                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-19-1999

Taylor v. Pathmark
Precedential or Non-Precedential:

Docket 97-7617




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Recommended Citation
"Taylor v. Pathmark" (1999). 1999 Decisions. Paper 138.
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Filed May 19, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 97-7617

JOSEPH B. TAYLOR,
Appellant

v.

PATHMARK STORES, INC.

On Appeal From the United States District Court
For the District of Delaware
(D.C. Civ. No. 96-cv-00337)
District Judge: Honorable Joseph J. Farnan, Jr.,
Chief Judge

Argued: February 9, 1999

Before: BECKER, Chief Judge, and McKEE, Circuit Judges
and LEE, District Judge.*

(Filed May 19, 1999)

       GARY W. ABER, ESQUIRE
        (ARGUED)
       Heiman, Aber, Goldlust & Baker
       First Federal Plaza, Suite 600
       702 King Street
       P.O. Box 1675
       Wilmington, DE 19899

Counsel for Appellant



_________________________________________________________________

*Honorable Donald J. Lee, United States District Judge for the Western
District of Pennsylvania, sitting by designation.
       MICHAEL F. KRAEMER, ESQUIRE
        (ARGUED)
       DEBBIE RODMAN SANDLER,
       ESQUIRE
       White & Williams, LLP
       1800 One Liberty Place
       Philadelphia, PA 19103-7395

       HAL R. CRANE, ESQUIRE
       Pathmark Stores, Inc.
       301 Blair Road
       Woodbridge, NJ 07095-0915

       Counsel for Appellee

OPINION OF THE COURT

BECKER, Chief Judge.

This case arises under the Americans with Disabilities
Act ("ADA"). The plaintiff, Joseph B. Taylor, sued Pathmark
Stores, Inc. ("Pathmark") in the District Court, alleging that
Pathmark had discriminated against him on the basis of
his disability or, in the alternative, that Pathmark wrongly
regarded him as disabled. The District Court granted
judgment as a matter of law for Pathmark on both claims.
We will affirm the District Court's judgment on Taylor's
claim that he was disabled within the meaning of the ADA,
but reverse the judgment insofar as the District Court
determined that Taylor was not regarded as disabled for the
period between December 1995 and his rehiring in July
1997. In so doing, we reaffirm that, to successfully claim
that he was wrongly regarded as disabled from working, a
plaintiff need not be the victim of negligence or malice; an
employer's innocent mistake (which may be a function of
"goofs" or miscommunications) is sufficient to subject it to
liability under the ADA, see Deane v. Pocono Med. Ctr., 142
F.3d 138, 143 n.4 (3d Cir. 1998) (en banc), although the
employer's state of mind is clearly relevant to the
appropriate remedies. We recognize, however, a limited
defense of reasonable mistake where the employee is
responsible for the employer's erroneous perception and the

                               2
employer's perception is not based on stereotypes about
disability. Under these tests, material issues of fact remain
for resolution at trial.

Because of its structure and subject matter, the ADA is
often a difficult statute for courts and employers to
interpret and, sometimes, to follow. This case is also a
difficult one, not only conceptually but also because of the
odd (if not convoluted) factual background, punctuated by
glitches and apparent misinterpretations of medical
records, to which we now turn.

I. Factual Background

Taylor began working at Pathmark in May 1981 and was
eventually promoted to frozen food manager. In December
1991, he slipped on a piece of cellophane at work and
strained his right ankle. His doctor instructed him to rest
the ankle for ten minutes each hour, and to refrain from
walking or standing for extended periods of time. Taylor
aggravated the injury in January 1992 when he fell down a
flight of stairs. He took time off from work, and when he
returned in November 1992 he was told that the frozen food
manager post had been filled during his absence. In the
following months, he was given various light duty
assignments that accommodated his limitations. He
stocked shelves, occasionally sitting on a milk crate to do
so, and worked in the service center, which allowed him to
sit at a desk for a portion of the day. He was often allowed
to work on the "bag your own" register at which customers
bagged their groceries and he could sit on a stool. In
November 1993, Taylor had arthroscopic surgery, a
minimally invasive procedure, on his ankle.

The parties have stipulated that Taylor has a 16%
permanent disability in his right ankle. When he was
working on light-duty assignments, Taylor wore either an
air cast or a cast type shoe, and when he exceeded his
limits on standing and walking for more than fifty minutes
an hour, he used a crutch or cane. Pathmark allowed this
periodic resting and use of a crutch or cane until April 29,
1994. While accommodated in this fashion, Taylor was
productive and Pathmark's manager considered him a
problem-free employee.

                               3
In early March 1994, Taylor's store manager asked him
to provide an updated note from his doctor setting forth any
continuing restrictions on work assignments. His family
doctor, Dr. Moore, provided a note stating that Taylor could
continue to work, but without prolonged standing. Later
that month, without Taylor's knowledge, Pathmark's
corporate headquarters sent a request for an updated
record for Taylor to his orthopaedic specialist, Dr. Gelman.
Dr. Gelman replied, in an April 7, 1994, letter, that he had
not seen Taylor since December of 1993 but that he
believed that Taylor could return to work without any
restrictions, basing his opinion on the fact that Taylor had
not returned to see him.

Relying on Dr. Gelman's letter, Taylor's manager told him
on April 29 that he had to work a full-duty cash register for
a day. Taylor felt that he could not comply, refused, and
eventually left the store. He contacted Pathmark's workers'
compensation representative and learned for thefirst time
of Dr. Gelman's letter. He sought an examination with Dr.
Gelman, after which, on May 5, the doctor sent Pathmark
another letter stating that Taylor could engage in "full-time
work--limited standing." Pathmark's administrative offices,
however, never forwarded the letter to Taylor's manager and
he was not asked to return to work. Pathmark's internal
email suggested that there was a "glitch" in this series of
events because of Dr. Gelman's initial problematic
evaluation. Taylor's store manager likewise admitted that
Dr. Gelman's first letter was incorrect and that Dr. Moore's
note was probably more accurate, but the manager was
never given Dr. Gelman's updated note of May 5. When
Taylor called his manager about getting back on a work
schedule, his manager told him, "I don't care."

On May 27 and September 2, 1994, Pathmark sent
Taylor to Dr. Case, an orthopaedic surgeon. After the first
visit, Dr. Case wrote to Pathmark counsel that Taylor could
work with restrictions, but Pathmark did not invite him to
return to work. After the September visit, Dr. Case told
Pathmark that Taylor could return to work with an air splint.1
_________________________________________________________________

1. There is testimony in the appellate record that Case's report said that
Taylor used an air splint while working, but no testimony that Case
instructed Taylor to do so.

                               4
Pathmark apparently took no action for approximately one
year thereafter.

In September 1995, Pathmark's ADA Committee
evaluated Taylor and sent Dr. Moore a questionnaire asking
about Taylor's restrictions. Dr. Moore reported to the
committee on October 5, 1995, that Taylor was temporarily
subject to increased work restrictions due to an aggravation
of his ankle injury in July 1995. The form Pathmark
provided allowed him to check either "permanent" or
"temporary," and Dr. Moore checked "temporary," writing in
that the restrictions would last for six months or more.
Taylor wrote to Pathmark on December 19, 1995,
representing that his temporary restrictions had been lifted
and that he could work under his permanent limitations as
he had been doing prior to April 1994. The evidence was
that Pathmark's ADA Committee evaluated his case in late
1995, but took no action on it for approximately seven
months, for reasons that are not apparent.

Pathmark fired Taylor by letter dated May 13, 1996. The
letter, which was written by the ADA Committee, stated
that Taylor's inability to work "effectively severs your
employment relationship with Pathmark as of May 13,
1996." The letter recited that Dr. Moore's restrictions
allowed Taylor to: stand one hour at a time up to four
hours a day; walk one hour at a time not to exceed one
hour a day; lift, carry, push, and pull ten pounds
frequently, up to twenty pounds occasionally, and never
over twenty pounds; and occasionally bend, squat, climb,
and reach. The letter further stated that Taylor's
restrictions precluded crawling or repetitive pushing and
pulling of leg controls and required breaks to be taken as
necessary. The letter continued that, comparing the
restrictions with the physical requirements of the frozen
food manager job,

       [t]hese restrictions on your work related activities are
       such that any reasonable accommodation which
       Pathmark might provide are insufficient to enable you
       to function to standard in your position as a Frozen
       Food Manager which regularly requires:

       * Regularly lifting and carrying 25 pounds

                                5
       * Frequently stooping, crouching and reaching

       * Extended standing and walking

        Furthermore, your restrictions are such that you
       cannot perform the essential functions of any other
       available position, all of which require extended
       standing and/or walking and regular reaching. We
       have been advised your restrictions are permanent.

App. at A55-56 (emphasis added).

After Taylor received this letter, he contacted Dr. Moore,
who clarified his position that Taylor had been temporarily,
but not permanently, heavily restricted and that Taylor
could work with either ten minute rest breaks per hour or
the use of a cane or crutch. Pathmark asked Dr. Moore to
fill out a new capabilities form, which he did on June 19,
1996, restating these restrictions, but Taylor was not
reinstated. There was testimony that the ADA Committee
realized that its May 13 letter was mistaken, but it never
reconsidered Taylor or looked into giving him a cashier's job
with a stool, though he could have been accommodated.
Instead, the Committee referred the matter to Pathmark's
legal department and heard no more about it. Meanwhile,
Pathmark's workers' compensation department was
insisting that he could return to work full-time. From 1994
on, Taylor had regularly contacted Pathmark, asking for
work, and his union representative had also tried to get
him back to work. After he was fired, he brought this suit.
He was rehired in July 1997, during the pendency of this
litigation, and is currently employed as a third-shift non-
foods clerk.

Taylor argues that Pathmark should have given him a job
that he could do. Pathmark's Store Operations Employment
Compliance Manual provides for reasonable accommodation
in cashier positions for people who have trouble standing
for extended periods. Pathmark's ADA Training for
Management Associates manual also suggests that stools
are reasonable accommodations for people who cannot
stand for long periods. Taylor's last store manager conceded
that when Taylor was out on disability he should have been
considered for a cashier position with a stool. Moreover,
Taylor and his vocational expert, Thomas Yohe, offered

                               6
testimony that the frozen food manager job requires a
significant amount of book work, sales planning, schedule
writing, looking up orders, checking bills, preparing signs,
and using a computer, all of which can be done while
sitting. This amounts to forty-five minutes to an hour of
sitting per day. Combined with sitting during Taylor's
morning, afternoon, and lunch breaks, which amount to
forty minutes per day, Taylor argues that he would be off
his feet ten minutes per hour without accommodation.
Yohe testified that Taylor's restrictions could be
accommodated in his previous Pathmark jobs, including
the frozen food manager job, with the "minor"
accommodation of allowing him to use a milk crate to sit on
or to prop up his foot.

After Taylor had presented his evidence at trial, the
District Court granted "summary judgment" for Pathmark.
It would be more accurate to state that the District Court
granted a motion under Fed. R. Civ. Proc. 50(a). Because
the District Court dismissed the case after Taylor presented
his evidence to a jury, Pathmark suggests that we should
give increased deference to the trial judge. Unsurprisingly,
Pathmark cites no authority for this proposition and, since
Taylor's claims were not in fact evaluated by his chosen
finder of fact, we disagree. At all events, Pathmark concedes
that the proper test is the standard one: We must view the
facts in the light most favorable to Taylor.

II. Was Taylor "Disabled" Under the ADA? (Was He
      Substantially Limited in the Major Life Activities of
       Walking and Standing?)

Taylor's first theory is that he has a "disability" under the
ADA, which covers impairments that substantially limit a
major life activity. EEOC regulations provide, and no one
here contests, that walking and standing are major life
activities. See 29 C.F.R. S 1630.2(1) App. (1996).
"Substantial limitations" are those that render an individual

       (i) unable to perform a major life activity that the
       average person in the general population can perform;
       or

                               7
       (ii) significantly restricted as to the condition, manner
       or duration under which an individual can perform a
       particular major life activity as compared to the
       condition, manner or duration under which the average
       person in the general population can perform that
       same major life activity.

29 C.F.R. S 1630.2(j)(1) (1996). The relevant factors are (1)
the nature and severity of the impairment; (2) the duration
or expected duration; and (3) the expected or actual
permanent or long-term impact of or resulting from the
impairment. See 29 C.F.R. S 1630.2(j)(2). The impairment
must be severe when compared to the functioning of the
general population. The purpose of the ADA would be
undermined if protection could be claimed by those whose
relative severity of impairment was widely shared. See
Forrisi v. Bowen, 794 F.2d 931, 934 (4th Cir. 1986). On the
other hand, Congress expressed a strong remedial intent in
enacting the ADA, and explicitly found that approximately
forty-three million Americans were disabled as of 1990, see
42 U.S.C. S 12101(a)(1) (1998), which implies that the
definition should not be so restricted that only the most
extremely impaired are covered.

Taylor testified that he walks with a slight limp and
requires ten-minute hourly breaks when standing or
walking. His girlfriend, however, testified that he regularly
takes walks after dinner and stated that he does not
require a cane or crutch. The District Court concluded that
Taylor did not have a disability. Taylor objects that the
District Court drew incorrect inferences from his girlfriend's
testimony. She testified that Taylor takes the car out for
one-and-a-half to three hours after dinner, that she did not
know how much time he actually spent walking because
she was not with him, and that he carries a walking stick.
Thus, he argues, a jury could infer that he cannot walk
unassisted for long periods of time.

Even considering this testimony in the light most
favorable to Taylor, the court's conclusion is sensible. The
court noted that there was no testimony that Taylor stands
or walks, during the fifty minutes per hour that he can,
with any less ability than the average person. The EEOC's
regulations define a person with a walking disability as

                               8
someone who "can only walk for very brief periods of time."
29 C.F.R. S 1630.2(j) App; cf. Deane, 142 F.3d at 143 n.4
(regulations are entitled to substantial deference). We agree
with the District Court that fifty minutes (per hour) is not
a "very brief" period.

In Kelly v. Drexel University, 94 F.3d 102 (3d Cir. 1996),
we found that a man who limped as a result of a hip injury,
could not walk more than a mile, and had to climb stairs
slowly was not disabled. We concluded that the restrictions
on his ability to walk were "comparatively moderate," citing
several district court cases that rejected similar claims. Id.
at 106. Pathmark has also cited other cases in which
walking problems were found not to constitute covered
disabilities. See, e.g., Oesterling v. Walters, 760 F.2d 859,
861 (8th Cir. 1985) (a woman whose varicose veins
prevented her from standing or walking for long periods
was not disabled under the Rehabilitation Act's similar
definition); Penchisen v. Stroh Brewing Co. , 932 F. Supp.
671, 674 (E.D. Pa. 1996) (a woman with a metal plate in
her left ankle who could not fully flex her foot or walk with
a normal gait was not disabled), aff'd, 116 F.3d 469 (3d
Cir.), cert. denied, 118 S. Ct. 178 (1997).

Taylor argues that Pathmark only allows one break every
two hours and that his need for a break every hour makes
him function at less than fifty percent of a typical Pathmark
employee. The District Court responded that the standard
is one of comparison to the "average person in the general
population." 29 C.F.R. S 1630.2(j)(1) (1996). Taylor
presented no evidence that Pathmark employees resembled
the general population in average ability, though he did
plausibly argue that Pathmark employed people of average
ability. The more important point is that Taylor is mixing
scales of measurement. That he can only stand for half as
long as the average Pathmark employee, or average person,
is not necessarily proof that he is substantially impaired in
his ability to stand. The relevant question is whether the
difference between his ability and that of an average person
is qualitatively significant enough to constitute a disability.
Because Taylor can stand and walk for fifty minutes at a
time, and can continue for longer periods if he takes a
break every hour, he can carry out most regular activities

                               9
that require standing and walking, even though he may
not be able to perform Pathmark's jobs without
accommodation. We conclude that his ability to walk and
stand is not significantly less than that of an average
person.

Taylor finally argues that the employee in Kelly had no
evidence that he used any special device, cane, or crutches
to aid in walking. By contrast, Taylor needs a cane or
crutch after fifty minutes and uses a prosthetic shoe to
ease his pain and discomfort. Under our jurisprudence, the
determination whether a disability exists must be made by
evaluating a person's impairment as it affects major life
activities without the use of mitigating measures, even if
the person uses such mitigating measures in regular
activity. See Matczak v. Frankford Candy & Chocolate Co.,
136 F.3d 933 (3d Cir. 1997).2 Taylor contends that the
District Court improperly took mitigating measures into
account when determining his abilities by failing to note
that Taylor needed ameliorative footwear to maintain his
present level of mobility.

If Taylor had needed a cane or crutch to stand forfifty
minutes an hour, his argument would be persuasive. But
there is no evidence that Taylor required an assistive device
to stand or walk for at least fifty minutes an hour. If he
wanted to stand for longer, he needed a cane or crutch, but
someone like Taylor who can stand for fifty minutes
unassisted is not substantially limited in standing, and
thus his need for assistance to improve his performance
does not show that he has a disability. As for the air
cast/cast type shoe, Pathmark argues that no doctor ever
ordered him to use such devices, and that if he did so for
his own comfort that cannot prove his disability. See
Douglas v. Victor Capital Group, 21 F. Supp. 2d 379
(S.D.N.Y. 1998) (plaintiff used cane or crutches on
occasion, but there was no evidence he was medically
required to do so, and voluntary use could not meet his
burden of proof). We have not been able to find evidence in
_________________________________________________________________

2. The Supreme Court will decide this issue shortly. See Sutton v. United
Air Lines, Inc., 119 S. Ct. 790 (1999), granting cert. to 130 F.3d 893
(10th
Cir. 1997).

                               10
the record that a doctor ordered Taylor to use an air cast,
and we believe that occasional use of an air cast to
diminish discomfort does not raise Taylor's condition to the
level of a disability.3 Therefore we will affirm the District
Court's judgment on the issue of whether Taylor was
actually substantially limited in the major life activity of
walking.

III. Was Taylor "Regarded as" Disabled?

A person is "regarded as" having a disability if the
person:

       (1) Has a physical or mental impairment that does not
       substantially limit major life activities but is treated by
       the covered entity as constituting such limitation;

       (2) Has a physical or mental impairment that
       substantially limits major life activities only as a result
       of the attitudes of others toward such impairment; or

       (3) Has [no such impairment] but is treated by a
       covered entity as having a substantially limiting
       impairment.

29 C.F.R. S 1630.2(l) (1996). Taylor argues that Pathmark
regarded him as disabled by virtue of the ADA Committee's
determination that he was too impaired to take any
Pathmark job, with or without accommodation.

The gravamen of Taylor's claim is that Pathmark
perceived Taylor as disabled based on a mistaken
interpretation of his medical records, specifically Dr.
Moore's October 1995 physical capacity evaluation, wherein
_________________________________________________________________

3. See supra note 1. The most direct evidence on this point comes from
Dr. Moore's note to Cynthia Jackson, who apparently was in charge of
authorizing Taylor's medical expenses for Pathmark's insurer. Dr. Moore
requested that Taylor be authorized to visit a podiatrist for his ankle
pain and wrote, "Hopefully, only conservative measures will be needed
such as a brace or an orthotic." Taylor has identified no further evidence
that such a visit was authorized or what came from it, and he testified
that his need for an air cast was only occasional. Under these
circumstances, we conclude that no material issue of fact exists about
his medical need for an assistive device to stand for shorter periods.

                               11
the doctor checked the box marked "temporary" and the
Committee responded with a letter stating "We have been
advised your restrictions are permanent." The October 1995
evaluation, which occurred after Taylor temporarily
aggravated his ankle, described severe limitations on many
important activities such as lifting and walking, limits that
were far greater than those imposed by Taylor's permanent
ankle impairment. A reasonable jury could therefore
conclude that Pathmark erroneously regarded him as
disabled. As Taylor notes, the statement in Pathmark's May
1996 letter that he was unable to perform any Pathmark
job, even with accommodation, suggests a perception of
limits that would likely constitute substantial limitation on
many major life activities. This is not a case where
Pathmark stated that he was unable to perform a particular
job; it appears to have considered him incapable of
performing a wide range of jobs, indeed, any jobs that
required significant standing, walking, lifting, or moving
about (i.e., most jobs in a supermarket).

Several cases support our conclusion that, in general, an
employer's perception that an employee cannot perform a
wide range of jobs suffices to make out a "regarded as"
claim. In Dipol v. New York City Transit Authority, 999 F.
Supp. 309, 314 (E.D.N.Y. 1998), the court found that the
plaintiff had proved a "regarded as" claim when, after
receiving information from the plaintiff's doctor, the
employer immediately placed the plaintiff on no-work
status, excluding him from all jobs. In Coleman v. Keebler
Co., 997 F. Supp. 1102, 1114 (N.D. Ind. 1998), the court
held that evidence that the defendant concluded that the
plaintiff could not perform any available jobs in a
production plant created a material issue of fact on a
"regarded as" claim. More generally, if an impairment at a
certain level of severity would constitute a disability, then it
follows that an employer who perceives an employee as
having such an impairment perceives the employee as
disabled. Cf. 29 C.F.R. pt. 1630 App., S 1630.2(j) ("An
individual who has a bad back that prevents the individual
from performing any heavy labor job would be substantially
limited in the major life activity of working because the
individual's impairment eliminates his or her ability to
perform a class of jobs.").

                               12
The District Court, however, rejected Taylor's "regarded
as" claim. The court reasoned:

       The thrust of Plaintiff's claim . . . is based on
       Defendant's failure to accommodate Plaintiff's physical
       impairment. Plaintiff asserts that based on Dr.
       Gelman's April 7th note, which stated that Plaintiff
       could work without restrictions, Defendant demanded
       on April 29, 1994 that Plaintiff perform the cashier's
       job. Plaintiff contends that he could not perform the
       cashier's job as requested because he was substantially
       limited in a major life activity and therefore disabled
       . . . . On the other hand, Plaintiff argues that he was
       wrongfully "regarded as" disabled by his employer with
       respect to him being employed in the frozen food
       manager's job, which Plaintiff asserts he could have
       done without any accommodation by the Defendant.
       . . .

        Essentially, the Plaintiff is asking the Defendant to
       treat him as disabled under the ADA if he is assigned
       to a job other than frozen food manager. In sum, when
       Plaintiff was initially injured, he provided his medical
       restrictions to the Defendant. Plaintiff worked for a
       period of fifteen months asserting these restrictions
       and Defendant accommodated him. Subsequently,
       when Defendant learned, from a doctor's note, that
       Plaintiff was purportedly no longer disabled, Defendant
       regarded Plaintiff as able, and requested that Plaintiff
       perform a job affording no accommodation for his
       impairment. Plaintiff then asserted that he was
       disabled. Plaintiff now claims that he was not disabled
       and should not have been regarded as such by the
       Defendant in the context of Plaintiff 's desire to be
       assigned as a frozen food manager.

        Plaintiff proposes an apparently impossible situation
       for an employer. On the one hand, an employer must
       acknowledge the medical restrictions needed by an
       employee, while on the other hand it must ignore those
       same medical restrictions when the employee believes
       the restrictions might affect his assignment to a
       desired position.

                               13
Slip op. at 14 (citations omitted).

We will first consider the District Court's reasoning about
the conflicts between Taylor's two claims and the time
frame of his "regarded as" claim, and then turn to a
broader analysis of "regarded as" protection under the ADA.

A. Allegedly Inconsistent Claims

We conclude that this set of facts was insufficient to
support a directed verdict for the defendant. The District
Court concluded that Taylor was proffering both a theory
that he was disabled and a theory that he was
wrongly regarded as disabled, which theories undercut one
another. However, a plaintiff may plead in the alternative,
and our caselaw finds no difficulty with pairing the two
claims in one complaint. In Olson v. General Electric
Astrospace, 101 F.3d 947 (3d Cir. 1996), we expressed no
discomfort in denying summary judgment on a "regarded
as" claim where the plaintiff had also alleged actual
disability, although "the evidence that was apparently
offered to demonstrate [his] fitness as an employee
ironically establishes that he was not substantially limited
in a major life activity." Id. at 953. Similarly, in Arnold v.
United Parcel Service, Inc., 136 F.3d 854, 860, 862 (1st Cir.
1998), the court held that there is no conflict in bringing an
actual disability and a "regarded as" claim together. See
also Koblosh v. Adelsick, No. 95C5209, 1996 U.S. Dist.
LEXIS 17254, at *15 (N.D. Ill. Nov. 20, 1996) (same).

The possibility that a plaintiff will bring both an actual
disability and a "regarded as" claim is simply one allowed
by the law; its possible abuse must be checked by the
standard measures for deterring frivolous or bad-faith
complaints. Nor is Taylor's position intrinsically
contradictory, as he could have an impairment (whether or
not it rose to the level of a disability) that could actually be
accommodated, despite Pathmark's perception that his
disability was too severe to accommodate.

At all events, we disagree with the District Court's
description of Taylor's claims. Taylor did not claim that he
was "not disabled" with respect to the frozen food manager
job, as the court suggested; he claimed that the job's
requirements did not interact with his disability in a way

                               14
that prevented him from doing the job or that required
accommodation (beyond allowing him to rest his leg on a
milk crate from time to time, a measure that may not even
technically be an accommodation and that we discuss
further infra). The distinction is highlighted by the example
of a deaf person who claims that he is qualified for a job
that involves converting handwritten notes into word
processing files: He would not be "not disabled" with
respect to the job, because disability is not a job-specific
determination, but the job would not be affected by his
disability.

The District Court also believed that Taylor was putting
Pathmark in an impossible situation because Pathmark
would be potentially liable if it accommodated Taylor or if it
refused to accommodate him. However, Pathmark would
not be liable for accommodating Taylor. It is only liable if it
wrongly regarded him as so disabled that he could not work
and therefore denied him a job.

The accommodations that Pathmark provided or might
have provided are not part of Taylor's "regarded as" claim.
Taylor does not attempt to rely on Pathmark's pre-April
1994 accommodations of his condition to prove his
"regarded as" claim, nor should he. An employer may
decide to accommodate people who are not "disabled" under
the ADA. If the District Court is concerned about the
possibility of jury confusion on this issue, it might be
appropriate to instruct the jury that Pathmark's voluntary
accommodations, which are apparently formalized and
routinized in Pathmark's employment manuals, are not
evidence of a perception of disability.

B. The Time Frame of the "Regarded as" Claim

We agree with the District Court that Pathmark regarded
Taylor as able to work on April 29, 1994, but that is not
material to Taylor's "regarded as" claim. Taylor's claim is
that Pathmark erroneously regarded him as entirely and
permanently unable to work at any job after it received Dr.
Moore's evaluation in September 1995; his "regarded as"
claim must be limited to the period following that
evaluation. Taylor claims that he was not, in fact, so
disabled that he could not perform any Pathmark jobs.

                               15
Taylor notes that he provided Pathmark with a letter on
December 19, 1995, that stated that his restrictions as of
December 1995 were the same as they had been during the
November 1992-April 1994 period when he was working at
Pathmark. The temporary July to December 1995
restrictions had been lifted. A reasonable factfinder could
conclude that Taylor was not so impaired that he could not
work at all after that point, and therefore that Pathmark's
misunderstanding of his condition prevented him from
getting work at Pathmark for some period after December
19, 1995. Under this scenario, Taylor had a viable
"regarded as" claim after that date.

C. Liability for Mistakes

What a "regarded as" plaintiff must do to put the
employer on notice that its perception is erroneous is an
extremely difficult question. Pathmark in effect argues that:
(1) until Taylor provided definitive notice of his ability to
work and corrected Pathmark's belief, it cannot be held
liable for considering him unable to work; and (2) his
provision of notice proves that Pathmark correctly
understood his condition after that point. We deal with
Pathmark's second claim infra Section III.E, while in this
section we make clear that Pathmark has the initial
responsibility to evaluate employees correctly.

Pathmark argues that reliance on information given by
the plaintiff (or the plaintiff's agent) cannot found an ADA
"regarded as" cause of action. As Pathmark puts it, "For as
long [as] Dr. Moore's report led Pathmark to believe that
Taylor required a sedentary position, Pathmark was entitled
to act accordingly." Pathmark's broad assertion cannot
carry the day under the peculiar facts of this case. In most
"regarded as" cases, it is likely that information on an
employee's abilities comes from the employee or his agent,
but the source of the information will not necessarily be
determinative. The fact is that Dr. Moore's report labelled
Taylor's restrictions "temporary," not permanent. At all
events, Taylor never provided Pathmark with the conclusion
that he was substantially limited in a major life activity
such that there were no jobs at Pathmark that he could
perform, with or without accommodation. This case is
dominated by miscommunications and misinterpretations,

                               16
and one of the points of "regarded as" protection is that
employers cannot misinterpret information about an
employee's limitations to conclude that the employee is
incapable of performing a wide range of jobs.

We find the cases Pathmark cites on reasonable reliance
to be inapposite. In Wooten v. Farmland Foods, 58 F.3d 382
(8th Cir. 1995), for example, the court held that the
evidence of an employer's perception of an employee's
abilities based on a doctor's note provided by the employee
was insufficient to establish a "regarded as" claim. The
court held that Wooten's employer's perceptions were not
based on stereotype or myth but on a doctor's written
restrictions. But the law in this circuit is that a"regarded
as" plaintiff can make out a case if the employer is
innocently wrong about the extent of his or her impairment:

       Although the legislative history indicates that Congress
       was concerned about eliminating society's myths, fears,
       stereotypes and prejudices with respect to the disabled,
       the EEOC's Regulations and Interpretive Guidelines
       make clear that even an innocent misperception based
       on nothing more than a simple mistake of fact as to
       the severity, or even the very existence, of an
       individual's impairment can be sufficient to satisfy the
       statutory definition of a perceived disability. Thus
       whether or not [the defendant] was motivated by myth,
       fear or prejudice is not determinative of [the plaintiff 's]
       "regarded as" claim.

Deane, 142 F.3d at 144 (citation omitted).

Similarly, Riemer v. Illinois Department of Transportation,
148 F.3d 800 (7th Cir. 1998), sustained a "regarded as"
claim where the employer's misperception about the effects
of the plaintiff 's asthma, based on a doctor's report, led it
to exclude the plaintiff from an entire class of jobs, and in
Johnson v. American Chamber of Commerce Publishers, Inc.,
108 F.3d 818 (7th Cir. 1997), the court wrote, "If for no
reason whatsoever an employer regards a person as
disabled--if, for example, because of a blunder in reading
medical records, it imputes to him a heart condition he
never had--and takes adverse action, it has violated the
statute . . . ." Id. at 819; see also Dipol, 999 F. Supp. at 314

                               17
(the fact that the employer, after receiving information from
a doctor, immediately placed the plaintiff on no-work status
made out a "regarded as" claim); Mendez v. Gearan, 956 F.
Supp. 1520, 1525 (N.D. Cal. 1997) (employer's mistaken
perception that a temporary impairment was permanent
could found a "regarded as" claim).4

We acknowledge the force of Pathmark's argument that it
relied on information supplied by Taylor's doctor in
concluding that it had no job available that met his
restrictions during the period from October 1995 to
December 1995 (Taylor informed Pathmark that the severe
restrictions had been lifted on December 19). Taylor has
not disputed that he did, in fact, have those temporarily
heightened restrictions after the aggravation of his ankle
injury. We conclude that a directed verdict as to that period
was proper, because he has not disputed Pathmark's claim
that restrictions of such severity precluded him from any
Pathmark jobs, even with accommodation.

Pathmark further argues that it was reasonable to rely on
Dr. Moore's first evaluation until June 1996, when Dr.
Moore filled out an updated questionnaire.5 We cannot,
however, say that Pathmark's reliance on Dr. Moore'sfirst
report necessarily excuses it entirely from liability. An
employer can rely on an employee's information about
restrictions, but it has to be right when it decides that
those restrictions are permanent and that they prevent the
employee from performing a wide class of jobs, as opposed
_________________________________________________________________

4. Dotson v. Electro-Wire Products, Inc., 890 F. Supp. 982 (D. Kan. 1995),
another case cited by Pathmark, is distinguishable. In that case, the
physician's note at issue did not describe an impairment that could
reasonably be thought to substantially limit the plaintiff in a major life
activity. On receipt, the defendant did not change the plaintiff 's job
duties or take other actions to indicate that it considered her incapable
of doing the general class of job. See id. at 991. In contrast, Pathmark
sent Taylor a letter saying that his restrictions were permanent and that
he was fired.

5. Pathmark characterizes this second questionnaire as a "changed"
diagnosis. This is arguably a critical misdescription, since Taylor
contends that Dr. Moore's restrictions were always temporary, as he
indicated on the first form, and so the second form simply reflected the
fact that the temporary restrictions had been lifted.

                               18
to one particular and limited job. An employer who simply,
and erroneously, believes that a person is incapable of
performing a particular job will not be liable under the
ADA. Liability attaches only to a mistake that causes the
employer to perceive the employee as disabled within the
meaning of the ADA, i.e., a mistake that leads the employer
to think that the employee is substantially limited in a
major life activity.

Pathmark argues that imperfection in its internal
procedures--apparently a communication gap between the
ADA Committee and those responsible for making an
employment decision about Taylor--should not lead to ADA
liability. Yet if the relevant decisionmakers wrongly believed
that Taylor was completely unable to work because of
miscommunication within Pathmark, the ADA puts on
Pathmark the burden of correcting the problem, rather
than leaving Taylor out in the cold. Cf. Deane, 142 F.3d at
149 (suggesting that informal cooperation and
communication to correct mistakes is appropriate in a
"regarded as" situation). Taylor offered Pathmark updated
information on his condition on December 19, 1995, and he
had Dr. Moore send further information after he received
Pathmark's May 1996 letter; therefore, we cannot say that
he is unarguably responsible for the misunderstanding.

Except for the limited period noted above, judgment as a
matter of law for Pathmark is inappropriate, because a
reasonable jury could find that Taylor was not responsible
for the error. In that case, Pathmark could be liable, even
if its mistake were otherwise innocent. But on remand,
Pathmark has a possible defense of reasonability, which we
describe in greater detail in the next section.

D. A Limited Reasonability Defense

Because the ADA imposes extensive requirements on
employers and covers a broad range of conditions, new
puzzles seem to arise from every case. Deane announced
our conclusion that employer mistakes can lead to
"regarded as" liability. The question then becomes: What
limits, if any, are there to this principle? There are no clear
answers in our precedent, the statute, the legislative
history, or the EEOC's interpretive guidelines. We must,

                               19
however, answer the question to resolve this case. We
believe that guidance can be found in the general logic of
the ADA, which requires an interactive relationship between
employer and employee, and concomitantly requires an
individualized evaluation of employees' impairments. See
Taylor v. Phoenixville Sch. Dist., No. 98-1273, ___ F.3d ___,
1999 WL 184138 (3d Cir. Apr. 5, 1999).6

While prejudice is not required for a successful"regarded
as" claim, we recognize that the ADA has as a major
purpose the protection of individuals who are subject to
stereotypes about their abilities. An employer who regards
a kind of impairment--epilepsy, for example--as
disqualifying all people affected by the impairment for a
wide range of jobs is thus not entitled to a defense of
reasonable mistake; under the ADA, it is the employer's
burden to educate itself about the varying nature of
impairments and to make individualized determinations
about affected employees. However, there is no evidence in
this case that Pathmark decisionmakers were infected with
stereotypes or prejudice against the disabled. In situations
such as this one, which do not involve prejudice, we think
that a limited defense best serves the aims of the ADA: If
the employer is factually mistaken about the extent of an
employee's impairment, and the employee or his agent is
responsible for the mistake, the employer is not liable
under the ADA.7
_________________________________________________________________

6. We are also influenced by the Supreme Court's decisions in Faragher
v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries,
Inc.
v. Ellerth, 524 U.S. 742 (1998). In those cases, the Court determined
that general principles of agency law justified imposing Title VII
liability
on employers for sexual harassment committed by supervisors, but
defined an affirmative defense to liability in order to give employers
incentives to create effective anti-harassment programs. The details of
the defense were dictated by concerns for logic and equity, not by Title
VII's explicit provisions. We take the same path here.

7. We note that it will not always be immediately clear whether a
particular physician is an employee's agent. For example, whereas in
Delaware, a worker seeking workers' compensation has a right to select
an independent physician, see 19 Del. Code Ann. S 2323 (1998), the
Pennsylvania Workers' Compensation Act allows an employer to
establish a list of designated physicians or health care providers, and an

                               20
We emphasize that it is not reasonable for an employer to
extrapolate from information provided by an employee
based on stereotypes or fears about the disabled, and we
think that the distinction between the effects of a type of
impairment and an impairment's extent adequately
captures the distinction: A belief that anyone with bipolar
disorder or HIV infection is substantially limited in a major
life activity is a conclusion about the effects of the
impairment and only secondarily about the particular
employee. An employer with such a belief is failing to make
an individualized determination, as the ADA requires, and
thus acts at its peril. If an employer believes that a
perceived disability inherently precludes successful
performance of the essential functions of a job, with or
without accommodation, the employer must be correct
about the affected employee's ability to perform the job in
order to avoid liability; there is no defense of reasonable
mistake. Any other outcome would defeat the ADA's
attempt to eradicate what may be deeply rooted and
seemingly rational presumptions about the abilities of the
disabled.

By contrast, a mistake about the extent of a particular
employee's impairment made in the course of an
individualized determination is further from the core of the
ADA's concern, and a reasonability defense adequately
protects employees' interests in not being erroneously
regarded as disabled. We reaffirm that an employer is liable
for mistakenly regarding an employee as disabled, unless
the employer's perception is based on the employee's
_________________________________________________________________

employee may be required to visit one of those on the list in order to
maintain a workers' compensation claim, see 77 Pa. Stat. Ann. S 531(1)(I)
(1998). An employer's employment, ownership, or control of such
physicians or health care providers must be disclosed in order for them
to be placed on the list. Even if the providers on the list are
independent,
if the employer designates them and relies on their judgments, the onus
may well be on the employer, rather than the employee, to correct their
mistakes. It is also possible that the list will consist of independent
providers negotiated by the employees' labor union and the employer.
See 77 Pa. Stat. Ann. S 1000.6(a)(3) (1998). We express no opinion on all
these agency issues, which are not present here and will have to be
resolved on a case-by-case basis.

                               21
unreasonable actions or omissions. The limited exception to
liability for mistakes can be expressed as follows: If an
employer regards a plaintiff as disabled based on a mistake
in an individualized determination of the employee's actual
condition rather than on a belief about the effects of the
kind of impairment the employer regarded the employee as
having, then the employer will have a defense if the
employee unreasonably failed to inform the employer of the
actual situation.8

This rule is consistent with our decision in Deane, in
which we emphasized the employer's failure to take
reasonable steps to learn the true extent of the plaintiff 's
impairment. See Deane, 142 F.3d at 145. In Deane, we
found a genuine issue of material fact as to whether the
plaintiff had been perceived as disabled where the record
documented confusion among the relevant decisionmakers
as to the extent of the plaintiff 's physical impairment. See
Deane, 142 F.3d at 145. Pathmark attempts to distinguish
Deane by noting that the defendants in that case relied on
a short phone conversation with the plaintiff to conclude
that she could not perform any available job. The Deane
court noted that the defendants did not evaluate the
plaintiff, contact her physician, or independently review her
medical records, but relied on one phone conversation with
her. See Deane, 142 F.3d at 145. By contrast, Pathmark
relied on Dr. Moore's medical report.

The Deane facts do not define the outer limits of liability.
Pathmark apparently made a significant error in treating
_________________________________________________________________

8. We recognize that there is a continuum of perceptions and that there
will be difficult cases, but we think that our formulation provides
appropriate guidance. For example, an employer who is informed that a
particular individual has epilepsy might overestimate the limiting effects
of that individual's epilepsy because of a general perception about the
severity of epilepsy. If the employer mistakenly overestimates the degree
of a person's impairment based on perceptions about the nature of the
impairment, it is not basing its decision on an individualized evaluation.
Moreover, the employer's defense would fail in such a case because the
employee would have done nothing unreasonable in informing the
employer of her condition. The employer should seek further specific
information about the extent of the employee's impairment before it
concludes that the employee is disabled.

                               22
Taylor's temporary restrictions as permanent. Taylor also
offered evidence that Pathmark did not engage in a process
of communication and cooperation, as we counseled
employers to do in Deane. See id. at 149.9 Additionally,
Pathmark argues that Taylor acted unreasonably under the
circumstances: He waited until after the ADA Committee
made its decision to have his doctor submit a new report.
However, Taylor did not know until the May letter that
Pathmark considered him permanently unable to work, and
he did communicate with Pathmark in December 1995,
approximately five months before he was fired, about his
reduced restrictions.

While Pathmark argues that Taylor bears the "lion's
share" of responsibility for any miscommunication that
occurred, there is evidence to the contrary. Taylor appears
to have consistently sought reinstatement. Pathmark's own
electronic mail suggests that his saga included"glitches."
Pathmark waited approximately seven months after the
ADA Committee considered his case to send him notice that
he was terminated, apparently because of an often-
postponed meeting of counsel. The ADA Committee itself
did not meet on Taylor's case for one year after Pathmark's
doctor last examined him, which constitutes a significant
delay. Moreover, the record reflects that an outside
consultant advised Pathmark that "sharp disparities"
between Taylor's self-report and Dr. Moore's evaluation led
her to "strongly advise that an attempt be made to resolve
the discrepancies."

While there are no fixed rules for what an ADA plaintiff
must do to correct an employer's expressed misperception,
we think that a jury could find that Taylor did not act
unreasonably in these circumstances and that Pathmark
was responsible for the misunderstanding. Reasonability is
_________________________________________________________________

9. Pathmark also seeks to distinguish Deane by noting that there was a
factual dispute in that case as to whether lifting was an essential
function of the job, and there is no such dispute here. But that question
goes to a totally different element of the plaintiff 's case, which is
whether the plaintiff is qualified to perform the essential functions of
the
job. Taylor is not saying that Pathmark was wrong about the job
description; he is arguing that Pathmark was wrong about him, at least
after December 1995.

                                23
a fact-specific test, and, of course, the employee must have
reason to know of the basis of the employer's decision
before he can unreasonably fail to correct a mistake. This
rule will encourage communication between employer and
employee, in the same way that the interactive process for
determining reasonable accommodations does. See Taylor,
___ F.3d at ___ (discussing the requirements of the
interactive process).

E. Actual Causation

Pathmark argues that it never regarded Taylor as
disabled. It states that, when Dr. Moore gave it updated
information in June 1996, it then understood that Taylor's
restrictions were no longer as serious as they had
previously been. Arguably, Pathmark simply decided not to
take Taylor back, even knowing that he could work, until
July 1997.10

Taylor responds that we cannot simply take Pathmark's
word that it knew he was not disabled but refused to act on
that information, since Taylor was never privy to its "secret
thought processes." In this posture, Taylor's argument is
persuasive. If we were to accept Pathmark's argument, a
plaintiff 's attempts to disabuse an employer's
misperceptions about his disability could be used to
eviscerate a "regarded as" claim; this would encourage
potential plaintiffs to avoid communicating with employers
and begin litigation that might otherwise be avoided.
Particularly given the reasonability defense set forth in the
previous section, we think that Pathmark cannot rely solely
on Taylor's communications with it to prove that Pathmark
did not regard him as disabled after June 1996.

We note in this regard that the lack of internal
communication, to which Pathmark appeals when asking
us to excuse its reliance in 1994 on the various conflicting
doctors' notes, could also have left Pathmark with a
_________________________________________________________________

10. If the contention were that Pathmark used Taylor's disability as a
pretext for ridding itself of an employee with seniority under the union
collective bargaining agreeement, Taylor would not have a successful
claim that he was regarded as disabled. The ADA prohibits
discrimination, not action taken using discrimination as a pretext.

                                24
continuing erroneous belief about Taylor. The ADA
Committee, by its member's own testimony, never learned
why Taylor was not accommodated and rehired, and a
reasonable jury could conclude that the relevant Pathmark
decisionmakers--apparently Pathmark counsel, in this case
--continued to regard Taylor as disabled.

F. Remaining Issues

Pathmark also argues that Taylor never proved that there
was a job that he could do that was open during the
relevant time period. As Pathmark points out, it has no
duty to create a special job for a disabled person. See
EEOC Technical Assistance Manual at 90.0530 (an
employer is not required to create a new job or bump an
employee from an existing job as a reasonable
accommodation); cf. Shiring v. Runyon, 90 F.3d 827 (3d Cir.
1996) (reaching the same result under the functionally
identical Rehabilitation Act). Specifically, Pathmark argues
that Taylor never proved that there was an available frozen
food manager position during the relevant period; his old
job was filled before he returned in 1992, and nothing in
the record shows that there was a vacancy thereafter.
Unless there was a frozen food vacancy, Pathmark
persuasively reasons, there can be no causal connection
between Pathmark's perception of Taylor's abilities and its
failure to give him the frozen food job. Taylor responds that
he did not pursue the frozen food job more aggressively
because his union representative was told that he was
going to be put back to work. This is an issue of fact to be
resolved on remand.

Taylor also suggests that he would have wanted to be
considered for a cashier job, and there apparently were
cashier vacancies for which the ADA Committee could have
considered him. Pathmark's own ADA manuals suggested
that cashier jobs did not require extended walking and
standing. Furthermore, under the ADA the employer may
be required to participate with a covered employee to
identify a vacant position that the employee can perform, as
employees may otherwise lack the ability to identify such
positions. See Taylor, ___ F.3d at ___, slip op. at 35-36;
Mengine v. Runyon, 114 F.3d 415, 420 (3d Cir. 1997).
Therefore, there is at least a genuine and material issue as

                               25
to whether Pathmark would have had a position for Taylor
in 1996.

If Taylor prevails, the District Court might have to decide
in the first instance whether a "regarded as" plaintiff is
entitled to accommodation even though he is not disabled.
We have yet to resolve this issue. On the one hand, the
statute does not appear to distinguish between disabled
and "regarded as" individuals in requiring accommodation.
On the other, it seems odd to give an impaired but not
disabled person a windfall because of her employer's
erroneous perception of disability, when other impaired but
not disabled people are not entitled to accommodation. See
Deane, 142 F.3d at 149 n.12.

The debate over accommodation has heretofore focused
on what constitutes a "reasonable accommodation," not on
the definition of "accommodation" vel non. In its natural
meaning, an "accommodation" would seem to be some
change in the way the employer normally requires or allows
the job to be done.11 If the employer routinely allows
employees to perform a job in one of several ways and an
employee chooses one of those ways, perhaps in order to
alleviate an impairment that does not rise to the level of a
disability, then there would not seem to be any
"accommodation" involved.

In this case, the requested "accommodation" is the use of
a milk crate to sit on while stocking lower shelves. This
may or may not be a true accommodation, and it might
therefore be unnecessary to reach the difficult question of
entitlement to accommodation. See App. at A256
(vocational rehabilitation specialist testified that "I believe
there would be little or no real accommodation necessary"
_________________________________________________________________

11. Webster's Third New International Dictionary defines
"accommodation" as, inter alia, "something that is supplied for
convenience or to satisfy a need," "the provision of what is needed or
desired for convenience," or "adaptation, adjustment." Webster's Third
New International Dictionary 12 (1966). The last definition seems most
appropriate to the context of the ADA. None of these definitions would
make the standard conditions of a workplace "accommodations," as
preexisting conditions or practices would not be "supplied" or "provided"
to take account of an employee's disability.

                               26
for the frozen food job); id. at A257-58 (reaching the same
conclusion about stock jobs). Pathmark's representative
testified that use of a milk crate created "safety issues," but
this was called into question on cross-examination, and
Taylor testified that he used a milk crate to do his job for
fourteen months without objection from Pathmark.
Moreover, Taylor's expert, Yohe, testified that the use of
milk crates was standard in supermarket stocking
generally. There is thus a material issue of fact as to
whether use of a milk crate was a standard way to perform
stocking duties at Pathmark.

Furthermore, even if use of a milk crate is an
accommodation and Taylor is not entitled to
accommodation, he may well be entitled to other forms of
relief, such as injunctive relief and damages, as well as
attorney's fees, and so the accommodation question is not
critical to the success of his claim. See Deane, 142 F.3d at
149 n.12.

IV. Conclusion

This factually complex case presents us with novel issues
under what may be the most difficult part of a difficult
statute. Adhering to our precedent that mistakes may lead
to liability under the ADA, we hold that, in this case, a jury
could find Pathmark responsible for its mistaken
impression of Taylor's abilities, and that a jury could also
find a causal link between Pathmark's mistake and its
failure to rehire Taylor in one of his former positions.
However, Taylor does not suffer from an actual disability.

For the foregoing reasons, we will affirm the judgment of
the District Court on Taylor's actual disability claim, affirm
it on Taylor's "regarded as" claim from September 1995 to
December 19, 1995, and reverse it on the "regarded as"
claim for the period following December 19, 1995.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               27
