                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-12-1997

Kralik v. Durbin
Precedential or Non-Precedential:

Docket 97-3089,97-3106




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Recommended Citation
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Filed December 12, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 97-3089 and 97-3106

KAREN KRALIK,

       Appellant in No. 97-3089

v.

JOHN DURBIN, in his capacity as Executive Director,

Pennsylvania Turnpike Commission

KAREN KRALIK,

v.

JOHN DURBIN, in his capacity as Executive Director,

Pennsylvania Turnpike Commission,

       Appellant in No. 97-3106

On Appeal from the United States District Court

for the Western District of Pennsylvania
(D.C. Civ. No. 95-01877)

Argued October 21, 1997

BEFORE: MANSMANN, GREENBERG, and

ALARCON,* Circuit Judges

(Filed: December 12, 1997)
_________________________________________________________________

*Honorable Arthur L. Alarcon, Senior Judge of the United States Court
of Appeals for the Ninth Circuit, sitting by designation.
       Pamela E. Berger (argued)
       312 Boulevard of the Allies
       Pittsburgh, PA 15222

       Attorney for Appellant-Cross
       Appellee Karen Kralik

       James B. Brown (argued)
       Jeffrey A. Van Doren
       Cohen & Grigsby
       625 Liberty Avenue
       2900 CNG Tower
       Pittsburgh, PA 15222-3115

       Attorneys for Appellee-Cross
       Appellant John Durbin

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

Karen Kralik appeals from the district court's December
16, 1996 order entering summary judgment against her
under the Rehabilitation Act, 29 U.S.C. S 701 et seq., and
the Americans with Disabilities Act ("ADA"), 42 U.S.C.
S 12101 et seq., and from the district court's January 14,
1997 order denying her motion for reconsideration. The
appellee, John Durbin, cross appeals from the portion of
the December 16, 1996 order denying summary judgment
as to one issue even though the order dismissed Kralik's
complaint. We will affirm the orders granting summary
judgment and denying the motion for reconsideration and
will dismiss the cross appeal.

Kralik alleged in her complaint that she is an individual
with a disability employed as a toll collector by the
Pennsylvania Turnpike Commission, an instrumentality of
the Commonwealth of Pennsylvania, at its Allegheny Valley
Interchange. Durbin is Executive Director of the

                                2
Commission so as a matter of convenience and reality we
will refer to him as the "Commission." Kralik asserted that
she suffered a back injury in an automobile accident
unrelated to her work. She further asserted that she sought
from the Commission the reasonable accommodation of
being relieved from forced overtime "as she cannot work for
more than eight hours at a time" because of her injuries.
The Commission, however, refused to grant the
accommodation except on a temporary basis. After the
Commission filed an answer, it moved for summary
judgment on the grounds that Kralik is not a qualified
individual with a disability and that, in any event, the
Commission is not obligated to make the requested
accommodation.1

In its opinion dated December 13, 1996, the district court
noted that Kralik had worked for the Commission since
1988 as a toll collector and in 1990 had become a
permanent Commission employee at the Allegheny Valley
Interchange. Kralik was in a bargaining unit represented by
Teamsters Local Union No. 250. At all relevant times the
union was a party to a collective bargaining agreement with
the Commission which included the following overtime
provision:

        Section 11. In a twenty-four (24) hour operation, if
       the Commission experiences difficulty in obtaining a
       replacement for any work shift, they will call employees
       using the seniority system described herein. If no
       employee accepts the assignment, it shall be offered by
       seniority to employees at the work site. In the event
       they refuse, the least senior employee, including any
       temporary employees in the needed job classifications,
       shall remain as the replacement. A temporary employee
       shall not be permitted to work overtime when a full-
       time employee is ready, willing and able to perform the
       overtime work in question. Temporary Toll Collectors
       who are scheduled to work forty (40) hours or who
_________________________________________________________________

1. It also urged that Kralik failed to exhaust the remedies provided in
the
collective bargaining agreement between her union, Teamsters Local
Union No. 250, and the Commission, but that issue is no longer in the
case so we make no further reference to it.

                               3
       have already worked forty (40) hours in a given work
       week are not to be asked to work a vacant shift unless
       all the Temporary Toll Collectors who are not
       scheduled to work nor have worked forty (40) hours
       and all the permanent Toll Collectors have refused to
       work the vacant shift. All hours worked by a
       Temporary Toll Collector will be counted towards the
       forty (40) hours requirement except those hours
       worked which were first offered to and refused by all
       eligible permanent Toll Collectors.

        Scheduled work time must be adjusted to comply
       with the above.

        A. Consistent with Article IX, in the event that
       overtime opportunities are refused by all employees,
       the overtime shift shall be assigned to the employee
       currently working with the least amount of seniority.
       This will be known as a `forced overtime assignment'.

The court observed that after two medical leaves of
absence due to her back injury, Kralik on November 7,
1994, submitted a "Reasonable Accommodation Form" to
the Commission requesting exemption from forced overtime
requirements. Kralik subsequently filed a charge with the
Equal Employment Opportunity Commission ("EEOC")
asserting that the Turnpike Commission had violated the
ADA in not making an accommodation and that the union,
Kralik, and the Commission later had entered into an
agreement temporarily excusing her from being forced to
work overtime. Then, as the court noted, she filed this
action seeking relief under both the ADA and section 504 of
the Rehabilitation Act, 29 U.S.C. S 794.

The court, citing Helen L. v. DiDario, 46 F.3d 325, 331
(3d Cir.), cert. denied, 116 S.Ct. 64 (1995), held that the
similarities between the two statutes permit a joint analysis
of Kralik's claims.2 The court then explained:
_________________________________________________________________

2. As noted in Lyons v. Legal Aid Soc'y, 68 F.3d 1512, 1514-15 (2d Cir.
1995), "[t]he Rehabilitation Act . . . prohibits disability-based
discrimination by government agencies and other recipients of federal
funds . . . ." The ADA has a broader scope as it defines a "covered
entity"
as "an employer, employment agency, labor organization, or joint labor-
management committee." 42 U.S.C. S 12111(2). Certain employers,
however, are not included within section 12111(2). See 42 U.S.C.
S 12111(5).

                               4
        [U]nder either the ADA or the Rehabilitation Act, a
       plaintiff can state a claim for discrimination based
       upon her employer's failure to accommodate her
       handicap by alleging facts showing (1) that the
       employer is subject to the statute under which the
       claim is brought, (2) that she is an individual with a
       disability within the meaning of the statute in question,
       (3) that, with or without reasonable accommodation,
       she could perform the essential functions of the job,
       and (4) that the employer had notice of the plaintiff's
       disability and failed to provide such accommodation.

Slip op. at 6 (quoting Lyons v. Legal Aid Soc'y, 68 F.3d
1512, 1515 (2d Cir. 1995)). For purposes of its summary
judgment motion, the Commission agreed that it was
subject to both the ADA and the Rehabilitation Act and had
notice of Kralik's alleged disability, yet sought summary
judgment on the grounds that Kralik was not a qualified
individual with a disability and could not, with or without
reasonable accommodation, perform the essential functions
of the job as a toll collector.

As the court noted, both the ADA and the Rehabilitation
Act define "disability" as a "physical or mental impairment
that substantially limits" one or more of the major life
activities of the individual claiming to have a disability. 42
U.S.C. S 12102(2); 29 U.S.C. S 706(26). Major life activities
include "functions such as caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking,
breathing, learning and working," 29 C.F.R. S 1630.2(i), as
well as "sitting, standing, lifting [and] reaching." 29 C.F.R.
S 1630 app.

After analyzing the record the court concluded as follows:
(1) Kralik did not produce evidence that her ability to work,
to engage in the major life activities of caring for herself or
her house, to travel or engage in leisure activities, or to
twist had been substantially impaired; but (2) there was a
genuine dispute of fact as to whether Kralik's ability to sit,
stand, and stoop had been impaired. Thus, the court
denied the Commission's motion for summary judgment on
the issue of whether Kralik was a qualified individual with
a disability.

                               5
The court next considered the Commission's alternate
contention that Kralik's claim could not succeed because
the requested accommodation, exemption from the forced
overtime provision, was not reasonable. In this regard the
Commission pointed out that such an exemption could
require the Commission to compel an employee with more
seniority than Kralik to work overtime, forcing the
Commission to infringe another employee's seniority rights
under the collective bargaining agreement.

The court cited various cases under the Rehabilitation
Act and the ADA supporting a conclusion that a measure
that violates a seniority system established in a collective
bargaining agreement is not a "reasonable accommodation,"
and thus is not required by the ADA. See Eckles v.
Consolidated Rail Corp., 94 F.3d 1041, 1052 (7th Cir. 1996)
(discussed below), cert. denied, 117 S.Ct. 1318 (1997);
Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1114 (8th
Cir. 1995) ("The ADA does not require that Northwest take
action inconsistent with the contractual rights of other
workers under a collective bargaining agreement."); Wooten
v. Farmland Foods, 58 F.3d 382, 386 (8th Cir. 1995) ("An
employer is not required to make accommodations that
would violate the rights of other employees. Farmland
Foods had no obligation to terminate other employees or
violate a collective bargaining agreement in order to
accommodate Wooten, even if it perceived him to have a
substantial impairment.") (citation omitted); Milton v.
Scrivner, Inc., 53 F.3d 1118, 1124-25 (10th Cir. 1995) ("An
employer is not required by the ADA to reallocate job duties
in order to change the essential function of a job. An
accommodation that would result in other employees
having to work[ ] harder or longer hours is not required.")
(citations omitted); Shea v. Tisch, 870 F.2d 786, 790 (1st
Cir. 1989) ("Consequently, we . . . conclude that the postal
service was not required to accommodate plaintiff further
by placing him in a different position since to do so would
violate the rights of other employees under the collective
bargaining agreement."); Carter v. Tisch, 822 F.2d 465, 467
(4th Cir. 1987) ("Reassigning Carter to permanent light
duty, when he was not entitled to one of a limited number
of light duty positions, might have interfered with the rights

                                6
of other employees under the collective bargaining
agreement.").

The court found that Kralik's requested accommodation
would infringe upon the legitimate seniority rights of other
employees established in the collective bargaining
agreement. The court then, for the very reason that the
accommodation was temporary, rejected Kralik's contention
that the temporary agreement described above amounted to
a concession that the requested accommodation is
reasonable. See Shea, 870 F.2d at 789 & n.4 (holding that
employer was not required to institute permanent
accommodation that would violate rights under collective
bargaining agreement despite employer's ability to maintain
accommodation temporarily without compromising other
employees' rights). Thus, the court concluded that
"regardless of Kralik's ability to establish that one or more
of her major life activities were substantially limited, the
requested accommodation is not reasonable, in that it
would require the Commission to violate the seniority
rights of other employees as set forth in the collective
bargaining agreement." Consequently, the court granted the
Commission summary judgment.

Subsequently, Kralik moved for reconsideration
contending, as she explains in her brief, that there was "an
agreement between the Teamsters and the . . . Commission
regarding the accommodation of another fare collector
[which] permits assigning [the collector] to a shift
independently of the bidding process required by the
collective bargaining agreement." Br. at 5. The
documentation attached to Kralik's motion included a letter
from the union to the Commission stating that as long as
the other collector's request is covered by and was
reasonable under the ADA, the union would not object to
the assignment of that collector and "will process no
grievances concerning this matter." App. at 93. The district
court denied the motion for reconsideration as Kralik did
not explain why she had not produced this evidence earlier.3
_________________________________________________________________

3. The court also indicated in denying the motion for reconsideration that
Kralik "neither relied on the EEOC amicus brief in her earlier brief nor
mentioned that the 7th Circuit rejected the argument therein." We are
uncertain why Kralik's failure to rely on the EEOC brief was germane to
the motion but we believe that the reference to the Court of Appeals for
the Seventh Circuit probably was to Eckles, 94 F.3d at 1050-52, which
we cite above and discuss at great length below.

                               7
Kralik then appealed and the Commission cross appealed.
The district court had jurisdiction under 28 U.S.C. SS 1331
and 1343 and we have jurisdiction under 28 U.S.C. S 1291.
We exercise plenary review over the order granting
summary judgment but will review the order denying
reconsideration on an abuse of discretion basis.

II. DISCUSSION

A. The appeal

Preliminarily we point out that Kralik does not question
the district court's joint analysis of her ADA and
Rehabilitation Act claims. Thus, she does not contend that
she might be entitled to relief under one act but not the
other. Consequently, while we will focus our analysis
primarily on the ADA, our analysis in this case applies
equally to her Rehabilitation Act claim. The ADA provides
that prohibited discrimination includes "not making
reasonable accommodations to the known physical or
mental limitations of an otherwise qualified individual with
a disability." 42 U.S.C. S 12112(b)(5)(A). Inasmuch as the
district court held that there was a material dispute of fact
as to whether she was a qualified individual with a
disability, Kralik primarily challenges the district court's
determination that the Commission did not discriminate
against her in violation of the ADA by failing to exempt her
from the forced overtime provisions of her union's collective
bargaining agreement.

In urging us to reverse she points to 42 U.S.C.
S 12112(b)(2), an ADA provision which provides that
discrimination includes a covered entity's:

       participating in a contractual or other arrangement or
       relationship that has the effect of subjecting a covered
       entity's qualified applicant or employee with a disability
       to the discrimination prohibited by this subchapter
       (such relationship includes a relationship with an
       employment or referral agency, labor union, an
       organization providing fringe benefits to an employee of
       the covered entity, or an organization providing
       training and apprenticeship programs).

                               8
She then argues that under both the Rehabilitation Act, as
amended in 1991, and the ADA, an employer should
consider making an accommodation by reassigning an
employee. See Br. at 9 (citing Shiring v. Runyon, 90 F.3d
827, 832 (3d Cir. 1996)). She further contends that the
Commission's adherence to the forced overtime provision in
the collective bargaining agreement violates the plain
language of 42 U.S.C. S 12112(b)(2), and thus of the
Rehabilitation Act, and that the legislative history of the
ADA supports her position by establishing that an " `entity
may not do through a contractual provision what it may not
do directly . . . .' " Br. at 10 (quoting H.R. Rep. No. 485(II)
101st Cong., 2d Sess. 59-60 (1990)).

She also argues that EEOC guidelines favor a flexible
approach wherein unions and employers "consult and work
out an accommodation," br. at 14, and maintains that the
Commission could accommodate her by excusing her from
forced overtime without undue hardship, difficulty or
expense. Br. at 16. In fact, as Kralik emphasizes, the union
and the Commission agreed on a temporary basis that the
Commission would not force Kralik to work overtime and,
as she pointed out in her motion for reconsideration, the
Commission with the union's agreement accommodated
another toll collector by assigning him to a shift without
regard for the bidding process in the collective bargaining
agreement. Furthermore, in practice the Commission rarely
would need to assign Kralik to forced overtime. Indeed, at
oral argument before this court Kralik indicated that during
the pendency of this litigation the Commission never has
required her to work forced overtime. She also contends
that the cases relied on by the district court and cited
above are either factually distinct or incorrectly decided. Br.
at 17-19.

In considering the merits of this appeal we reiterate that
the accommodation Kralik seeks would require the
Commission to violate the collective bargaining agreement.
Nevertheless, we agree with her that the collective
bargaining agreement is not necessarily decisive because
the union and the Commission together may modify the
agreement as they did on a temporary basis by relieving her
from forced overtime. But Kralik points to nothing in the

                               9
record to support a contention that the union has
communicated to the Commission a willingness to waive
the forced overtime provision with respect to her as long as
she is a qualified individual with a disability. 4 Rather, she
refers to a letter to her by the secretary-treasurer of her
union stating that "it may be possible to waive[the forced
overtime] provision if it can be shown that your injury
qualifies you under the [ADA]." App. at 82-83. Of course, a
union waiver of the forced overtime provision would vitiate
the Commission's argument that it could not accommodate
Kralik without violating the agreement. Unfortunately for
Kralik, however, the union has not given the Commission
such a waiver. Accordingly, the issue before us is clear: is
the accommodation Kralik seeks unreasonable because it
would require the Commission to infringe on the seniority
rights of other employees in the collective bargaining
agreement?5

On this point we follow Eckles, 94 F.3d 1041, which is a
compelling precedent. In that case Eckles, who suffered
from epilepsy, sought from his employer, Conrail, an
accommodation consisting of an assignment to a position
appropriate for his disability. The difficulty with his request
was that it would have required Conrail to infringe on the
seniority rights of other employees under the collective
bargaining agreement. Id. at 1043. Thus, while Conrail did
not contend that the accommodation would place an undue
burden on it, it argued that the accommodation simply was
not required "due to its effects on the legitimate seniority
rights of other employees." Id. at 1045. Accordingly, the
issue in Eckles was: "whether the ADA requires as
`reasonable accommodation' that a disabled individual be
_________________________________________________________________

4. In view of the EEOC charge Kralik brought against the union after the
district court ruled against her, which we discuss below, we doubt that
it did so.

5. Kralik also argues that the requested accommodation does not place
an undue burden on the Commission because of "the existence of
provisions [in the collective bargaining agreement] for other workers to
voluntarily perform [overtime]." Br. at 7. This observation does not
support her case because the forced overtime provision by its terms
applies only "in the event that overtime opportunities are refused by all
employees."

                               10
given special job placement ... in violation of a bona fide
seniority system in place under a collectively bargained
agreement, when such accommodation is the only way of
meeting the job restrictions of that disabled individual." Id.
at 1045-46.

The Eckles court pointed out that the case posed "a
conflict not so much between the rights of the disabled
individual and his employer and union, but between the
rights of the disabled individual and those of his co-
workers." Id. at 1046. The court also observed that the
applicability of 42 U.S.C. S 12112(b)(2), which Kralik
invokes and which prohibits discrimination brought about
through participation in contractual relationships,
depended in that case on establishing a violation of section
12112(b)(5)(A), since the only form of discrimination alleged
there, as here, was the failure to provide a reasonable
accommodation. Thus, if reasonable accommodation"does
not require reassignment to a position held by another
employee, the collective bargaining agreement at issue did
not subject Eckles to prohibited discrimination by
establishing a bona fide seniority system that regulates the
holding of positions at Conrail." Eckles, 94 F.2d at 1046.

The court acknowledged that a covered entity cannot
avoid its ADA duties by contractual manipulation. But
inasmuch as Eckles did not claim that "the seniority
system was established, even in part, in order to bypass the
duty to accommodate" a qualified individual with a
disability under the ADA, there was "no evidence of . . .
subterfuge." Id. The court then observed that:

       if the ADA does not require that collectively bargained
       seniority rights be compromised in order to reasonably
       accommodate a disabled individual, Eckles cannot
       establish that Conrail and the Union are guilty of
       participating in a contractual arrangement that has the
       effect of subjecting him to prohibited discrimination.
       Hence the issue is simply what is required by
       `reasonable accommodation.'

Id. at 1046.

The court recognized that although the accommodation
Eckles sought did not require firing of other employees,

                               11
"what would be lost to the other employees, particularly
more senior employees, would be some of the value of their
seniority with the company, not their employment." Id. at
1047. The court held that even this limited infringement on
other employees' seniority rights was not reasonable under
the ADA, and pointed out that:

       courts have been unanimous in rejecting the claim that
       `reasonable accommodation' under the Rehabilitation
       Act requires reassignment of a disabled employee in
       violation of a bona fide seniority system. In fact, a
       virtual per se rule has emerged that such reassignment
       is not required under the Rehabilitation Act's duty to
       reasonably accommodate.

Id. (citations omitted). Thus, the Eckles court explained that
Congress adopted the ADA against "the backdrop of well-
established precedent that `reasonable accommodation'
under the Rehabilitation Act had never been held to require
trumping the seniority rights of other employees." Id. at
1048.

In concluding its comprehensive discussion, the Eckles
court held that "[a]fter examining the text, background, and
legislative history of the ADA duty of `reasonable
accommodation,' we conclude that the ADA does not
require disabled individuals to be accommodated by
sacrificing the collectively bargained, bona fide seniority
rights of other employees." Id. at 1051. While the court
recognized "that many of the `reasonable accommodations'
specifically proposed within the ADA also have effects on
other workers," it found that "collectively bargained
seniority rights have a pre-existing special status in the law
and that Congress to date has shown no intent to alter this
status by the duties created under the ADA." Id. at 1052.

Eckles is convincing and is in harmony with the other
precedents we cite above. Thus, we, like the Fifth Circuit
Court of Appeals, will follow it. See Foreman v. Babcock &
Wilcox Co., 117 F.3d 800, 810 (5th Cir. 1997) ("Following
the other circuits which have considered this issue, we hold
that the ADA does not require an employer to take action
inconsistent with the contractual rights of other workers
under a collective bargaining agreement.").6 In doing so we
_________________________________________________________________

6. Kralik relies heavily on Aka v. Washington Hosp. Center, 116 F.3d
876, 890-97 (D.C. Cir. 1997), reh'g en banc granted and judgment

                               12
recognize that in Eckles the proposed infringement on other
employees' seniority rights was far more intrusive than the
infringement at issue here. Yet the lesser degree of
infringement on other employees' seniority rights does not
distinguish adequately this case from Eckles, which
recognized the principle at stake here: an accommodation
to one employee which violates the seniority rights of other
employees in a collective bargaining agreement simply is
not reasonable.

Requiring an employer to violate the collective bargaining
agreement in situations where the employer regards the
infringement on seniority rights as insubstantial and the
accommodation reasonable unfairly would expose the
employer to potential union grievances as neither the union
nor the arbitrator hearing a grievance would be required to
disregard violations of the collective bargaining agreement.
Thus, a rule requiring an employer to violate seniority
rights would subject the employer to the cost of defending
itself against grievances as well as to the risk that it might
be subject to a costly remedy. Accordingly, even minor
infringements on other employees' seniority rights impose
unreasonable burdens on employers who, by reason of
those infringements, must face the consequences of
violating the collective bargaining agreement.

In this regard, we point out that, for reasons we do not
know, the union apparently did not agree that the
Commission could relieve Kralik from forced overtime for
the duration of her status as a qualified individual with a
disability. While Kralik seemed to contend at oral argument
that the union would agree to such an arrangement if she
_________________________________________________________________

vacated, 124 F.3d 1302 (D.C. Cir. 1997), which is inconsistent with
Eckles and thus with the result we reach. Aka stated that "in some cases
the degree of infringement imposed by a `reasonable accommodation' to
one employee's disability on a `right' held by other employees under the
collective bargaining agreement may be extremely slight, and may
impose virtually no `hardship' at all," and thus stated that it would be
"inappropriate to draw blanket conclusions regarding whether the ADA
can `trump' provisions in collective bargaining agreements." Id. at 896.
Aka, however, has been vacated and in any event is inconsistent with
Eckles, which we find to be soundly reasoned.

                               13
established that she was a qualified individual with a
disability who needed the accommodation, as we indicated
above she points to nothing in the record to demonstrate
that the union ever expressed to the Commission its
willingness to extend the temporary agreement we have
described.7

What makes the requested accommodation in this case
unreasonable is not that it would disrupt the Commission's
operations because we cannot say that it would do so.
Rather, the requested accommodation is unreasonable
because it would require the employer to violate its
collective bargaining agreement and run the risks that the
violation entails. Accordingly, we reject Kralik's suggestion
that an accommodation which requires an employer to
violate a collective bargaining agreement may impose
virtually no hardship on the employer. In short, it is
appropriate for the union, rather than the employer, to
make the determination that the infringement is justifiable
by releasing the employer from its obligation to follow the
seniority provisions of the collective bargaining agreement
to accommodate a qualified individual with a disability.8

At oral argument before us the Commission suggested
that even if the union were willing to waive the forced
overtime provision with respect to Kralik, because of the
Commission's personnel needs it might not be able to
accommodate Kralik by excusing her from forced overtime.
_________________________________________________________________

7. According to Kralik the Commission has not applied the forced
overtime provision to her during this litigation and yet the union has not
instituted a grievance proceeding. While this may be true, it does not
follow that the union will remain willing to refrain from grieving in the
future. The union's apparent acquiescence merely is a de facto
continuation of the temporary agreement we describe above. We decline
to hold that the Commission is required to accommodate Kralik for the
duration of her disability as we cannot assume that the union's
acquiescence will continue indefinitely.

8. We note, moreover, that if an employer grants an accommodation by
violating seniority rights of other employees under the collective
bargaining agreement, the employer in its operations may be making no
accommodation at all. As the Eckles court recognized, the
accommodation instead will be made by the disabled employee's co-
workers who will lose a benefit of their seniority status.

                               14
Obviously we need not explore that claim, which the
Commission apparently did not advance in the district
court. We also point out that our decision does not
necessarily preclude Kralik from being excused from the
forced overtime provisions as the union in the future might
assure the Commission that it will agree to the
Commission's relieving Kralik from those provisions if she
is a qualified individual with a disability who needs the
accommodation. Such a waiver would eliminate the basis
for our conclusion that the accommodation Kralik seeks is
not reasonable, leaving for determination the question of
whether Kralik is a qualified individual with a disability
who would be entitled to be relieved from forced overtime as
a reasonable accommodation.

In light of our conclusions we will affirm the order for
summary judgment entered December 16, 1996. Moreover,
it is clear that the district court did not abuse its discretion
in denying the motion for reconsideration, either on the
grounds that the new material Kralik presented could not
have affected the outcome of the case in the district court
any more than it has here, see Harsco Corp. v. Zlotnicki,
779 F.2d 906, 909 (3d Cir. 1985), or on the separate
grounds that Kralik offered no justification for her untimely
presentation of the material. Consequently, we also will
affirm the order entered January 14, 1997, denying the
motion for reconsideration.

B. The cross appeal

The final issue that we address is the Commission's
contention that the district court erred in denying its
motion for summary judgment on the question of whether
Kralik was a qualified individual with a disability. The
Commission recognizes its apparent lack of standing to
appeal and acknowledges "that in the normal course a
party must be aggrieved by the final judgment of the
district court which it seeks to challenge." Br. at 16. In fact,
it even cites cases supporting the principle, namely Deposit
Guar. Nat'l Bank v. Roper, 445 U.S. 326, 333-34, 100 S.Ct.
1166, 1171-72 (1980), and Watson v. City of Newark, 746
F.2d 1008, 1010 (3d Cir. 1984). Yet it contends that courts
"have permitted an appeal from a seemingly favorable

                               15
disposition when adverse practical consequences, not
normally contemplated by legal theory or policy
considerations, manifest themselves." Br. at 16. On this
point the Commission contends that the denial of summary
judgment has prejudiced it in an EEOC proceeding, which
Kralik brought against the Commission and the union after
the district court denied her motion for reconsideration,
alleging retaliation for her having brought this action, and
discrimination based on her disability and her sex.

We are satisfied that even if in some cases a completely
successful party might have standing to appeal, this is not
such a case. In its partial denial of the Commission's
motion for summary judgment, the district court merely
held that at a particular time based on the record before it
there was a dispute of fact as to whether Kralik was a
qualified individual with a disability. While we certainly
understand why the Commission would like a ruling that
Kralik was not a qualified individual with a disability at
that time, the district court's inherently tentative
conclusion, though unhelpful to the Commission, is not
harmful to it either, because the conclusion does not
preclude the Commission from rejecting a new
accommodation sought by Kralik or from prevailing in any
challenge to that rejection on the grounds that she is not a
qualified individual with a disability.9 The Commission has
failed to identify sufficient adverse consequences of the
order from which it cross appeals to confer standing to
appeal. See In re DES Litig., 7 F.3d 20, 23-25 (2d Cir. 1993)
(dismissing appeal for lack of standing where appellant
prevailed below and was not aggrieved by collateral estoppel
effects or other prejudicial effects of determination below).

III. CONCLUSION

In view of the aforesaid, we will affirm the orders of
December 16, 1996, and January 14, 1997, and will
_________________________________________________________________

9. We do not suggest that we could not have reviewed the part of the
order denying summary judgment had we disagreed with the district
court's entry of summary judgment on the issues addressed in this
opinion.

                               16
dismiss the cross appeal. The parties will bear their own
costs on this appeal.

                               17
MANSMANN, Circuit Judge, dissenting.

Because I would not hold that a requested
accommodation for purposes of the ADA is per se
unreasonable where it conflicts with the seniority
provisions of a collective bargaining agreement, I
respectfully dissent. Although the majority holdingfinds
support in the caselaw, resolution of the issue before us is
not as straightforward as the majority opinion suggests.

Tension between the ADA and other labor relations
statutes, particularly the National Labor Relations Act
("NLRA"), is inevitable. As one commentator observed:

       While the ADA fosters equal employment opportunities
       for all Americans without regard to disability, its
       drafters ignored a very serious problem. The ADA,
       while promoting the rights of individual Americans in
       the workplace, conflicts dramatically with the[NLRA],
       an act designed to promote collective rights in the
       workplace. The ADA, the regulations, and the
       Interpretive Guidance all fail to address the issue of
       how to reasonably accommodate an individual with a
       disability under the ADA in a unionized setting--
       where such rights are typically received as part of a
       collective bargaining agreement. As a result of this
       oversight, conflicts between the NLRA and the ADA
       have arisen.

Robert W. Pritchard, Avoiding the Inevitable: Resolving the
Conflicts Between the ADA and the NLRA, 11 The Labor
Lawyer 375 (1995). This statutory tension has been
particularly apparent where, as here, the duty to provide a
reasonable accommodation under the ADA conflicts with an
arguably contrary collective bargaining obligation.

The text of the ADA does not "decisively answer the
question of whether `reasonable accommodation' can
require that otherwise valid seniority rights of other
employees be trumped." Eckles v. Consolidated Rail
Corporation, 94 F.3d 1041, 1047 (7th Cir. 1996). In this
way, the ADA differs from other anti-discrimination
statutes. For example, Title VII of the Civil Rights Act of
1964 (Title VII) specifically authorizes employers"[t]o apply
different standards of compensation, or different terms,

                               18
conditions, or privileges of employment pursuant to a bona
fide seniority or merit system. . . ." 42 U.S.C. S 2000e-2(h).
The Age Discrimination in Employment Act (ADEA) contains
an analogous provision: "It shall not be unlawful for an
employer, employment agency or labor organization . . . to
observe the terms of a bona fide seniority system.. . ." 29
U.S.C. S 623(f)(2)(A). Courts required to assess the
competing concerns of reasonable accommodation and the
sanctity of the collective bargaining agreement have
regularly relied on precedent generated under the
Rehabilitation Act of 1973 (the Rehabilitation Act). 29
U.S.C. S 701 et seq. "[T]he term `reasonable accommodation'
in the ADA was apparently borrowed from the regulations
issued by the Equal Employment Opportunity Commission
[EEOC] in implementation of the Rehabilitation Act. . . ."
Eckles, 94 F.3d at 1047. In determining whether an
accommodation which conflicts with a collective bargaining
agreement can ever be reasonable, courts construing the
Rehabilitation Act have adopted a per se rule: a collective
bargaining agreement will always "trump" the
accommodation.1

Confronted with Congress' failure to articulate definitively
a different rule in cases arising under the ADA, a number
of our sister courts of appeals have applied or have
indicated that they would apply this Rehabilitation Act per
se rule in reasonable accommodation cases arising under
the ADA.2 The majority, relying primarily upon the decision
_________________________________________________________________

1. See, e.g., Shea v. Tisch, 870 F.2d 786 (1st Cir. 1989); Carter v.
Tisch,
822 F.2d 465 (4th Cir. 1987); Daubert v. United States Postal Service,
733 F.2d 1367 (10th Cir. 1984).

2. Maj. opinion at   6. It is important to note that the courts in Milton v.
Scrivner, Inc., 53   F.3d 1118 (10th Cir. 1995), and Wooten v. Farmland
Foods, 58 F.3d 382   (8th Cir. 1995), discussed the per se rule in the
context of the ADA   in dicta. Neither analyzed the conflict between the
ADA and the NLRA.

It is important to note, too, that a number of commentators have
criticized application of a per se rule in the context of the ADA. See
Jerry
M. Hunter, Potential Conflicts Between Obligations Imposed on Employees
and Unions by the National Labor Relations Act and the Americans with
Disabilities Act, 13 N. Ill. U. L. Rev. 207 (1993); Robert W. Pritchard,

                                 19
in Eckles, embraces this approach. I am convinced,
however, that this per se rule, imported from cases decided
under the Rehabilitation Act, was not intended to apply in
the context of the ADA.

Although the plain text of the ADA does not definitively
resolve the issue before us, it does contain language which
suggests that seniority systems, inviolable under the
Rehabilitation Act, might, in certain circumstances, yield to
reasonable accommodation claims. Unlike the
Rehabilitation Act and Title VII, the ADA defines the term
"reasonable accommodation" to include: "job restructuring,
part-time or modified work schedules, reassignment to a
vacant position, acquisition or modification of equipment
. . . and other similar accommodations for individuals with
disabilities." 42 U.S.C. S 12111(9)(B). In a unionized
workplace, these potential accommodations will almost
always conflict to some degree with established seniority
systems. The ADA, however, indicates that these
accommodations should be made available without
addressing their impact on seniority concerns. While this
feature of the ADA is not dispositive, it is significant,
especially when it is considered against the background of
the ADA's broad sweep3 and its legislative history.

The Report of the House Committee on Education and
Labor supports the conclusion that under the ADA, the
collective bargaining agreements, including those provisions
impacting seniority, were not intended to "trump"
reasonable accommodation claims:
_________________________________________________________________

Avoiding the Inevitable: Resolving the Conflicts Between the ADA and the
NLRA, 11 The Labor Lawyer 375 (1995); Joanne Jocha Ervin, Reasonable
Accommodation and the Collective Bargaining Agreement Under the
Americans with Disabilities Act, 1991 Det. C. L. Rev. 925 (1991); Rose-
Daly Rooney, Note, Reconciling Conflicts Between the Americans with
Disabilities Act and the National Labor Relations Act to Accommodate
People With Disabilities, 6 DePaul Bus. L. J. 387 (1994).

3. The ADA expanded the scope of the Rehabilitation Act both in
coverage and in the degree of protection afforded. See, Note, Civil Rights
and the Disabled: A Comparison of the Rehabilitation Act of 1973 and the
Americans with Disabilities Act of 1990 in the Employment Setting, 54
Alb. L. Rev. 123 124-25 (1989).

                               20
       The collective bargaining agreement could be relevant
       . . . in determining whether a given accommodation is
       reasonable. For example, if a collective bargaining
       agreement reserves certain jobs for employees with a
       given amount of seniority, it may be considered as a
       factor in determining whether it is a reasonable
       accommodation to assign an employee with a disability
       without seniority to that job. However, the agreement
       would not be determinative on this issue.4

H.R. Rep. No. 485 (II), 101st Cong., 2d Sess. 63 (1990),
reprinted in 1990 U.S.C.C.A.N. 267, 345 (emphasis added).
These reports provide sound foundation for the argument
that Congress intended to depart from the line of authority
developed under the Rehabilitation Act holding that a
requested accommodation is per se unreasonable when it
conflicts with a seniority provision in a collective bargaining
agreement. The legislative history indicates that courts are
obligated to look beyond the collective bargaining
agreement in order to determine whether a particular
accommodation is reasonable. The status of the collective
bargaining agreement under the ADA has been diminished;
it is now only one factor to be considered in determining
whether a proposed accommodation is reasonable.

Additional evidence for this view of the role of collective
bargaining agreements under the ADA is found in the
legislative history relating to the "undue hardship"
provisions of the Act. Under the ADA, an employer's failure
to make "reasonable accommodations to the known
physical or mental limitations of an otherwise qualified
individual with a disability" constitutes prohibited
discrimination "unless [the employer] can demonstrate that
the accommodation would impose an undue hardship
on the operation of the business. . . ." 42 U.S.C.
S 12112(b)(5)(A).

The EEOC regulations interpreting this section provide
that an employer may demonstrate "that the provision of a
particular accommodation would be unduly disruptive to its
_________________________________________________________________

4. The Report of the Senate Committee on Labor and Human Resources
contains language identical to that of the House Report. See S.Rep. No.
101-116 at 32 (1989).

                               21
other employees or to the functioning of its business. The
terms of a collective bargaining agreement may be relevant
to this determination." 29 C.F.R. S 1630.15(d) app. (1996)
(emphasis added). The EEOC's Technical Assistance
Manual underscores the reduced role assigned to the
collective bargaining agreement under the ADA, stating that
"[t]he terms of a collective bargaining agreement may be
relevant in determining whether an accommodation would
impose an undue hardship." EEOC Technical Assistance
Manual S 3.09, at III-16 (1992). The example given in the
Manual to illustrate the status of a collective bargaining
agreement in determining undue hardship refers
specifically to a situation where the requested
accommodation conflicts with a seniority provision in a
collective bargaining agreement:

       A worker who has a deteriorated disc condition and
       cannot perform the heavy labor functions of a
       machinist job, requests reassignment to a vacant
       clerk's job as a reasonable accommodation. If the
       collective bargaining agreement has specific seniority
       lists and requirements governing each craft, it might be
       an undue hardship to reassign this person if others
       had seniority for the clerk's job.

Id.

Clearly, the EEOC did not assume that Congress, in
drafting the ADA, had incorporated the per se rule adopted
by the majority. If seniority provisions of a collective
bargaining agreement were inviolate under the Act, any
conflicting proposed accommodation would automatically
be unreasonable; there would never be a need to consider
whether such an accommodation posed an undue
hardship.

The text of the ADA, its legislative history, and the
relevant EEOC regulations convince me that there are
enough dissimilarities between the Rehabilitation Act and
the ADA to warrant rejection of the per se rule announced
by the majority in favor of a fact-intensive approach which
examines whether a particular proposed accommodation
constitutes an "undue hardship." This approach, which is
consistent with the statute, the legislative history, and the

                                22
regulations, protects all parties, including those other
employees subject to the terms of the collective bargaining
agreement by allowing each accommodation to be examined
in light of its cumulative impact on the business operation
as a whole. Far from being ignored under this approach,
the collective bargaining agreement is relegated to its
intended status as a factor to be considered in determining
whether a requested accommodation imposes an undue
hardship.

Although I recognize that the opinion of the Court of
Appeals for the D.C. Circuit in Aka v. Washington Hospital,
116 F.3d 876 (D.C. Cir. 1997), reh'g in banc granted and
judgment vacated, 124 F.3d 1302 (D.C. Cir. 1997), lacks
precedential value, I find its analysis and rejection of Eckles
sound and adopt its reasoning as the essence of my
disagreement with the majority:

       [I] reject the Eckles court's analysis because the plain
       language of the ADA requires employers to provide
       accommodations to the disabilities of qualified
       employees unless the accommodation in question
       would be "unreasonable" or would impose an"undue
       hardship," because the suggested "reasonable
       accommodations" listed in the statute include several
       . . . that commonly will conflict to some degree with the
       applicable collective bargaining agreements in
       unionized workplaces -- including the portions of those
       agreements creating "seniority rights," and because
       both the legislative history of the ADA and the relevant
       EEOC regulations clearly indicate that the fact that a
       particular accommodation would require some
       departure from the terms of a collective bargaining
       agreement should not in itself determine the question
       of whether an employer may be required to provide the
       accommodation. . . .

* * * *

       [I] likewise think it is inappropriate to draw blanket
       conclusions regarding whether the ADA can "trump"
       provisions in collective bargaining agreements, or
       whether the ADA can require the "sacrifice[ ]" of "rights"
       created in other employees by these agreements. . . .

                               23
       [A]fter all, in some cases the degree of infringement
       imposed . . . may impose virtually no "hardship" at all.
       If one nondisabled employee entitled to a vacant
       position under the seniority system in the collective
       bargaining agreement must wait an extra day before
       receiving an identical assignment because the earlier
       vacancy was filled by a disabled employee pursuant to
       the ADA, would this entail the "sacrifice" of rights
       created in other employees under the agreement? . . .
       [I] think that the ADA's "reasonable accommodation"
       provisions require us to bear in mind that conflicts
       between accommodations to disabled employees and
       the terms of applicable collective bargaining
       agreements exist on a continuum rather than
       functioning like an "on/off switch."5

At 895-96 (citations omitted).

The approach adopted by the majority in reliance on
Eckles could well lead to absurd results which run counter
to the broad remedial purposes of the ADA.6 The better
approach would be to jettison the per se rule developed in
the context of the far less sweeping Rehabilitation Act in
favor of the balancing process already in place under the
ADA in the determination of "undue hardship." The result
reached in Eckles under the undue hardship balancing
analysis would likely be unchanged where in this case, the
outcome would be far less certain.

For the foregoing reasons, I would reverse the order of
the district court granting summary judgment in favor of
the Commission based on the court's conclusion that the
requested accommodation was per se unreasonable. In all
other respects, I would affirm the order of the district court.
_________________________________________________________________

5. A similar result was reached in a case decided prior to Eckles, Emrick
v. Libbey-Owens-Ford Co., 875 F. Supp. 393, 396 (E.D. Tex. 1995).

6. The academic response to the decision in Eckles has been less than
enthusiastic. See William Mcdevitt, Seniority Systems and the Americans
with Disabilities Act: The Fate of Reasonable Accommodation after Eckles,
9 St. Thomas L. Rev. 359 (1997); Condon A. McGlothlen and Gary N.
Savine, Eckles v. Consolidated Rail Corp.: Reconciling the ADA with
Collective Bargaining Agreements: Is This the Correct Approach?; 46
DePaul L. Rev. 1043 (1997).

                                 24
A True Copy:
Teste:

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

                               25
