                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-29-2002

Shapiro v. Lakewood
Precedential or Non-Precedential: Precedential

Docket No. 01-3212




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Recommended Citation
"Shapiro v. Lakewood" (2002). 2002 Decisions. Paper 311.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/311


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       PRECEDENTIAL

       Filed May 29, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-3212

HOWARD SHAPIRO,
       Appellant

v.

TOWNSHIP OF LAKEWOOD; FRANK EDWARDS; GAR
WOODFIELD; and JOHN DOES 1 to 5

ON APPEAL FROM
THE DISTRICT COURT FOR THE
DISTRICT OF NEW JERSEY
(Dist. Court No. 99-cv-03089)
District Court Judge: Mary Little Cooper

Argued on March 4, 2002

Before: ALITO, RENDELL, and HALL,* Circuit Jud ges.

(Filed: May 29, 2002)

_________________________________________________________________

* The Honorable Cynthia Holcomb Hall, Circuit Judge for the Ninth
       Circuit, sitting by designation.

       JOHN P. BRENNAN, JR. (Argued)
       912 Wall Road
       Spring Lake Heights, NJ 07762

       Counsel for Appellant

       ROBERT D. FORD   (Argued)
       Russo, Secare,   Ford, Delanoy &
        Martino
       616 Washington   Street
       Toms River, NJ   08753

       Counsel for Appellee

OPINION OF THE COURT

ALITO, Circuit Judge:

Howard Shapiro became disabled during the course of
his employment with the Township of Lakewood
("Lakewood" or the "Township"). When he requested a
"reasonable accommodation," Lakewood refused to transfer
him unless he followed the standard procedure for
interdepartmental transfers -- which apparently consisted
of going to the municipal building and looking at
announcements posted on a bulletin board. Shapiro
subsequently filed this action, claiming, among other
things, that Lakewood had violated his rights under the
Americans with Disabilities Act ("ADA"), 42 U.S.C. S 12101
et seq. Shapiro argued that by requesting a reasonable
accommodation, he had initiated an "interactive process" in
which Lakewood was required to engage. Although Shapiro
identified several positions that were vacant during the
period in question and that he could have filled, the District
Court granted summary judgment for the Township
because Shapiro had not formally applied for those
positions. We hold that because Shapiro requested
accommodation and because he identified positions into
which he could have been transferred -- namely, positions
as a police dispatcher -- summary judgment in favor of the
Township was not proper. Accordingly, we reverse the
District Court’s order granting Lakewood’s motion for

                                2


summary judgment and remand the case for further
proceedings.

I.

Howard Shapiro was employed by the Township of
Lakewood for 15 years, first as a police dispatcher and later
as an Emergency Medical Technician ("EMT"). On July 27,
1997, during the course of his employment as an EMT,
Shapiro injured his back while lifting an elderly patient.
Shapiro’s consultations with a physician revealed that he
had a herniated disc at L5-S1 and a bulging disc at L4-L5.
He continued to work on light duty in the Emergency
Medical Services department ("EMS") until October 9, 1997,
when he was placed on out-of-work workers’ compensation
temporary disability for one month. Eventually, Shapiro
was released from out-of-work status to "restrictive duty"
with the limitation that he could not crawl, crouch, squat,
or lift more than 25 pounds. He never resumed active duty
as an EMT, however, and at the time of this litigation, he
remained an unpaid employee of Lakewood on out-of-work
status. As the result of successful claims for workers’
compensation, Shapiro received medical and temporary
benefits in the sums of $29,136 in December 1998 and
$14,384 in November 1999.

After becoming disabled, Shapiro made repeated requests
for accommodations that would enable him to continue
working for Lakewood either in a light duty capacity with
EMS or in another position. Shapiro asserts that in August
1997 he informed his supervisor that he was disabled and
sought "reasonable accommodation." On January 8, 1998,
Shapiro’s counsel sent a letter to Lakewood’s Municipal
Manager, Frank Edwards, demanding "reasonable
accommodation." On April 30, 1999, Shapiro’s counsel
again wrote to Edwards. This letter stated: "Please consider
this a formal demand that Lakewood Township return Mr.
Shapiro to work immediately and make reasonable
accommodations for the prescribed limitations. In
considering this, please be mindful that Mr. Shapiro is a
very talented individual who is not only a licensed EMT, but
also a licensed electrician and expansively computer
competent." Letter to Frank Edwards, April 30, 1999, in

                                3


App. III at A256. On March 13, 2000, Shapiro’s counsel
wrote to Lakewood’s attorney, asking what types of training
Shapiro should pursue for Lakewood to provide him with
reasonable accommodation. In addition, Shapiro made
three other inquiries by letter to Lakewood requesting
information regarding available positions that would
accommodate him. Lakewood either ignored Shapiro or told
him that it could not give advice regarding what training he
should pursue. On one occasion, Shapiro was advised to
"go to Town Hall and fill out a job application." Distr. Ct.
Memo. at 4, in App. I at A4. At no time did Lakewood
contact Shapiro to discuss how it might accommodate him.

Shapiro has identified the position of police dispatcher as
a vacant one that he was qualified to perform. From the
time that Shapiro first requested accommodation to the
initiation of legal action, Lakewood hired at least five
dispatchers. Lakewood’s "policy" regarding such an
interdepartmental transfer to a non-competitive, vacant
position is to post each opening on a bulletin board in the
municipal building. Employees desiring a new position
apply for a transfer by responding to the posting. Shapiro
did not apply for a transfer to a vacant position. Lakewood
claimed that, because Shapiro failed to follow Lakewood’s
procedure regarding interdepartmental transfers to vacant
positions, it was not obligated to transfer him to the
position of police dispatcher or any other position in
another department of the Township. Lakewood contends
that accommodating Shapiro by means of a transfer would
have required it to violate its "policy" of requiring interested
employees specifically to request and interview for job
transfers. Relying on our decision in Donahue v.
Consolidated Rail Corp., 224 F.3d 226 (3d Cir. 2000), the
District Court granted Lakewood’s motion for summary
judgment on Shapiro’s ADA claim because he did not apply
for a transfer.

II.

On appeal, Shapiro argues that the District Court’s grant
of summary judgment for Lakewood should be reversed
because Lakewood failed to engage in good faith in an
"interactive process" designed to find a job into which he

                                4


could have been transferred. This appeal therefore requires
us once again to address the concept of the "interactive
process" that we first mentioned in Mengine v. Runyon, 114
F.3d 415 (3d Cir. 1997).

The ADA itself does not refer to the "interactive process."
The ADA provision upon which Shapiro’s claim is based
requires an employer to "mak[e] reasonable
accommodations to the known physical or mental
limitations of an otherwise qualified individual with a
disability who is an applicant or employee, unless[the
employer] can demonstrate that the accommodation would
impose an undue hardship on the operation of the business
of [the employer.]" 42 U.S.C. S 12112(b)(5)(A). A regulation
issued pursuant to the ADA, however, states that,"[t]o
determine the appropriate reasonable accommodation it
may be necessary for [the employer] to initiate an informal,
interactive process with [the employee] in need of the
accommodation. This process should identify the precise
limitations resulting from the disability and potential
reasonable accommodations that could overcome those
limitations." 29 C.F.R. S 1630.2(o)(3).

In Mengine, we endorsed the concept of the"interactive
process" and explained:

       When the interactive process works well, it furthers the
       purposes of the Rehabilitation Act and the ADA. The
       employers will not always know what kind of work the
       worker with the disability can do, and conversely, the
       worker may not be aware of the range of available
       employment opportunities, especially in a large
       company. Thus, the interactive process may often lead
       to the identification of a suitable position. If it turns
       out there is no job which the worker (with or without
       accommodation) is capable of performing, then the
       company cannot be held liable for an ADA or
       Rehabilitation Act violation.

114 F.3d at 420. We observed that an employer that fails to
engage in the "interactive process" runs a substantial risk:
"if an employer fails to engage in the interactive process, it
may not discover a way in which the employee’s disability
could have been reasonably accommodated, thereby risking

                                5


violation of the Rehabilitation Act." Id. at 420-21; see also
Deane v. Pocono Medical Center, 142 F.3d 138, 149 (3d Cir.
1998) (en banc). Mengine also made it clear, however, that
" ‘it falls to the employee to make at least a facial showing’
that there were vacant, funded positions whose essential
functions he was capable of performing." 114 F.3d at 419
(quoting Shiring v. Runyon, 90 F.3d 827, 832 (3d Cir.
1996)). We added that: "Mengine must ‘demonstrate that
there were vacant, funded positions whose essential duties
he was capable of performing, with or without reasonable
accommodation, and that these positions were at an
equivalent level or position as [his former job].’ " Mengine,
114 F.3d at 418 (quoting Shiring, 90 F.3d at 832). We have
elaborated on the "interactive process" in later cases. See,
e.g., Jones v. United Parcel Service, 214 F.3d 402 (3d Cir.
2000); Taylor v. Phoenixville School District , 184 F.3d 296
(3d Cir. 1999).
In granting summary judgment for the Township, the
District Court in the present case relied on one of these
cases, Donahue v. Consolidated Rail Corp., 224 F.3d 226
(3d Cir. 2000). There, we held that in a failure-to-transfer
case, "the plaintiff bears the burden of demonstrating: (1)
that there was a vacant, funded position; (2) that the
position was at or below the level of the plaintiff’s former
job; and (3) that the plaintiff was qualified to perform the
essential duties of this job with reasonable
accommodation." Id. at 230. We stated that "in a failure-to-
transfer case, if, after a full opportunity for discovery, the
summary judgment record is insufficient to establish the
existence of an appropriate position into which the plaintiff
could have been transferred, summary judgment must be
granted in favor of the defendant -- even if it also appears
that the defendant failed to engage in good faith in the
interactive process." Id. at 234.1
_________________________________________________________________

1. Other circuits have also held that the employee bears the burden of
showing an accommodation is possible. See, e.g. , Jackan v. New York
State Department of Labor, 205 F.3d 562, 567 (2d Cir. 2000) ("[A]
plaintiff seeking to hold the employer liable for failing to transfer her to
a vacant position as a reasonable accommodation must demonstrate
that there was a vacant position into which she might have been
transferred."); Smith v. Midland Brake, Inc. , 180 F.3d 1154, 1174 (10th

                                6


In the present case, the District Court held that in an
ADA failure-to-transfer case, the employee with a disability
must "identify a vacant, funded position for which he
requested a transfer." Dist. Ct. Op. at 16 (emphasis added).
In so holding, the District Court extended Donahue.
Donahue did not hold or state that an employee in a failure-
to-transfer case must always show that he or she formally
applied for the position in question.

The Township argues that excusing Shapiro from the
obligation of submitting an application for a dispatcher
position would violate its "policy" regarding transfers --
which apparently consists of an unwritten practice under
which vacancies for positions such as those at issue here
are posted on a bulletin board, and employees desiring
transfers must monitor those postings and apply for any
positions that they seek.

In US Airways, Inc. v. Barnett, 122 S. Ct. 1516 (2002),
the Supreme Court considered the question whether an
employer may be required by the ADA’s reasonable
accommodation requirement to deviate from a disability-
neutral rule. Rejecting the argument that such a rule
always takes precedence over a request for reasonable
accommodation, 122 S. Ct. at 1521, the Court expressed
approval of lower court decisions holding that "a
plaintiff/employee (to defeat a defendant/employer’s motion
for summary judgement) need only show that an
‘accommodation’ seems reasonable on its face, i.e.,
ordinarily or in the run of cases" and that "[o]nce the
plaintiff has made this showing, the defendant/employer
then must show special (typically case-specific)
circumstances that demonstrate undue hardship in the
particular circumstances." Id. at 1523. Applying this
_________________________________________________________________

Cir. 1999) (en banc) ("Even if Midland Brake failed to fulfill its interactive
obligations to help secure a reassignment position, Smith will not be
entitled to recovery unless he can also show that a reasonable
accommodation was possible and would have led to a reassignment
position."); Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997)
("[W]here a plaintiff cannot demonstrate‘reasonable accommodation,’ the
employer’s lack of investigation into reasonable accommodation is
unimportant.").

                                7


framework to the situation in which the requested
accommodation would violate a seniority system, the Court
held that an "employer’s showing of violation of the rules of
a seniority system is by itself ordinarily sufficient" to show
that the requested accommodation is unreasonable, but
that the employee "remains free to show that special
circumstances warrant a finding that, despite the presence
of a seniority system (which the ADA may not trump in the
run of cases), the requested ‘accommodation’ is‘reasonable’
on the particular facts." Id. at 1525.

It therefore appears that the Court has prescribed the
following two-step approach for cases in which a requested
accommodation in the form of a job reassignment is
claimed to violate a disability-neutral rule of the employer.
The first step requires the employee to show that the
accommodation is a type that is reasonable in the run of
cases. The second step varies depending on the outcome of
the first step. If the accommodation is shown to be a type
of accommodation that is reasonable in the run of cases,
the burden shifts to the employer to show that granting the
accommodation would impose an undue hardship under
the particular circumstances of the case. On the other
hand, if the accommodation is not shown to be a type of
accommodation that is reasonable in the run of cases, the
employee can still prevail by showing that special
circumstances warrant a finding that the accommodation is
reasonable under the particular circumstances of the case.

The District Court’s decision in this case -- entering
summary judgment against Shapiro simply because he did
not comply with Lakewood’s policy regarding transfer
applications -- cannot be reconciled with Barnett and must
therefore be reversed. On remand, the District Court should
follow the approach prescribed by Barnett.

III.

For these reasons, we reverse the July 10, 2001, order of
the District Court granting summary judgment for the
Township of Lakewood and remand the case for further
proceedings.
                                8


A True Copy:
Teste:

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

                                9
