t he normal 60-da y t

raini ng period for

Collins ’ posit

ion), Prudenti al te rminate d her

em plo ymen t. According to Pruden tial, on January 21, 20 00, when Collins kn ew that she wo uld be terminate d in less than two weeks, the Pennsyl vania Sta te Office of Vocational Rehabili tati on (“OVR”) informed Pru dential that it was p roviding services to Collin s in order to a ssessher cognit ive sta tus and ide

ntify any accom modati on that coul d improve her job performance. In late April 2000, more than two months afte r her employ

ment with Prudential had been te rminated, Collins w as evaluated an d diagno sed with Atten tion Deficit3

Hype ractivity Disorder (“ADHD”). It is undi sputed tha t Collinshad not been t

ested, or evaluat ed by a healt h care pr ovider for a

ny a ttenti on impai

rment prior to be

ing terminated by Prudential.

II. DISTRI CT COURT PROCEEDINGS Collins filed a complaint a gainst Prudential alleging that her terminati on violated the Age Dis crim

ination in Employ

ment Ac t (“ADEA”) , 29 U.S.C. §§ 621 et seq ., and the Ame ricanswith Disa

biliti es Act ( “ADA”), 42 U. S.C. §§ 12101 et seq . Her ADEA claim alleged that Prud ential accommodated a young er employee with an attention deficit disorder . She cla

imed Pr udential gave the y

ounger em

ploy ee an additional 90 da ysof training, y et refused to extend a sim ilar accom

modation to her. Her ADA claim alleged that she was disab led and that P rudential failed to provid e a reasonable acco mmodation. She include d parall el age a nd disabil ity claims under the

Pennsy lvania Hum

an Relat ion Act (“PHRA” ), 43 P A . C ONS . S TAT . A NN . §§ 951 et seq.

Prudential eventually

moved for summary

judgment. The district court denied that motio n with respect to the ADEA claim and the ADA failure to acco mmodate claim, and those claims proc eeded to trial be fore a jur y. At the conclusion o f Collins’

case- in-chief at the ensuing jury trial , the dis trict

court gra nted Prudent

ial’smotion for judgment a s a ma

tter of l aw on both the ADA c laim and the par

allel PHRA claim . The court concl uded t hat Co lli ns wasnot a q

uali fied indivi dual w ith a disa bility . The ADEA and PHRA age cl aimswere subm itted t o the jury which ret

urned a ver

dict in fa vor of1 We exercise plenary review ov er the district cour t’s grant of a j udgment as a

matter of law. Rego v. ARC Wat er Treat ment Co. of Pa. , 181 F.3d 396, 400 (3d Cir. 1999). U nder Fed. R . Civ. P. 50 (a), we view th e evidence in the light most fav orable to the non-mov ing party giving th e non-movin g party the benefit o f all reasonab le inferences th at can be draw n in its favo r. Wittekamp v. Gulf &Western, Inc. , 991 F.2d 1137, 1141 (3d C ir. 1993). 4 Prudential. This appeal followed. The only issue raised iswhether the district c ourt erred in g rant ing jud gmen t as a ma tter o f law in f avo r of Pru den tial o n Co llin s’ AD A cla im. 1 III. DI SCUSSION A. Basic statu tory fr amework. The ADA prohibits employer s from discrim inating “against a qualified individual with a dis abilit

y be cause of t

he disability

of such indivi dual in re gard to . . . terms and conditionsof employ

ment. ” 42 U.S.C. § 12112( a). A “qua lified individual with a disability” is defined as a pe rson “with a d isability who, with or w ithout reason able accommodati on, can perform the essenti al functions of the employment position that such indiv idual hold s or desires.” 42 U .S.C. § 12 111(8). “D isability” is defined as: “(A) a phy sical

or ment al im pairm ent that substant ially limits one or m

ore of the m

ajor life activitie s of [an] individual; (B) a record of such impairme nt; or (C) being regarded as having su ch an impairment.” 42 U .S.C. § 12 102(2). In order to establish a prima facie case of discrim ination under the ADA, an employ ee mus t show: “( 1) he is a disable d person wit

hin the m eaning of the

ADA; (2) he is othe rwise qua lified t o perform the ess ential

functions of t

he job, with or

without2 In Taylor v. Phoenixville School Distric t , we held that thi nking is a major l ife

acti vity . 184 F.3d at

307. In Gagliardo v. Connaught Laboratori es, I nc. , 311 F.3d 545, 569 (3d Cir. 2002), we held t hat gener al cogni tive f

unctions , such as concentr ating a nd remembering, are major life acti vities.

3 Collins was not diagnosed with AD HD /ADD until t wo m onths after she was termina ted by Prudenti al for poor job performance. Neverthe less, we will addre ss the merits o f her a ppea l. 5 reasonable acco mmodations by the employer; and (3) he h as suffered an otherwise adverse employ

ment decision as a

result of discrim

ination.” Taylor v. Ph oenixville School District , 184 F.3 d 296, 3 06 (3d C ir. 1999) (citatio n omitted). “The ADA specifies that an employ er discrim

inates against a quali fied individual with a dis abilit

y whe n the em ploy er does ‘ not mak[e ] reasona ble acc ommoda

tions to t he known physical or mental limit ations of the individual unless the [employ er] can demonst rate t hat the a ccomm odation would impose a

n undue hardshi

p on the opera

tion of the business of the [employ er].’” Id. (quoting 42 U.S.C . § 1211 2(b)(5)(A )).

B. The Standard Adop ted by the District Court Collins c laim s that he

r impa irme nt, ADHD/ADD, s ubstanti ally limits her m

ajor life ac tiviti es of thinking, lear ning, concentrating or rem ember ing. 2 She arguesthat the distri ct court

applied a n incorre ct sta

ndard is a ssess ing the subs tantia l lim iting effe ct of her impairment. 3 The district court looked to “whether [Collins’] phy sical or me ntal condition precluded or sever ely restr icted or limited [her] in thinking, c oncentra ting, learning and remem

bering.” Collins contends that this “pre clusion” standard creat ed an impossibly high burd en. She argu es:4 Admittedl y, in Wil li ams the pers on assert ing the di sabil ity

had a manual impairment , i. e., carpal tunnel s yndr ome, and not a ment al one, i.e ., ADHD/AD D, as Collins clai ms to have. However, since t he ADA defines “ disabi lit y” as a “phys ical or mental i mpairment t

hat subst antia lly

limi ts one or

more of the major

life acti viti es of [an] indivi dual, ” we see no reason why the defi niti on of substa ntial ly limi ted in Wil li ams would not apply to mental impairments. 6

If you use the district cou rt’s standard of “preclusion” to obtain disability

status, than (sic ) no employ ee could ever have a disability claim against an emplo yer because he would not be able

perform (sic) the ess ential

functions of t

he position. Being prec luded from thinking, learning, concentrating, or rem

embering, would not allow an employee to wo rk , l et al on e f

un ct io n i n s oc ie ty. Collins believ es that she merely had to prod uce suffic ient evidence to allow a reaso nable jury to find that

she was “ substant

ially limited” in he

r cognitive functions . She does not explain wh at means by “substantially limited” in her cognitive functions, an d she also ignores the S upreme Court’s ex planation o f that phrase. In Toyot a Motor Manufac turi

ng, Ke ntuck

y, I nc. v . Wi lliams , 534 U.S. 184 (2002), the Court ex plained:

that to be sub stantially limited in performing manual task s, 4 an individ ual must have an impairment th at prevent s or severely restricts the individual from doing activities t hat are of central importa nce to most peop le’s daily lives. Id. at 198 (emphasis ad ded). An impairment th at “prevents o r severely restricts” activities pre cludes one from satisfac torily completing them, and we therefore fail to see any mate rial di stinct

ion between the dist

rict c ourt’s a

lleged “ preclus ion” tes t, and the Supreme Court’s a naly sis in Wil liams

.7 C. The District Court’s Review of the Evidence. In deciding a moti on for judgment as a matter

of law, cour

ts mus t review the record a nd draw all

reasona ble infer ences in favor of the nonm oving party

without weighing the evidence or making cred ibility determinations. Reeves v. Sanders on Plumbing Products, Inc. , 530 U.S. 133, 150 (200 2). Collins argues that the dist rict court improperly

weighed the evidence when it found that her employ ment r ecord, he r academic r

ecord, he r recor d of activities and her f amily experience clearly does not rise to the level of being precluded or severely limited or re stricted in those m

ajor life activities of t

hinking, re

mem bering, concentr ating and l earning. Collins submits that

the district court s hould have “acknowledged that [she] presented evidence that ‘she felt r

estricted in thes e areas,’ a nd allowed the jury to decide whether her employ

ment and academ

ic record prove that she is not substa ntially limited in her cognitive functions.” However, Collins’ own conclusory te stimony on direct examinati on constitutes the only evidence of limitationsshe produce d. She tes tified: I have probl ems l earning a nd reme mbering and concentrating . It takes me longer to d o everything. If I g o in the shower in the morning so metimes I’m in there for a half hour. It t akes m e longer. If I stop t

o think about s omething while I’m showering I’ll

have to go back and wash an arm again bec ause I don’ t rem ember – reme mber i f I did that

or not. If I’m busy with househol d tasks, I’ll be working in one room and I ’ll nee d somet hing from t

he second r

oom. I’ ll go into the s econd room

and then I’ ll sta

rt doing things there

and8 forget to g o back to th e first room even though I was really close t o finishing t

hat tas k. And you know there’s time s that people describe that particular scenario as like being b londe or a sen ior moment, bu t I do n’ t h av e m om en ts , I ha ve it al l d ay l on g e ve ryd ay. And I have problems with establishing priorit ies. Prioritie s are all one level with m

e. There ’s no com

partm ents to put them in. It’sall like every thing is high, put-out-the-fire priorit y. That’s wha

t cause s me t

o jump from

one thing to t

he other. I want to get to every thing at the same t

ime. I hav e pro blems , too , wit h time , wit h my sche dul ing of my time . There’ s a girlfriend of m ine who frequently , when she invitesus over, t

ells m e a half hour

before the

rest of t he company so that I get there on tim e and get the food while it’s hot. When aske d ho w th is affect s her life , she resp ond ed: “ Well, if af fect s eve rythin g in my life. It affects m

y dail y living and it affects whatever I do outside the house. ” Although we ar

e not unsy

mpathe tic to Ms . Collins , this t

estim ony doe s not establish that

she is s ubstanti ally

limited in thinking, lea

rning, conc entrat

ing or

remem bering. We do not intend to be uncharitable in noting that Collins descri bes difficulties th at many people who are n ot sufferin g from ADH D/ADD must reg ularly cope with. At most , the im

pact on thinking, lea

rning, conc entrat

ing and rem

ember ing can be accurately characterized as moderate. How ever, “[h] ealth conditio ns that cause moderate limitations on majo r life activities do n ot constitute d isabilities under th e ADA. To hold otherwise could expand the ADA to recognize almost every working American as disabled to some degre e.” Orr v. Wal-Mart Stores, I nc. , 297 F.3d 720, 724 (8th Cir.9

2002), cert. denied , U.S. , 124 S.C t. 2346 (2 004). Further more, we do not bel ieve that the dist rict court i mproperly

weighed the evidence whe n it relied on Co llins’ cross-examin ation testimony abou t her past w ork hist ory , academi c achievement s and other acti viti es in concl uding that she was not substant iall y l imit ed in the major li fe acti viti es of thi nking, l earning, remembering or

concen trating. She testified that she h ad been gainfully employed sinc e her teen years and throughout

her adult

life . She te sti fied that, when she was in high sc hool, s he worked as a part -ti me supermarket cashier and calcul ated transactions i n her head t o make change for cust omers. After

she graduat ed from high school , she worked for Prudenti al for s even year s doing dat a process ing. She also owned and opera ted a bar and rest aurant f

or about s ix y ears with other members of her famil y. She then worked as a bookke eper and t ax prepare r for a l ocal accountant , while managing a househol d and rais ing two y oung childr en. After seven year s as a bookkeeper , she at tended j unior col lege ful l ti me for a y ear and earned a techni cian’s certi ficat e in accounting. She t hen became an office administ rator and servi ce manager for Ter minix. There, she took night courses a t the j unior col lege and earned an as sociat e degree i n accounti ng. She graduated cum laude , and worked as an office manager

for anothe r company, and then worked as a n accountant for y et another comp any. After that, she w orked fo r Pruden tial on assignm ent from a tempo rary emp loymen t agen cy in 199 8, bef ore b eing h ired by P rude ntial as a regu lar em ployee in10

1999. She testifie d that s he performed well in allof these j obs and did not need any accommodations fr om any employ er or fr om the juni or coll ege. Moreover, while keepi ng house, r aisi ng childr en, working and goi ng to juni or coll ege, she was ac tive i n civic and

com mu nity organ ization s. She wa s a m emb er of th e “T eddy B ear P atrol,” the Girl S couts (servin g 19 years as a troop leade r), the Pe nnsylva nia S tate A dviso ry Cou ncil to f edera lly funded readi ng and math progra ms (servi ng as a Council member and as a parent voluntee r in t

he programs) , and the Strat egic Pla nning Commission for her loca l school district. This is , to s ay t

he least , inc onsist ent with t he limi tati ons in the major l ife activities of thinki ng, le arning, remembering and conc entrat ing, t hat she now cla ims the evi dence

es tabl is he d. Rat

he r t ha n e st ab li sh su bs ta nt ia l l im it at io ns , h erte stim ony cl ea rl y sh ows that he r claim ed life -long AD HD /AD D a ffliction did n ot eff ect he r ability to suc cessf ully engage in a wide variety of professional and community acti vities. The evidence w as, theref ore, i nsuffici ent to a llow a rea sonable j ury to find t he substa ntiallimi tati ons she claims. D. ADHD/ ADD isa disabili ty under the AD A. Collins a rgues tha t our deci sion in Gagliardo v. Connaugh t Laboratories, Inc. , 311 F.3d 565 (3d Cir. 2002) demons trate s that ADHD/ ADD is a dis abilit

y unde r the5 To th e e xt en t th at C ol lin s is cla im in g t ha t th er e is su ch a th in g a s a di sa bi lity per

se , Coll ins i s mist aken. It is cl ear tha t “[m]er ely having an i mpairment does not make one disabl ed for purpos es of the ADA.” Wil li ams , 534 U.S. a t 195. “ [W]hether a per son has a disabi lit

y under the ADA is an indivi dualiz ed inquir y. ” Sutton v. United Air Li nes, I nc. , 527 U.S. 471, 483 ( 1999). An ADA plaintiff “need[s] to demonstrat e that the impairment

limi ts a major

life acti vity .” Wil li ams , 534 U.S . at 19 5.

11 ADA. 5 Even if so , that conclusio n is neither remarkab le nor conclu sive here. She next claims that Gagliardo endorsed t he EEOC regula

tions defining “substantially limited.” The EEO C’s regulation s, define “sub stantially limited” as: “Significantly

restricte d as to the condition, manner or duration under which an individual

can perfor

m a par ticula r major life ac tivity

as com pared to t he conditi on, manner or duration under which the average person in the general population can perform that same major lif e activity.” 29 C.F.R. § 1 630.2(j ). The regu lations list several factors th at should b e considered in evaluating whether someon e is “substantially limited.” The se incl

ude: “(I ) The natur

e and seve

rity of the im pairm ent; (ii) The dura

tion or expect ed durati on of the im

pairm ent; (iii) The pe

rmane nt or long te

rm im pact, or the expected permanent or long term impact of or resulting from the impairm ent.” Id. § 1630.2 (j)(2). We assume that Collins is arg uing that sh e presented su fficient evid ence to support a finding that s he was subs tantia lly limited in the

major life act

ivitie s of thinking, learning, con centrating and remembering unde r the EEOC ’s regulations. H owever, in Gagliardo , we merely

mentioned the EEOC regulations. Moreover, the Supreme Court6 Gagliardo’ s “fati gue affecte d her abil ity to thi nk, focus and r emember.” 311 F.3d at 567. 12 has question ed whether any deference is owed to the EEO C’s regulation s in this regard. In Sutton v. United Air Lines, Inc. , 527 U. S. 471, 479 (199 9), t he Cour t note d that

“[n]o agency has been giv en authority to issue regu lations implementing th e generally applicable provisions of the ADA,” and, “[m]ost notably , no agency has been delegated authorit y t o interpr et the t erm ‘ disabil

ity .’” In Wil liams , 534 U.S. at 194, the Court referr ed to Sutton and noted that “[t]he p ersuasive autho rity of the EEOC reg ulations is less clear.” In any event, we do not believe th at Gagliardo supports C ollins’ claim that she is disabled under the ADA. There, in affirming the distri ct court’s denial of the em ployer’ s motion for

judgment a s a ma

tter of l aw, we expl ained: First, Gagliar

do’s phy sicia

n . . . te stifie d that the

re was no cure for MS and that MS produced Gagliardo’s fatigue. 6 [He] also expressed his opinion as an expert that Gagliardo was substantially limited in her ability to, among oth er things, learn, work, and think. Second, Ga gliardo t estifi ed she experienced mus cle spa sms a nd fatigue. Third, four of Gagliardo’s c oworkers testif ied as to her fa tigue and muscle spasms. Fourth, Gagliar

do produced evidence that her supervis or recogni zed her m emory problem s, having provided Gagliardo w ith video an d audio tap es to assist Ga gl ia rd o i n o ve rc om in g h er me mo ry p ro bl em s. La st ly, Gagliar do’s son and he

r husband simila

rly testified that

she was often fa

tigued and ha

d trouble c oncentra

ting and focusing

. 311 F.3 d at 569-7 0.7 Co llins claim s that sh e has had A DH D/A DD since c hildho od. A ssum ing tha t is

true, it would s eem that t he problems s he had at Prude ntialwould have plagued her for her enti re li fe and would have prevented her from achi eving the things she did befor e she was hired byPrudenti al. She is not like t he plai ntiff

in Gagliardo , who h ad a go od w ork hist ory untilshe develope d MS later in l ife. 13 However , Collins’ evid ence does n ot establish the k ind of limitation s evident in Gagliardo . Moreover , her cr oss-exa minat ion test imony about her wor

k, academic, and community involvement contrad icts her claim that her AD HD/ADD substantially limits her abilities t

o think, learn, remember and concentrate. 7 Dr. Harvey, the psychologist, d id diagno se her with AD HD/ADD . However , his testimony about Collins’ limitation s was simply a recitation of the thin gs Collins to ld him when he firs t inter

viewed her . He tes tified: A: Yes, t he concer ns she ra ised on the

history form tha t she completed and during the initial interview had to do with her concerns about her rate of work and productivity. She states that it alway s took her l onger to do ta sks and tha t she typic ally needed to budget extra time. She felt – she described that she would get overwhelmed with a dea

dline. She

talked a bout difficul

ties focusing. She stated that she nee ded to go over her w ork several times to make sure it was correct. S he described times when it felt like her brain kind of froze up or shut off even on a task that she knew well, she jus t couldn’t reme mber how t

o do it. She also described o rganizational d ifficulties. Dr. Harve

y di d not trea

t Collinsand his cont

act wit h her was extrem

ely limited as s he was treated by Dr. Christin e Terry. We are therefore not co nvinced th at Gagliardo sup por ts Co llin s’ AD A cla im.8 In Sutton , twin si sters , who sought to be airline pilots , were m

yopi c, a si ght impairm ent that is correc table with appropriate lense s. Because the im pairment was corrected by

either eyeglasses or contact lenses, the Court held that the s isters, who wore glas ses , wer

e not d isa bled u nder t

he ADA. 14 E. Mitigatin g measures. In Sutton v. United Airlines, Inc. , 527 U.S . 471 (19 99), the Su preme Court held that an a lleged di sability

under 42 U.S.C. § 12102(2)(A) m ust be eva

luated in light of any mitigating measures. 8 The Court wrote:

A person whose physical or m ental impair

ment is corre cted by m edicat ion or other

meas ures doesnot have an impair ment that pres ently “subs tant

ial ly lim its ” a major life a

cti vity . To be sure, a perso n whose p hysical or mental impairment is correc ted by

miti gating m

easure s still has an impair ment, but if the impairment is corrected it does not “su bstantially li mi [t ]” a m aj or li fe ac ti vi ty. 527 U.S . at 483. The distr ict cour t ruled in the alt

ernative that a

ny ADHD/

ADD impai

rment Collins may

have is corrected with m edication; thus, she is not disa bled. Collins testified that her impai rment is corr ected when she tim

ely takes he r medi cation – Adde

rol and Ambien. She admitte d that Adderol, which she takes for her ADHD/ADD, helps her “focus better,” but that it

wears off after four hours. She also testified that s he takes Ambien becau se she has troub le sleeping. Sh e is careful no t to take the Ad derol too late in the day because it will keep her a

wake. In he

r brief, Collins c laim s that s he has to t ake Ambien t o countera

ct Adderol

and, ther efore “t he medi cationsactually

make Collins9 We review the dis tri ct court ’s deci sion t o admit or e xclude evi dence under an

abu se o f dis creti on s tand ard

. Rinehimer v. Cemcolift , Inc. , 292 F.3d 375, 382 -83 (3d C ir. 2002). When a rul ing on the a dmissi on of evidence i mplicat es the i nterpr etat ion of a lega l stan dar d, su ch a s the Fed eral R ules of E vid enc e, the rev iew is ple nar y. Id.

10 Collins ’ counsel insi sts t hat Dr. Harvey

was Collins ’ tr eati ng physi cian even though Dr. H arvey is not a physician, but a psycho logist, and testified that Dr. T erry treat ed C ollin s, an d he did not . 15 more impair

ed than the

general population. ” Finall

y, Collins t

estifi ed that t

he Adderol doesn’t cure her impairment. Although we nee d not reach it, we believe t hat the di strict court’ s alte rnative holding is c orrect . The tes t for dete rmining the effec t of mit

igating m easure s is not whether the mitigatin g measures constitute a cure. F. Evidentiary issue. Collins argu es that the district cou rt erred in sustainin g Pruden tial’s objection s to two questions by which Collins’ counsel s ought to elicit expert test imony from Dr. Ha rv ey. 9 However, in a letter sent prior to trial, Collin’scounsel explicitly disclaime d any inte nt to call Dr. Harvey

as an expert witness. Counsel cl aimed, however, that Dr. Harvey should be cons idered Collins’ “treat ing phy sicia

n” 10 and permitted certain latit ude in his t

estim ony a s a tre ating phy sicia n. Prudenti al res ponded by filing a m

otion in limine seeking to p reclude Dr. H arvey from testifying at all because Collin s failed to comply with Fed.R.Civ.P. 26(a)(2). The district c ourt held that Dr. Harvey was not an expert witness. H is testimony was allowed as a treating physician and he wa s allowed to testify about his diagn osis and treatment on ly.11 Which provides: “If the witness is not test ifyi ng as an expert, the witness’ testimony i n the form of an opi nion or i nferences i s li mited t o those opi nions or infere nces which are

. . . . (b) helpful to a cl ear unders tanding of the witne ss’ t esti mony or the det erminat ion of a fact in is sue . . . .” 16 At trial, Collins’ co unsel asked D r. Harvey the follow ing two q uestions: Q: How does y

our diagnosi s of [ADD] affect Leona Collins life? Q: What di d you not

ice in c onnection with Leona Coll ins and the fa ct t hat y ou had di agnos ed her

with [ ADD]?

Prudentia l objecte d on the grounds t hat the que stions we

nt beyond diagnosisand treatme nt and required an expert opinion. The district court sustained Prudential’s objection s. Collins c oncedes t

hat thes e questi ons requir ed Dr. Har

vey to give opini on testimony , but argue s that Ha rvey ’s opinion t

estim ony wa s admi ssible

under Fed.R. Evid. 701(b). 11 In support of t

hat argum

ent, she relie s on our deci sion in Lauria v. Nat ional Railroad Pass enger Corp. , 145 F.3d 593 (3d Cir . 1998), wher e we sai d: We have not

ed . . .t hat the m odern trend favors the

admis sion of opinion tes timony , provided t hat it i s well founde d on personal kn owledge an d susceptible to specific crossexamination. The

refore, an opinion is“helpful”to the tr ier of fact within the meaning of Rule 701(b) if it aids or cla rifies an issue that the j ury would not o therwise be as co mpetent to understand. As long as the circums tances can be presented with greater clarity by stating an opin ion, then th at opinion is helpful to the trier of f act. Id. at 600-01 (citations and most in ternal quotatio ns omitted).17

However, we

decided Lauria before the 2000 amendment to Rule 701. That amendment added a new requirem ent for admissibility, subsection (c). Rule 701(c) provides t

hat if a witness i s not tes tify ing an as expert, hi s/her opinion test imony can not be “base d on scient

ific, t echnica l, or othe r speci alize d forms of knowl edge within the scope of Rule

702,” i.e ., the r

ule governing admis sibili ty of expert t

estim ony. The Advisory Comm

ittee notes to Fed.R.Evid. 701 provide: Rule 701 has be en amended to eliminat e the ri sk that t

he reliability requirements s et forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witnessclothing. Under the a mendm ent, a witness’ testimony must be scruti nized under

the rule s regula

ting exper

t opinion to the ext ent that the witne ss is pr

oviding tes timony

based on scientific, technic al, or other spec ialized know ledge within the scope of Rule 702. Fed.R.Evid. 701, 2000 Ad visory Com mittee Note. Here, the distric t court had already ruled that Dr. Harvey

was not an expert witnessand that he

could tes tify

only as to dia gnosis and t

reatm ent. Coll ins does not challenge tha t ruling. Th e questions at issu e would h ave elicited an ex pert opinio n in violation of Rule 701(c). Therefore, the district c ourt correctly sustained Prudential’s objection s. G. Pr

uden tial’s

Knowledge o f Col lin s’ D isa bil ity. Prudential arg ues that even if we find th at Collins was a q ualified ind ividual with a disability, she is not entitled to relief because it w as unaware o f that disability. Prudential argues that Collins did not even know she may be disabled until she was12 Prudenti al’s decisi ons concerni ng Collins , i. e., placement i n performance

counseli ng, job moni tori ng and refusalto tr ansfer, were made before Coll ins t old her sup er vi sor

th atshe had con ta ct ed t he OVR. 18 diagnosed with ADH D/ADD, an d that was no t until after she was fi red. That argume nt has considera ble force. See Hedber g v. Indiana Be ll Tel. Co. , 47 F.3d 928, 932 (7th C ir. 1995). As recited ear

lier, “an em

ploy er discriminates a

gainst a qualifie d individual

with a disability when the employ er does ‘not mak[e] reasonable ac commodations to the known physica l or mental limitations of the individual. . . .’” Taylor , 184 F.3d at 311 ( citing 42 U.S.C. § 1211(b) (5)(A)) (empha sis adde d). Thus, with cert ain exce ptions not r

elevant here, there can be no discrim ination under the ADA unless the employer knows that an employ ee is di sabled. Of course, Collins a rgues tha t Prudenti al knew tha

t she may have a disability

because she told her supervisor, Zale skas, that she was se eking assistance from the OVR. 12 According t

o Collins, Zaleska s responde d: “[O]h, what does that mean, we have to give you adaptati ons or accommodation.” Further , Collins claim s in her brief tha t both Zale skas and HR m anager, Colaruss o, knew that OVR was a gover

nment agency that hel ped disabl ed workers . Finall y, Collins points out tha

t Nancy Murray , the OVR repres entative, wrote a lett er that informe d Prudentia

l that Collins wasseeking accommodations bec ause of he r “cognitive statu s.” However , Collins is bein g less than fo rthright in p ressing this po int. Both Zale skas and Col arus so te sti fied w ithout cont radi cti on tha

t they did not know wha

t OVR13 Ohio College of Physici ans , and the cases i t rel ies upon ar ose under Title II I of the ADA (the public accommodations pr ovisi on), and not under Tit le I ( the employ ment provisi on) as Coll ins’ c ase does. However, the cas es are neve rthel ess rel evant t o our 19 was or what it did. Moreover, Murray ’s letter i s not as helpful as Collins claims. It was dated January

18, 2000 and Prudential received it approximately two weeks before Collins was f ired. It reads in relev ant part:

[Leona Collins] has requested and applied for vocational rehabilitati on servic es in orde r to ident ify her curr ent cognitive status and to determ ine whether or not there were any job accom

modations that could improve and enhance her employability with Prudential Investments. Even if w e interpret the letter as C ollins sugg ests, it adds little to her claim. Prudentia l received Murra

y’ s lett er on Janua

ry 21, 2000, when Coll

ins was in stage three of performance counseling and 12 day s from term ination. That same day , Prudential managers parti cipated in a conference call with an OVR representative who said only that Collins was b eing tested by OVR to see if she cou ld improve her j ob perfo rmance. Prudentia l claims tha

t prior t o its dec ision to fi

re Collins for poor per

formanc e, no one from OVR ever mentioned that Collins had a disa bility or ADHD/ADD, and Co llins does not disp ute t hat c laim. Accordingly, on this r

ecord, we do not agree that OVR’s statem ents that it was going to ass ess Coll

ins’ cognitive abilitie s are enough to inform Prudentia

l that Collins may have a disability or may need an acco mmodation. See Kalte nberger v . Ohio College of Physic ians , 162 F.3d 432 (6th Cir. 1988 ). 13analysi s. 20

Collins’ situat

ion is quit

e unlike t hat of the pl aintiff in Taylor v. Ph oenixville School District , where we d iscussed the type of no tice required b efore an emplo yer is obligated to begin the interactive proce ss with an employ ee to determine whether a

reasona ble acc ommoda

tion is necessa

ry or possibl e. 184 F.3d at

313. There, Taylor began suffer

ing from bi

polar dis order aft

er perfor ming ext raordina rily well on her

job for 20 ye ars. Asthings progr essed, her em

ploy er lea rned that she was hos pitali zed in a psychiatric institution after b ecoming manic and p sychotic at work. Clearly, those facts would p ut an employer on notice th at an employee might be suff ering from a disa bility. Collins’ case is not even remotely similar

. H. Major Life

Activit y of Working. Collins di d not clai

m that she was s ubstanti ally

limited in the

major life act

ivity of working during t

he tria l. However , she now sugge sts asmuch in he r appeal . She now claims t hat Calvin Anderson testified as her expert that she could not do corporate taxes on a full-t ime, long-ter

m basi s and that

corporat e taxesare as sociat

ed with a br

oad range of job s associated with h er associate degree in accounting . She fails to mentio n that An de rs on wa s h er ec on om ic ex pe rt , n ot a v oc at io na l o r m ed ic al ex pe rt . A cc or di ng ly, even if we were to entertain this argument fo r the first time on app eal, we wou ld find it has no merit. See Sutton , 527 U.S. at 492. V. CONCLUSION21

For all of the above reasons, we will affirm the district court’ s grant of judgment as a matte r of

law t o Pr ude ntia l on Col lins ’ AD A fa ilur e to a ccommo date claim.