                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-26-2004

Williams v. Phila Housing Auth
Precedential or Non-Precedential: Precedential

Docket No. 03-1158




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                        PRECEDENTIAL       Alex H. Pierre (Argued)
                                           1315 Walnut Street - Suite 210
                                           Philadelphia, PA 19107-4705
 IN THE UNITED STATES COURT                   Attorney for Appellant
          OF APPEALS
     FOR THE THIRD CIRCUIT                 Patrick J. Harvey
                                           David E. Brier (Argued)
                                           Ballard, Spahr, Andrews & Ingersoll
             NO. 03-1158                   1735 Market Street - 51st Floor
                                           Philadelphia, PA 19103-7599
                                              Attorneys for Appellee
     EDWARD R. WILLIAMS;
   ANGELYNNE WILLIAM S, H/W

                   v.
                                                   OPINION OF THE COURT
   PHILADELPHIA HOUSING
AUTHORITY POLICE DEPARTMENT

          Edward R.Williams,
              Appellant                    STAPLETON, Circuit Judge:
                                                      The Americans with Disabilities
                                           Act of 1990 (“ADA”), 42 U.S.C. § 12101
                                           et seq., prohibits covered employers from
  On Appeal From the United States
                                           d i s c ri m i n at i n g a g a i n s t q u a l i f i e d
             District Court
                                           individuals on the basis of their
For the Eastern District of Pennsylvania
                                           disabilities. Edward Raymond Williams
 (D.C. Civil Action No. 00-cv-01709)
                                           was unable to carry a firearm as the result
            District Judge:
                                           of a mental condition, and was additionally
       Hon. Eduardo C. Robreno
                                           perceived by his employer to be unable to
                                           have access to firearms, or be around
                                           others carrying firearms.                 Granting
       Argued January 27, 2004
                                           summary judgment in favor of the
                                           Philadelphia Housing Authority (“PHA”),
BEFORE: NYGAARD, FUENTES and
                                           Williams’s employer, the District Court
   STAPLETON, Circuit Judges
                                           held that such limitations would not make
                                           Williams significantly restricted in the
   (Opinion Filed: August 26, 2004)
                                           major life activity of working because they
                                           did not prevent him from performing work
                                           in a broad range of jobs in various classes.
                                           Because the District Court did not consider
whether such limitations would prevent             postal, and having the means to do it.”
Williams from performing work in a class
                                                          Two days after the confrontation,
of jobs, and because a reasonable jury
                                                   PHA wrote to Williams and directed him
could conclude that Williams was actually
                                                   to report to the PHA radio room for duty.
(or perceived to be) precluded from
                                                   Williams did not return to work, but
working in a class of jobs, we will now
                                                   instead began to call in sick on a daily
reverse that grant of summary judgment
                                                   basis. On June 25, 1998, PHA ordered
a n d r e m a n d W i l l ia m s ’ s A D A
                                                   Williams to undergo a psychological
discrimination claim (and corresponding
                                                   examination with its psychologist, Dr.
claim under the Pennsylvania Human
                                                   Lauren Finley.
Relations Act) for further proceedings.
We will affirm the District Court’s                        The parties agree that, sometime in
determination with respect to Williams’s           June or July 1998, Williams submitted an
retaliation claims because Williams has            application for a medical leave of absence
not proffered sufficient evidence to               from July 2, 1998 through August 28,
support a retaliation claim.                       1998. The request included a “medical
                                                   certification form” completed by Helen
 I. Factual and Procedural Background
                                                   Huffington, M.S.S., a counselor with
A. The Facts Viewed in the Light Most              Delaware County Psychological Services,
       Favorable to Williams                       who diagnosed Williams as suffering from
                                                   “Major Depression, recurrent, severe.”
        Williams was hired by PHA as a
                                                   A198. PHA approved the request. On
police officer and worked for PHA for 24
                                                   July 29, 1998, PHA Assistant Chief Aaron
years until his termination. On May 19,
                                                   Hughes wrote to Williams regarding his
1998, shortly after arriving for an evening
                                                   employment status. Hughes wrote, “As of
shift, Williams received a page to report to
                                                   August 20, 1998, you will have exhausted
the sergeant’s office of PHA’s police
                                                   all of your sick leave and annual leave
department. After being confronted by a
                                                   benefits. Therefore, you will have to
superior officer about his fractious
                                                   request through memorandum a leave of
interactions with other employees,
                                                   absence. . . . [F]ailure to do so will mean
Williams yelled and made a number of
                                                   that you have voluntarily resigned as a
profane and threatening remarks.
                                                   member of this police department.” A197.
        W i ll ia m s w a s  im m ediate ly        Williams would again be asked, on
suspended without pay.          Later that         September 22, 1998, to apply for a leave of
evening, he called a counselor with                absence, and did so.
Delaware County Psychological Services,
                                                          On August 17, 1998, Williams’s
and remarked, “I understand why people
                                                   personal psychologist, Dr. Marjory Levitt,
go postal.” According to a PHA police
                                                   wrote a letter to Hughes regarding
officer who later spoke with the counselor,
                                                   Williams. The letter stated, in pertinent
Williams talked of “smoking people, going

                                               2
part:                                            that Sgt. Williams should
                                                 not resume active duty,
                Sgt. Edward R.
                                                 involving his usual and
        Williams, Sr., has requested
                                                 normal work activities,
        that I write to you and report
                                                 unless he is under the proper
        on his readiness to return to
                                                 care of me dic a l an d
        full ti m e e m p lo ym ent
                                                 psychological personnel.
        beginning August 20, 1998.
                                                 He requires psychological
                Sgt. Williams states             treatment for depression and
        that he is fully prepared                stress management. He also
        p h y s i c a l l y     a n d            requires an evaluation by
        psychologically to resume                m e d i c a l p e r s o n n el to
        his professional duties. He              determine if he may be
        assures me that he is                    further helped                 by
        emotionally stable and able              psychotropic medications.
        to perform reliably and                  Sgt. Williams can resume
        fulfill his responsibilities.            working on alternate work
        He is not taking any                     assignments and should do
        psychotropic medications                 so for a minimum period of
        and denies other substance               3 months in order to provide
        use, with the exception of a             an initial opportunity for
        medication for hypertension.             him to begin receiving
        He has not been evaluated                bene fits f r o m regu lar
        by a psychiatrist, nor has he            medicinal               and/or
        been in regular individual               psychological treatment. He
        outpatient treatment. He                 should be reevaluated after
        does request that his contact            this time in order to
        with [the PHA superior                   determine whether or not he
        officer Williams confronted              can resume active duty with
        on May 19, 1998] be as                   t h e conti n u a t i o n of
        limited as possible.                     p r e s c r ib e d t r e a tm e n t
                                                 regiment             for      the
A199.
                                                 management of his stress
       In August and September 1998,             and depression.
Williams attended three appointments with
                                                        Sgt. Williams [sic]
Dr. Finley, PHA’s psychologist.        On
                                                 condition appears to be
September 21, 1998, Dr. Finley shared her
                                                 exacerbated by considerable
evaluation of Williams’s fitness for duty:
                                                 tension between himself and
        It is my professional opinion            one of his superiors. . . . It


                                             3
             could be helpful if                       pending a reevaluation.
             t h e d i f f iculties
             between them could
             be mediated or if the             A201.
             amount of contact
                                                      On October 13, 1998, after Dr.
             between the two was
                                               Finley had cleared Williams for restricted
             greatly reduced.
                                               duty, Williams requested that PHA
A200. Upon receipt of the Finley letter,       temporarily reassign him to work in the
PHA requested clarification of Dr.             PHA training unit. Hughes responded:
Finley’s findings, to which Dr. Finley
                                                       [I]t is the position of this
responded on October 10, 1998:
                                                       police department that the
      First, I have been called                        specific position that you are
      upon by human resources to                       requesting is not open to
      provide a con sultative                          you due to your on-going
      evaluation for [Sergeant]                        treatment with Dr. Lauren
      Edward Williams. I have                          Finley . . . and her
      not nor will I be working                        recommendation that you
      with [Sergeant] Williams on                      should not carry a weapon
      an ongoing basis. Second,                        while still under her care for
      Mr. Williams is fully                            the next several months.
      capable of working, for a                        This department has also
      temporary period, in either                      concluded that once you
      an administrative and/or                         have completed all of your
      clerical capacity. He should                     treatment with Dr. Finley,
      n o t carry a w eapon ,                          releasing you to return to
      however, for a minimum                           full duty, with authorization
      period of three months. He                       to carry firearms once again,
      can work around other                            you are to report back to
      officers who will be wearing                     uniform patrol duty.
      their weapon. Third, it [is]
                                               A204.
      anticipated that [Sergeant]
      Williams will be able to                        One day later, Williams wrote to
      fully return to active duty,             Hughes requesting an assignment “in the
      resuming his usual job                   [PHA] radio room until [his] 3 month
      responsibilities after this              evaluation [was] over. . . .” PHA did not
      approximate three month                  respond to that request until this litigation
      period. However, a more
      definite time frame cannot
      be provided at this time,

                                           4
ensued.1                                                 evidence and apply for a
                                                         medical leave of absence.
       On November 19, 1998, Deputy
                                                         This information and your
Chief of Police Ricks wrote an internal
                                                         formal written request
memorandum to Carl Marinelli, Assistant
                                                         should be received by my
General Manager for Human Resources,
                                                         o f f i c e n o l a t er t h an
regarding Williams’s employment status.
                                                         December 18, 1998. Failure
Wrote Ricks, “Williams has exhausted all
                                                         to do so will result in PHA
of his leave time and should apply for a
                                                         terminating             your
medical leave of absence. If he does not
                                                         employment as of that date.
apply for a medical leave of absence by
November 30, 1998, it is the position of         A206. Williams did not contact Marinelli
this department that Human Resources             regarding an application for medical leave
terminate Edward Williams according to           and did not respond to the letter.
PHA personnel policy regarding medical
                                                         On December 29, 1998, Marinelli
leave.” A863.
                                                 sent a letter to Williams notifying him that
       On December 3, 1998, Marinelli            he was being terminated.
wrote to Williams requesting that he file
                                                                 In my letter to you
for medical leave.
                                                         dated December 3, 1998 I
        As you know, you have                            asked that you request a
        exhausted all leave time                         medical leave of absence
        available as a police Officer                    and submit that request
        with the P hiladelphia                           along with sup porti ng
        Housing Authority. It is                         medical evidence to me no
        now necessary that you                           later than December 18,
        obtain the required medical                      1998.       As you have
                                                         submitted neither, I am
                                                         notifying you of your
    1
      The record is unclear as to whether                t e rmina tio n f r o m t h e
PHA responded to this request, but we                    Philad elphia H ousing
assume for summary judgment purposes                     Authority effective August
that PHA did not respond to the radio                    28, 1998. Please call . . . to
room request. In the context of this                     discuss your termination
litigation, an affidavit from a PHA Police               benefits.
Department Administrator, John O’Brien,
                                                 A249.
indicated that “[i]nstead of placing Sgt.
Williams in the radio room, PHA offered                  B. Procedural Background
him a leave of absence that would have
                                                       Williams filed a complaint against
allowed him to return to work as a police
                                                 PHA in the United States District Court for
sergeant within 90 days.” A202.

                                             5
the Eastern District of Pennsylvania                         III. The Retaliation Claim
asserting several causes of action. After
                                                           The ADA provides: “No person
the District Court ruled on PHA’s motion
                                                    shall discriminate against any individual
to dismiss and motion for judgment on the
                                                    because such individual has opposed any
pleadings, on ly c l ai m s assertin g
                                                    act or practice made unlawful by [the
discrimination under the ADA and
                                                    ADA] or because such individual made a
Pennsylvania Human Relations Act
                                                    charge . . . under [the ADA].” 42 U.S.C. §
(“PHRA”) remained.         Ultimately, the
                                                    12203(a). “Thus, it is unlawful for an
District Court granted PHA’s motion for
                                                    employer to retaliate against an employee
summary judgment on those remaining
                                                    based upon the employee’s opposition to
claims.     Williams timely moved for
                                                    anything that is unlawful under the ADA.”
reconsideration of that order. The District
                                                    Shellenberger v. Summit Bancorp, Inc.,
Court denied that motion, and Williams
                                                    318 F.3d 183, 188 (3d Cir. 2003).
filed a timely notice of appeal.
                                                            “[I]n order to establish a prima
II. Jurisdiction and Standard of Review
                                                    facie case of illegal retaliation under the
       The District Court had federal               anti-discrimination statutes, a plaintiff
question jurisdiction under 28 U.S.C. §             must show: ‘(1) protected employee
1331 with respect to Williams’s ADA                 activity; (2) adverse action by the
claims, and supplemental jurisdiction over          employer either after or contemporaneous
Williams’s PHRA claims under 28 U.S.C.              with the employee’s protected activity; and
§ 1367. This Court has final order                  (3) a causal connection between the
jurisdiction under 28 U.S.C. § 1291 to              employee’s protected activity and the
review the District Court’s denial of               employer’s adverse action.’” Fogleman v.
reconsideration, which here ended the               Mercy Hosp., Inc., 283 F.3d 561, 567-68
proceedings in that Court. See Sheehan v.           (3d Cir. 2002) (quoting Krouse v. Am.
Beyer, 51 F.3d 1170, 1174 (3d Cir. 1995).           Sterilizer Co., 126 F.3d 494, 500 (3d Cir.
                                                    1997)). Williams argues on appeal that
        We review the District Court’s
                                                    PHA terminated him in retaliation for his
grant of summary judgment to PHA using
                                                    request for reassignment to PHA’s radio
the same standard that the District Court
                                                    room as a reasonable accommodation.2
applied. Omnipoint Comm. Enter., L.P. v.
Newton Township, 219 F.3d 240, 242 (3d
Cir. 2000). “Summary judgment is proper
                                                         2
if there is no genuine issue of material fact              Unlike a claim for discrimination
and if, viewing the facts in the light most         under the ADA, an ADA retaliation claim
favorable to the nonmoving party, the               based upon an employee having requested
moving party is entitled to judgment as a           an accommodation does not require that a
matter of law.” Carter v. McGrady, 292              plaintiff show that he or she is “disabled”
F.3d 152, 157 (3d Cir. 2002).                       within the meaning of the ADA. “The
                                                    right to request an accommodation in good

                                                6
      Applying the McDonnell Douglas                        arguendo that Williams could make out a
framework,3 the District Court assumed                      prima facie showing of retaliation. The
                                                            Court then noted that PHA had put forth a
                                                            legitimate reason for terminating Williams:
faith is no less a guarantee under the ADA                  Williams had exhausted all available leave
than the right to file a complaint with the                 time to which he was entitled and failed to
EEOC, and we have already explained that                    request a leave of absence or otherwise
the ADA protects one who engages in the                     contact PHA in response to Carl
latter activity without regard to whether                   Marinelli’s December 3, 1998, letter.
t h e c o m p l a i n a n t i s ‘ d i s a b le d .’ ”       Upon shifting the burden back to the
Shellenberger, 318 F.3d at 191. Thus, as
opposed to showing disability, a plaintiff
need only show that she had a reasonable,
good faith belief that she was entitled to                          opportunity to prove by a
request the reasonable accommodation she                            pr e ponder a n c e of th e
requested. See id.                                                  evidence that the legitimate
                                                                    reasons offered by the
      3
      The burden-shifting framework of                              defendant were not its true
McDonnell Douglas Corp. v. Green, 411                               reasons, but were a pretext
U.S. 792 (1973) applies to ADA retaliation                          for discrimination. See Tex.
claims. See Shaner v. Synthes, 204 F.3d                             Dep’t of Community Affairs
494, 500 (3d Cir. 2000).                                            v. Burdine, 450 U.S. 248,
       Briefly summarized, the                                      252-53, 101 S.Ct. 1089,
       McDonnell Douglas                                            1093, 67 L.Ed.2d 207
       analysis proceeds in three                                   (1981) (citations omitted).
       stages. First, the plaintiff                                 Wh ile the burden of
       must establish a prima facie                                 production may shift, “[t]he
       case of discrimination. If                                   ultimate burden of
       the plaintiff succeeds in                                    persuading the trier of fact
       establishing a prima facie                                   that the defendant
       case, the burden shifts to the                               intentionally discriminated
       defendant “to articulate                                     against the plaintiff remains
       some        legitimate,                                      at all times with the
       nondiscriminatory reason                                     plaintiff.”       Id.     Our
       f o r t h e e m p lo y e e ’s                                experience is that most
       rejection.”     [McDonnell                                   cases turn on the third stage,
       Douglas, 411 U.S. at 802,                                    i.e., can the pla intiff
       93 S.Ct. at 1824.] Finally,                                  establish pretext.
       should the defendant carry                           Id. at 500-01 (quoting Jones v. School
       this burden, the plaintiff                           Dist. of Phila., 198 F.3d 403, 410 (3d Cir.
       then must have an                                    1999)) (alterations in original).

                                                        7
plaintiff, the District Court found that he                           two days between the protected activity
presented “very little in the way of                                  engaged in and the alleged retaliation
e v i d e n c e showing ‘weak n e s s e s,                            sufficed in Jalil v. Avdel Corp., 873 F.2d
i m p l a u s i b i l i ti e s , i n c o n s i s te n c i e s ,       701, 708 (3d Cir.1989), to support an
incoherencies, or contradictions in the                               inference of a causal connection between
employer’s proffered legitimate reasons                               the two. Similarly, in Shellenberger,
for its action.’” Dist. Court Op. at 18                               commen ts made by a supervisor
(quoting Fuentes v. Perskie, 32 F.3d 759,                             suggesting retaliation ten days before
765 (3d Cir. 1994)). In addition, the Court                           termination, along with other evidence of
held that the timing of W illiams’s                                   retaliation, were sufficient to establish a
termination on December 29, 1998,                                     prima facie showing of causation.
occurring over two months after the                                   Shellenberger, 318 F.3d at 189.
request for an accommodation on October
                                                                             Here, over two months elapsed
21, 1998, was not suggestive of a causal
                                                                      between the time Williams requested a
connection between Williams’s request for
                                                                      radio room assignment and the time that he
an accommodation and termination. The
                                                                      was terminated. In cases like this one,
Court concluded that the summary
                                                                      “where ‘the temporal proximity is not so
judgment record would not support a
                                                                      close as to be unduly suggestive,’ we have
finding that PHA’s explanation for the
                                                                      recognized that ‘timing plus other
termination was pretextual. W e agree.
                                                                      evidence may be an appropriate test. . . .’”
        In support of his retaliation claim,                          Thomas v. Town of Hammonton, 351 F.3d
Williams relies primarily on the temporal                             108, 114 (3d Cir. 2003) (quoting Estate of
proximity between his October 21, 1998,                               Smith v. Marasco, 318 F.3d 497, 513 (3d
request for an accommodation and his                                  Cir. 2003) (internal quotation marks
December 29, 1998, termination. We have                               omitted)). 4 Williams has, however, put
held in the ADA retaliation context that
“temporal proximity between the protected
                                                                          4
activity and the termination [can be itself]                                Williams argues that the retaliatory
sufficient to establish a causal link.”                               action in this case occurred not on the date
Shellenberger, 318 F.3d at 183 (quoting                               that he was terminated, but on November
Woodson v. Scott Paper Co., 109 F.3d                                  19, 1998—the day an internal PHA memo
913, 920 (3d Cir.1997)) (internal quotation                           directed Marinelli to write to Williams and
marks omitted). However, “the timing of                               demand that he apply for medical leave or
the alleged retaliatory action must be                                be terminated. The memo indicated that
unusually suggestive of retaliatory motive                            “it is the position of this department that
before a causal link will be inferred.”                               Human Resources terminate Edward
Shellenberger, 318 F.3d at 189 n.9                                    Williams according to PHA personnel
(quoting Krouse, 126 F.3d at 503) (internal                           policy regarding medical leave” if
quotation marks omitted). For example,                                Williams “does not apply for a medical
                                                                      leave of absence by November 30, 1998.”

                                                                  8
forth no other evidence suggesting that              dispute that, absent an application and
PHA terminated him because he requested              s u p p o rt i n g m e d i c a l c er t if i c a ti o n,
a radio room assignment. M oreover, the              termination was the only option available
evidence supporting PHA’s alternative                to PHA under the relevant, consistently
explanation is quite compelling.        As           applied policy.
Williams acknowledges, PHA had granted
                                                            Because Williams has failed to
Williams medical leave on two prior
                                                     proffer any evidence of retaliation other
occasions, and there was no indication that
                                                     than the not unduly suggestive temporal
PHA would not have done so again had
                                                     relationship between his request for an
Williams simply contacted Marinelli, as
                                                     accommodation and his termination, we
the letter requested.5 Nor is there any
                                                     must agree with the District Court that “no
                                                     reasonable jury could conclude that the
A510. Even assuming arguendo that                    two events shared a causal link” for
November 19, 1998, were the date of                  purposes of an ADA retaliation claim.
retaliatory action in this case, our                 Dist. Court Op. at 22.
classification of this case as one “where                   IV. The Discrimination Claim
the temporal proximity is not so close as to
be unduly suggestive” would remain the                     Section 12112(a) of Title 42,
same.                                                United States Code, provides that:

  5                                                           No covered entity shall
   Williams hypothetically suggests in his
                                                              discriminate again st a
brief that, although he was aware of
                                                              qualified individual with a
PHA’s general policy on leaves of
                                                              disability because of the
absences and PHA’s ability to grant a
                                                              disability of such individual
leave of absence for any reason, “perhaps”
                                                              in regard to job application
Marinelli’s request in the December 3,
                                                              procedures, the hiring,
1998, letter to obtain the “required medical
                                                              advancement, or discharge
evidence” led him to believe that a leave
                                                              of employees, employee
of absence would now only be available to
                                                              compensation, job training,
him upon providing that evidence. He
                                                              and other terms, conditions,
then argues in his brief that, if he held such
                                                              and      privileges of
a belief, he would have also thought that it
would be impossible to obtain such
evidence because he was capable of
working and PHA’s own expert had                     argument are not evidence to be
cleared him for restricted work.                     considered by this Court.” Versarge v.
        There is, however, no record                 Township of Clinton N.J., 984 F.2d 1359,
support for such an argument. “[W]e have             1370 (3d Cir. 1993). Williams has not
repeatedly held that unsubstantiated                 cited to any record evidence indicating that
arguments made in briefs or at oral                  he held such a belief.

                                                 9
              employment.                          this context include refusing to make
                                                   reaso nable accommodations for a
Id.6    A “qualified individual with a
                                                   plaintiff’s disabilities.      The ADA
disability” is defined by the ADA as a
                                                   specifically provides that an employer
person “with a disability who, with or
                                                   “discriminates” against a qualified
without reasonable accommodation, can
                                                   individual with a disability when the
perform the essential functions of the
                                                   employer does “‘not mak[e] reasonable
employment position that such individual
                                                   accommodations to the known physical or
holds or desires.” 42 U.S.C. § 12111(8).
                                                   mental limitations of the individual unless
       To establish a prima facie case of          the [employer] can demonstrate that the
discrimination under the ADA, a plaintiff          accommodation would impose an undue
must therefore show “(1) he is a disabled          hardship on the operation of the business
person within the meaning of the ADA; (2)          of the [employer].’” Taylor, 184 F.3d at
he is otherwise qualified to perform the           306 (quoting 42 U.S.C. § 12112(b)(5)(A))
essential functions of the job, with or            (alterations in original). “Reasonable
without reasonable accommodations by the           accommodation” further “includes the
employer; and (3) he has suffered an               employer’s reasonable efforts to assist the
otherwise adverse employment decision as           employee and to communicate with the
a result of discrimination.” Taylor, 184           employee in good faith,” Mengine v.
F.3d at 306 (quoting Gaul v. Lucent                Runyon, 114 F.3d 415, 416 (3d Cir. 1997),
Technologies, 134 F.3d 576, 580 (3d                under what has been termed a duty to
Cir.1998) (citing Shiring v. Runyon, 90            engage in the “interactive process,” which
F.3d 827, 831 (3d Cir.1996))) (internal            we will discuss in detail infra.
quotation marks omitted).
                                                            Williams alleges that PHA
       Adverse employment decisions in             discriminated against him by (1) failing to
                                                   p r o v i d e f o r t h e re a s o n a b le
                                                   accommodations that he requested and (2)
       6
         Williams has also brought his             breaching its duty to engage in the
disability discrimination claim under the          interactive process by not responding in
Pennsylvania Human Relations Act                   good faith to his requests for
(“PHRA”). An “analysis of an ADA claim             accommodations. The District Court held,
applies equally to a PHRA claim.” Taylor           inter alia, that Williams was not
v. Phoenixville School Dist., 184 F.3d 296,        “disabled” within the meaning of the ADA
306 (3d Cir. 1999) (citing Kelly v. Drexel         and therefore could not make a prima facie
Univ., 94 F.3d 102, 105 (3d Cir. 1996)).           showing of disability discrimination. We
Accordingly, we will only discuss                  now review de novo whether Williams
Williams’s ADA claim because our                   made such a showing.
analysis of that claim is, under the
                                                                 A. Disability
circumstances of this case, coterminous
with the PHRA claim.

                                              10
        A “disability” is defined by the           “substantially limited” in performing a
ADA as: “(A) a physical or mental                  major life activity if the individual is
impairment that substantially limits one or
                                                          (i) Unable to perform a
more of the major life activities of [an]
                                                          major life activity that the
individual; (B) a record of such an
                                                          average person in the
impairment; or (C) being regarded as
                                                          general population can
having such an impairment.” 42 U.S.C. §
                                                          perform; or (ii) Significantly
12102(2). Williams asserts that he met the
                                                          r e s t r ic t e d a s t o th e
criteria for disability under § 12102(2)(A)
                                                          c o n d i t io n , m a nne r o r
(“actual disability”) because he had “a
                                                          duration under which an
physical or mental impairment that
                                                          individual can perform a
substantially limits one or more of the
                                                          particular major life activity
major life activities,” in that his mental
                                                          as comp ared to th e
condition prevented him from carrying
                                                          condition, m ann er, o r
firearms. Williams further asserts that he
                                                          duration under which the
met the criteria for disability under §
                                                          average person in the
12102(2)(C) (“regarded as disabled”)
                                                          general population can
because his employer, PHA, wrongly
perceived him to be disabled when it
treated him as unable to work with, have
                                                   While there is some question as to the
access to, or be around others carrying,
                                                   level of deference EEOC regulations
firearms.
                                                   interpreting definitional terms of the ADA
           i. Actual Disability                    are entitled to after the Supreme Court’s
                                                   decision in Sutton v. United Air Lines, Inc.,
       With respect to determining
                                                   527 U.S. 471 (1999), neither of the parties
whether an individual is actually disabled
                                                   challenges the reasonableness of the
within the meaning of the ADA, EEOC
                                                   EEOC’s regulations with respect to the
Regulations 7 provide that an individual is
                                                   term “disability.” See Toyota Motor Mfg.,
                                                   Ky., Inc. v. Williams, 534 U.S. 184, 194
                                                   (2002) (“[N]o agency has been given
    7
     “Because the ADA does not define              authority to issue regulations interpreting
many of the pertinent terms, we are guided         the term ‘disability’ in the ADA.
by the Regulations issued by the Equal             Nonetheless, the EEOC has done so. See
Employment Opportunity Commission                  29 CFR §§ 1630.2(g)-(j) (2001). Because
(‘EEOC’) to implement Title I of the Act.          both parties accept the EEOC regulations
See 42 U.S.C. § 12116 (requiring the               as reasonable, we assume without deciding
EEOC to implement said Regulations); 29            that they are, and we have no occasion to
C.F.R. § 1630.2.” Deane v. Pocono                  decide what level of deference, if any, they
Medical Center, 142 F.3d 138, 143 n.4 (3d          are due.”) (citing Sutton, 527 U.S. at 479-
Cir. 1998) (en banc) (citations omitted).          80).

                                              11
              perform that same                     activity of working:
              major life activity.
                                                           (A) The geographical area
29 C.F.R. § 1630.2(j)(1). Several factors                  to which the individual has
are to be considered in evaluating whether                 reasonable access;
an individual is substantially limited in a
                                                           (B) The job from which the
major life activity: “(i) The nature and
                                                           i n d i v id u a l h a s b e e n
severity of the impairment; (ii) The
                                                           disqualified because of an
duration or expected duration of the
                                                           impairment, and the number
impairment; and (iii) The permanent or
                                                           and types of jobs utilizing
long term impact, or the expected
                                                           similar training, knowledge,
permanent or long term impact of or
                                                           skills or abilities, within that
resulting from the impairment.” Id. §
                                                           geographical area, from
1630.2(j)(2).
                                                           which the individual is also
        Williams contends that his inability               disqualified because of the
to carry a firearm substantially limited him               impairment (class of jobs);
in the major life activity of “working.”                   and/or
The EEOC regulations provide that, in
                                                           (C) The job from which the
determining whether an individual is
                                                           i n d i v id u a l h a s b e e n
restricted in the major life activity of
                                                           disqualified because of an
working,
                                                           impairment, and the number
       [t]he term ‘substantially                           and types of other jobs not
       limits’ means significantly                         utilizing similar training,
       restricted in the ability to                        knowledge, skills or
       perform either a class of                           abilities, within that
       jobs or a broad range of jobs                       geographical area, from
       in various classes as                               which the individual is also
       compared to the average                             disqualified because of the
       person having comparable                            impairment (broad range of
       training, skills and abilities.                     jobs in various classes).
       The inability to perform a
                                                    Id. §1630.2(j)(3)(ii).
       single, particular job does
       not constitute a substantial                       Summarizing these regulations, the
       limitation in the major life                 Supreme Court has held that
       activity of working.
                                                           [t]o be substantially limited
Id. § 1630.2(j)(3)(i). Several specific                    in the major life activity of
additional factors are to be considered in                 working, then, one must be
determining whether an individual is                       precluded from more than
substantially limited in the major life                    o n e t ype o f job , a

                                               12
               specialized job, or a                  thereby not precluding him from
               particular job of                      performing work in a broad range of jobs.
               choice.     If jobs
                                                              We agree with the District Court
               utilizing          an
                                                      that Williams’s testimony establishes that
               individual’s skills
                                                      he was not precluded from a “broad range
               (but perhaps not his
                                                      of jobs” within the meaning of 29 C.F.R. §
               or her unique talents)
                                                      1630.2(j)(3)(ii)(C).        Ho wever, the
               are available, one is
                                                      r e gula tions prov ide th a t one is
               not precluded from a
                                                      substantially limited in the major life
               substantial class of
                                                      activity of working if one is significantly
               jobs. Similarly, if a
                                                      restricted in one’s ability to perform
               host of different
                                                      “either a class of jobs or a broad range of
               types of jobs are
                                                      jobs.”      29 C.F.R. § 1630.2(j)(3)(i)
               available, one is not
                                                      (emphasis added). It is clear from the
               precluded from a
                                                      regulations that, even if one has the ability
               broad range of jobs.
                                                      to perform a broad range of jobs, one is
Sutton, 527 U.S. at 493. The question of              nevertheless disabled if one is significantly
whether an individual is substantially                restricted in one’s ability to perform most
limited in a major life activity is a question        of the jobs in one’s geographical area that
of fact. See Gagliardo v. Connaught Lab.,             utilize training, knowledge, skills and
Inc., 311 F.3d 565, 569 (3d Cir. 2002).               abilities similar to the job one has been
                                                      disqualified from performing.            The
        The District Court, viewing
                                                      EEOC’s Technical Assistance Manual, for
Williams’s actual limitation (i.e., his
                                                      example, refers to the following scenario
inability to carry a firearm resulting from
                                                      as an example of being significantly
his severe depression) as one that
                                                      restricted in one’s ability to perform a
“temporarily limit[ed] the jobs that were
                                                      “class of jobs:”
available to [him] to those jobs that do not
require him to carry a firearm,” Dist. Court                 A computer programmer
Op. at 29, held that Williams was not                        develops a vision
precluded from performing a broad range                      impairment that does not
of jobs, and therefore was not disabled                      substantially limit her ability
within the meaning of the ADA. The                           to see, but because of poor
District Court noted that Williams had                       contrast is unable to
testified at a deposition that he could have                 distinguish print on
performed the duties of a bus driver,                        computer screens.            Her
chauffeur, and tow truck operator, and                       impairment prevents her
could have worked for the public                             from working as a computer
transportation agency SEPTA, a rental car                    o p e r a tor , p ro g ra m m er ,
agency, or in the radio room at PHA,                         instructor, or systems

                                                 13
                analyst.     She is                       assignment available in the PHA police
                substantially limited                     department that did not require the use of
                in working, because                       a firearm was work in the PHA radio
                her im pairment                           room.” A202. Moreover, PHA has not
                prevents her from                         challenged, for summary judgment
                working in the class                      purposes, that Williams was incapable of
                of jobs requiring use                     working in most law enforcement
                of a computer.                            positions due to his inability to carry a gun.
                                                          Instead, PHA argues that (1) “law
Equal Employment Opportunity
                                                          enforcement” cannot constitute a “class”
Commission, A Technical Assistance
                                                          of jobs, and (2) Williams’s inability to
Manual on the Employment Provisions
                                                          work with firearms was, in fact, temporary
(Title I) of the Americans with Disabilities
                                                          and, accordingly, not a “significant
Act II-7 (Jan. 1992) (“Technical Assistance
                                                          restriction.”
Manual”).
                                                                  PHA does not explain why law
        The District Court did not address
                                                          enforcement positions are not a “class of
whether Williams was significantly
                                                          jobs” within the meaning of that phrase as
restricted in his ability to perform a class
                                                          used in the EEOC’s regulations, and our
of jobs because of his depression and the
                                                          reading of those regulations persuades us
resulting inability to carry a firearm. A
                                                          that the record would support a finding in
critical question was thus left unanswered:
                                                          favor of Williams on this issue. For
Compared to an average person living in
                                                          example, assuming the jury were
the same geographical region as Williams
                                                          convinced that Williams’s condition
with similar training, knowledge, skills,
                                                          substantially restricts his ability to perform
and abilities, was Williams substantially
                                                          law enforcement jobs, it seems to us that
restricted in his ability to perform jobs in
                                                          Williams would be no less limited in the
law enforcement? We conclude that the
                                                          major life activity of working than the
record would permit a reasonable jury to
                                                          computer programmer referenced by the
conclude that he was.
                                                          EEOC as being “substantially limited in
          Williams contends that his inability            working, because her impairment prevents
to carry a firearm precludes him from                     her from working in the class of jobs
serving in most law enforcement jobs                      requiring use of a computer.” Technical
w h e r e v e r l o c a te d a n d t h e re f o re        Assistance Manual at II-7.
significantly restricts his ability to perform
                                                                  We reject the PHA’s suggestion
that class of jobs. While the record has not
                                                          that Sutton teaches to the contrary. In
been fully developed on this issue, it does
                                                          Sutton, a group of myopic job applicants
su p p o r t t h a t co n t e nt io n .    P HA
                                                          challenged an airline’s minimum vision
administrator John O’Brien testified in an
                                                          requirement for the job of “global airline
affidavit that “[a]s of 1998, the only job
                                                          pilot.” The Supreme Court noted that this

                                                     14
position, global airline pilot, was a “single        appendicitis, and in fluen za, being
job” (and, in fact, was a position with one          impairments of a temporary nature “with
single employer), and did not preclude the           little or no long term or permanent
group from pursuing “a number of other               impact,” cannot as a matter of law
positions utilizing petitioners’ skills, such        substantially limit an individual in a major
as regional pilot and pilot instructor to            life activity. See EEOC Interpretive
name a few, [that] are available to them.”           Guidance, 29 C.F.R. Pt. 1630, App. §
Sutton, 527 U.S. at 493. The Court noted             1630.2(j). However, Williams does not
that under the Interpretative Guidance               need to show that his disability is
provided by the EEOC, “an individual who             permanent; instead, under the EEOC
cannot be a commercial airline pilot                 regulations, the “nature and severity” of
because of a minor vision impairment, but            Williams’s impairment and its “duration or
who can be a commercial airline co-pilot             expected duration,” along with the
or a pilot for a courier service, would not          “permanent or long term impact” of that
be substantially limited in the major life           impairment, are factors to be considered in
activity of working.” Id.                            determining whether an individual is
                                                     substantially limited in a major life
       In Sutton, petitioners could not be
                                                     activity.    29 C.F.R. § 1630.2(j)(2).
one type of pilot working for one
                                                     Because an impairment and its impact may
particular employer, but could hold various
                                                     be less than permanent and still
other pilot jobs. Williams, on the other
                                                     “significantly restrict” a person’s ability to
hand, could not work in most law
                                                     perform a class of jobs, the current record
enforcement positions so long as his
                                                     precludes summary judgment based on this
condition persisted.
                                                     issue.
       With respect to the expected
                                                             Williams’s medical record reflects
duration of Williams’s impairment, the
                                                     that he was professionally diagnosed with
record is not fully developed, but we
                                                     “Major Depressive Disorder” as early as
conclude that there is enough evidence to
                                                     December of 1996, and that he was under
permit resolution of the issue in Williams’s
                                                     continuing treatment for depression in the
favor. As a matter of law, a “transient,
                                                     fall of 1999, more than a year after his
nonpermanent condition,” McDonald v.
                                                     termination. Examining clinicians on both
Commonwealth, 62 F.3d 92, 94-97 (3d Cir.
                                                     sides agreed that, during the time in which
1995), or “a temporary, non-chronic
                                                     Williams first took leave from PHA in the
impairment of short duration,” Rinehimer
                                                     summer of 1998, Williams suffered from
v. Cemcolift, Inc., 292 F.3d 375, 380 (3d
                                                     depression that required treatment over at
Cir. 2002), it is true, fall short of
                                                     least an indefinite period of time. Dr.
substantially limiting an individual in a
                                                     Finley, PHA’s psychologist, concluded
major life activity. Accordingly, the
                                                     that Williams “require[d] psychological
EEOC has suggested, for example, that
                                                     treatment for depression and stress
broken limbs, sprained joints, concussions,

                                                15
management,” A200, and indicated that his                 Moreover, given in this case the history of
condition was severe enough to prevent                    the disorder, the lack of such assurance,
him from carrying a firearm. Dr. Finley                   and the conclusions of Williams’s treating
did not express an opinion as to the
duration of Williams’s impairment, but
suggested that he might be “further helped
                                                                 not resume active duty,
by psychotropic medications,” although
                                                                 involving his usual and
further evaluation would be necessary to
                                                                 normal work activities,
determine whether or not he could “resume
                                                                 unless he is under the proper
active duty with the continuation of
                                                                 care of me dic a l an d
p r e s c ri b e d t re a t m e n t .”  A 200.
                                                                 psychological personnel.
Reevaluation after a period of three
                                                                 He requires psychological
months would be required to provide a
                                                                 treatment for depression and
“more definite time frame” for his full
                                                                 stress management. He also
return to active duty. A201. Helen
                                                                 requires an evaluation by
Huffington, M.S.S., Williams’s treating
                                                                 m e d ic a l p e rsonn el to
counselor at Delawa re C ounty
                                                                 determine if he may be
Psychological Services, indicated that
                                                                 further helped by
W i l l ia m s s u f f e r e d f r o m “ m a j o r
                                                                 psychotropic medications.
depression,” and further concluded that his
                                                                 Sgt. Williams can resume
condition was “recurrent [and] severe,”
                                                                 working on alternate work
A198, thereby suggesting that Williams’s
                                                                 assignments and should do
mental impairment was severe, would have
                                                                 so for a minimum period of
a long-term impact, and was likely to
                                                                 3 months in order to provide
persist. Williams’s personal psychologist,
                                                                 an initial opportunity for
Dr. Levitt, reached the same conclusion as
                                                                 him to begin receiving
Huffington, diagnosing Williams as
                                                                 benefits f ro m regula r
suffering from recurrent and severe major
                                                                 medicinal               and/or
depression. A519.
                                                                 psychological treatment. He
       While Dr. Finley hoped that                               should be reevaluated after
treatment would improve Williams’s                               this time in order to
condition in the future, there was certainly                     determine whether or not he
no assurance that such would be the case.8                       can resume active duty with
                                                                 the continua tion of
                                                                 p r e s c r i b e d t r e a tm e n t
   8
   As we have noted, Dr. Finley wrote, in                        regiment            for       the
part, as follows:                                                management of his stress
                                                                 and depression.
        It is my professional opinion
        that Sgt. Williams should                         A200 (emphasis added).

                                                     16
clinicians that his major depression was                     “A person is ‘regarded as’ having a
severe and recurrent, a reasonable jury               disability” if the person:
could conclude that Williams’s problem
                                                             (1) Has a physical or mental
was not a temporary one, and would not be
                                                             impairment that does not
precluded from reaching a finding of
                                                             substantially limit major life
actual disability.
                                                             activities but is treated by
       ii. “Regarded As” Disabled                            the covered entity as
                                                             constituting such limitation;
        While Dr. Finley, PHA’s examining
clinician, indicated that Williams was only                  (2) Has a physical or mental
limited in his ability to carry a firearm, the               impairment               that
record is clear that PHA perceived                           substantially limits major
Williams as being unable to have access to                   life activities only as a result
firearms and to be around others carrying                    of the attitudes of others
firearms. As PHA Administrator O’Brien                       toward such impairment; or
has testified,
                                                             (3)Has       [no     such
       [a]t all relevant times, PHA                          impairment] but is treated
       assigned armed po lice                                by a covered entity as
       officers to work in the PHA                           having a substantially
       radio room.          Anyone                           limiting impairment.
       assigned to the radio room
                                                      Taylor v. Pathmark Stores, Inc., 177 F.3d
       would have access to
                                                      180, 188 (3d Cir. 1999) (quoting 29 C.F.R.
       firearms. . . . PHA did not
                                                      § 1630.2(l)). Here, Williams argues that
       assign Sergeant Williams to
                                                      PHA regarded him as having a limitation
       he radio room . . . because. .
                                                      (i.e., the inability to have access to or be
       . Sgt. Williams would have
       access to firearms in the
       radio room.
                                                      Williams’s actual disability, which we will
A202 (emphasis added). Williams argues
                                                      discuss infra with respect to whether
that PHA wrongly perceived him as having
                                                      Williams could have been accommodated.
these additional limitations, and thereby
                                                      If PHA’s perception was, in fact, accurate,
regarded him as being disabled.9
                                                      a jury could still determine that Williams
                                                      was disabled, but these additional
                                                      limitations (i.e., that he not have access to
   9
    In light of Dr. Finley’s conclusion that          firearms or be around others carrying
Williams could be around others carrying              firearms) might prevent him from being a
firearms, there is, of course, a factual issue        qualified individual, in that there may have
to be determined as to whether PHA’s                  been no way to accommodate such an
perception was accurate and reflected                 individual at this employer police station.

                                                 17
around others carrying firearms) far                              temporarily disabled for “90 days,” even if
greater than the actual limitation (i.e., the                     his actual limitation was not temporary. In
inability to carry a firearm) that resulted                       support of that proposition, PHA first
from his mental impairment. 10                                    suggests that Dr. Finley’s reports would
                                                                  require a jury to conclude that PHA
        We determined previously that a
                                                                  regarded Williams as disabled only for 90
trier of fact could find Williams to be
                                                                  days. While PHA heavily relies upon Dr.
actually disabled based on the evidence
                                                                  Finley’s reports as the basis for its view of
suggesting that Williams’s inability to
                                                                  Williams’s impairments, Dr. Finley’s
carry a firearm significantly restricted his
                                                                  reports, as we have noted, indicate that it
ability to perform law enforcement jobs.
                                                                  was not possible to provide “a more
The additional limitations perceived by
                                                                  definite time frame . . . at this time [as to
PHA, of course, only serve to further
                                                                  when Williams could carry a firearm],
restrict the jobs Williams could perform in
                                                                  pending a reevaluation.”         A201.     A
law enforcement. As Williams suggests,
                                                                  reasonable juror could find that Dr.
an inability to have access to or be around
                                                                  Finley’s reports, as relied upon by PHA,
others carrying firearms would prevent
                                                                  establish that PHA viewed Williams as
him from serving in virtually all law
                                                                  requiring ongoing treatment, and that PHA
enforcement positions.       Williams has
                                                                  did not believe that a return to full duty
therefore sufficiently demonstrated that a
                                                                  was imminent.
trier of fact could determine that PHA
regarded him as being substantially limited                               PHA further looks to a memo from
in the major life activity of working                             Assistant Chief of Operations Aaron
because of its perception that he could not                       Hughes to Williams dated October 20,
hold any law enforcement position.                                1998, in which Hughes indicated that
                                                                  “once you [Williams] have completed all
      PHA argues, however, that
                                                                  of your treatment with Dr. Finley,
Williams’s “regarded as” disability claim
                                                                  releasing you to return to full duty, with
must fail because it regarded him as
                                                                  authorization to carry firearms once again,
                                                                  you are to report back to uniform patrol
                                                                  duty.”         A 204 (the “Hughes
    10
       Williams’s position, that he was both                      mem orandum”).             The Hughes
actually disabled and wrongly regarded as                         memorandum required W illiams to
d i s a b l e d , i s “ [n o t ] i n t r i n s i c a l l y        complete “all” of his treatment with Dr.
contradictory, as he could have an                                Finley and receive her authorization to
impairment (whether or not it rose to the                         carry firearms before being allowed to
level of a disability) that could actually be                     return to “patrol duty.” That memorandum
accommodated, despite [his employer’s]                            was written ten days after Dr. Finley
perception that his disability was too                            informed PHA that she had not been asked
severe to accommodate.” Pathmark, 177                             to treat Williams and would not “be
F.3d at 189.

                                                             18
working with [Sergeant] Williams on an                     We thus conclude that there is a
ongoing basis.” A160. Given that PHA                material dispute of fact both as to whether
had been informed by Dr. Finley that no             Williams was actually disabled in the
such treatment with her was planned, it is          summer of 1998 and as to whether he was
difficult to see how a reasonable juror,            regarded by PHA as being disabled.
reading the Hughes memorandum and its
                                                               B. Qualified Status
requirement that Williams receiv e
treatment from Dr. Finley, would have to                   The second element of Williams’s
conclude that PHA was determined to                 prima facie case of discrimination under
allow Williams to return to work in 90              the ADA requires him to show that he is a
days.      Moreover, in light of the                “qualified individual.” See Deane, 142
memorandum’s requirement that Williams              F.3d at 145. As previously noted, a
receive medical clearance to carry firearms         qualified individual is one “who, with or
before returning to PHA, a reasonable               without reasonable accommodation, can
juror could determine that PHA perceived            perform the essential functions of the
Williams’s impairment to be of an                   employment position that such individual
unknown and potentially unlimited                   holds or desires.” 42 U.S.C. § 12111(8).
determination.11                                    “[A] disabled employee may establish a
                                                    prima facie case under the ADA if s/he
                                                    shows that s/he can perform the essential
   11                                               functions of the job with reasonable
     PHA further relies upon an affidavit
                                                    accommodation and that the employer
submitted by PHA Administrator O’Brien
                                                    refused to make such an accommodation.”
indicating that PHA offered Williams a
                                                    Skerski v. Time Warner Cable Co., 257
“leave of absence that would have allowed
                                                    F.3d 273, 284 (3d Cir. 2001).
him to return to work as a police sergeant
within 90 days.” A202. This would                           Under the ADA, a “reasonable
apparently be the basis for PHA’s                   accommodation” includes “reassignment
argument that they perceived Williams as            to a vacant position.” 42 U.S.C. §
able to return to work in 90 days.                  12111(9)(B).     However, the EEOC’s
However, the affidavit conflicts on its face        commentary to its regulations provides that
with the Hughes memorandum, which                   reassignment “should be considered only
indicated that Williams would only be               when accommo dati on w ithin th e
allowed to return to work upon completion           individual’s current position would pose
of treatment w ith the employer’s                   an undue hardship.” EEOC Interpretive
psychologist–treatment that the employer’s          Guidance, 29 C.F.R. Pt. 1630, App. §
psychologist never agreed to perform–and            1630.2(o). Neither party has suggested
upon receiving clearance from the                   that any accommodation within Williams’s
employer’s psychologist to carry firearms.
While a jury might believe O’Brien’s
testimony, the record certainly does not            compel such a conclusion.

                                               19
current position would have been possible                     PHA insists, however, that
in this case.                                         Williams was not qualified to work in the
                                                      radio room because he was not only unable
        Williams first asked to be
                                                      to carry a firearm, but was, in fact, also
reassigned to PHA’s training unit. PHA
                                                      unable to have access to firearms or be
responded to Williams: “the specific
                                                      around others who carried firearms.
position that you are requesting is not open
                                                      Concededly, a radio room assignment
to you due to your on-going treatment with
                                                      would have allowed Williams to have
Dr. Lauren Finley. . . and her
                                                      access to firearms or to be around others
recommendation that you should not carry
                                                      who carried firearms. This argument
a weapon while still under her care for the
                                                      cannot succeed at the summary judgment
next several months.” A204. Williams
                                                      stage, however, because PHA’s own
then responded by requesting a radio room
                                                      doctor’s report supports the view that
assignment. PHA did not directly respond
                                                      Williams’s condition did not preclude him
to this request until litigation.
                                                      from working with people who carried
        It is Williams’s position that with           weapons.        Dr. Finley specifically
the benefit of an accommodation transfer              concluded that Williams “can work around
he would have been able to perform the                other officers who will be wearing their
essential functions of a member of the                weapon.” A201. A reasonable jury could
radio room or the training unit. With                 thus conclude that Williams’s actual
respect to the radio room, both sides agree           limitations left him qualified to do radio
that, absent his inability to carry a firearm,        room work.12
Williams was qualified for that position.
                                                             To the extent Williams relies upon
Indeed, PHA assigned him to that position
                                                      a “regarded as” theory of disability, PHA
prior to receiving Dr. Finley’s report and
                                                      contends that a plaintiff in Williams’s
concluding that he could not be around
                                                      position must show that there were vacant,
others carrying, or have access to,
                                                      funded positions whose essential functions
firearms. Assuming a reasonable jury
concludes that Williams’s actual limitation
consisted of an inability to carry firearms,              12
                                                             Given PHA’s denial of Williams’s
there is nothing in the record to suggest
                                                      request for a transfer to the training unit
that Williams could not function in the
                                                      based solely on Dr. Finley’s report, a
radio room without carrying a firearm. In
                                                      reasonable jury could also conclude that,
any event, PHA has not challenged, for
                                                      absent the inability to carry a weapon,
summ ary judgment pu rposes, that
                                                      Williams was otherwise qualified to serve
Williams could have worked in the radio
                                                      in the training unit. Based on the extent of
room without carrying a firearm, and that
                                                      Williams’s service with the PHA, we
vacant, funded radio room positions were
                                                      believe a reasonable jury could infer that
available.
                                                      his service in the training unit would not
                                                      necessarily require carrying a firearm.

                                                 20
the employee was capable of performing in           employee’s “regarded as” failure to
the eyes of the employer who misperceived           accommodate claim would always fail,
the employee’s limitations.13 Even if a             under PHA’s theory, because the employee
trier of fact concludes that PHA wrongly            would never be able to demonstrate the
perceived Williams’s limitations to be so           existence of any vacant, funded positions
severe as to prevent him from performing            he or she was capable of performing in the
any law enforcement job, the “regarded              eyes of the employer.
as” claim must, in PHA’s view, fail
                                                              Pathmark soundly rejects an
because Williams has been unable to
                                                    argument similar to that here made by
demonstrate the existence of a vacant,
                                                    PHA. There, an employer received a
funded position at PHA whose functions
                                                    medical report indicating that an employee
he was capable of performing in light of its
                                                    would have a significant “temporary”
misperception. Williams could not have
                                                    i m p a i r m e nt, and th e e m pl oye r
been a “qualified individual” under the
                                                    misperceived the report, indicating to the
ADA, PHA suggests, because there were
                                                    employee that it had “been advised your
no jobs at this employer police station he
                                                    restrictions are permanent,” id. at 184
could have performed given its
                                                    (emphasis added). Viewing the employee
misperception that he could not be around
                                                    as suffering from severe, permanent
others carrying, or have access to,
                                                    limitations as a result of what was in fact a
firearms. We reject this suggestion.
                                                    temporary impairment, the employer
       “[O]ne of the points of ‘regarded            supermarket concluded that the worker
as’ protection is that employers cannot             “was unable to perform any Pathmark job,
misinterpret information abou t an                  even with accommodation,” id. at 188, and
employee’s limitations to conclude that the         fired the worker.
employee is incapable of performing a
                                                               We agreed with the employee “that,
wide range [or class] of jobs.” Pathmark,
                                                    in general, an employer’s perception that
177 F.3d at 190. PHA’s argument, if
                                                    an employee cannot perform a wide range
accepted, would make “regarded as”
                                                    [or class] of jobs suffices to make out a
protection meaningless. An employer
                                                    ‘regarded as’ claim.” Id. at 188. We held
could simply regard an employee as
                                                    that, with respect to the employee’s
incapable of performing any work, and an
                                                    “regarded as” claim, the employer would
                                                    be “liable if it wrongly regarded [the
   13                                               employee] as so disabled that he could not
     We assume for present purposes that
                                                    work and therefore denied him a job.” Id.
a jury determines that Williams’s actual
                                                    at 190. Anticipating PHA’s challenge
limitation was an inability to carry
                                                    here, we held that “[i]f an employer
firearms, and that PHA misperceived
                                                    believes that a perceived disability
Williams’s limitations when it concluded
                                                    i n h e r e n t l y p r e c l u d es s u c c e s s fu l
that he was unable to have access to, or be
                                                    performance of the essential functions of a
around others carrying, firearms.

                                               21
job, with or without accommodation, the              suggestion, a “regarded as” disabled
employer must be correct about the                   employee need not demonstrate during
affected employee’s ability to perform the           litigation the availability of a position he
job in order to avoid liability.” Id. at             or she was capable of performing in the
193. 14    Thus, contrary to PHA’s                   eyes of the misperceiving employer.
                                                            To meet his litigation burden with
                                                     respect to both his “actual” and “regarded
    14
       We also noted that “the law in this           as” disability claims, Williams need only
circuit is that a ‘regarded as’ plaintiff can        show
make out a case [even] if the employer is
                                                            (1) that there was a vacant,
innocently wrong about the extent of his or
                                                            funded position; (2) that the
her impairment,” id. at 191, meaning that
                                                            position was at or below the
there is no general “good faith” defense
                                                            level of the plaintiff’s
available to PHA to the extent it
                                                            former job; and (3) that the
misperceived Williams as having an
                                                            plaintiff was qualified to
impairment that substantially limits a
                                                            perform the essential duties
major life activity based upon myths, fears,
                                                            of this job with reasonable
or stereotypes associated with disabilities.
                                                            accommodation.        If the
        There is, however, a limited defense
                                                            employee meets his burden,
available to employers who engage in an
                                                            t h e e m p l o ye r m u st
“individualized determination of the
                                                            demonstrate             that
employee’s actual condition” and develop
a misperception “based on the employee’s
unreasonable actions or omissions.” Id. at
193. Assuming a jury determines that                 sufficient to subject it to liability under the
PHA misperceived Williams as being                   ADA,” the “employer’s state of mind
unable to have access to, or be around               [remains] relevant to the appropriate
others carrying, firearms, the existence of          remedies.”          Id. at 182-83 (citation
such a defense in this case would also be a          omitted); see 42 U.S.C. 1981a(a)(3)
question for a jury, given that PHA                  (where “discriminatory practice involves
retained such a misperception despite                t h e p r o v i s io n o f a r e a s o na b l e
clarification from Dr. Finley that Williams          accommodation,” “damages may not be
could be around others carrying firearms             awarded . . . where the covered entity
and a communication from Williams                    demonstrates good faith efforts, in
requesting a radio room assignment in                consultation with [employee], to identify
light of his having been cleared for such an         and make a reasonable accommodation”);
assignment by Dr. Finley.                            see also Deane, 142 F.3d at 148 n.12
        Of course, while “an employer’s              (“regarded as” plaintiff “might be entitled
innocent mistake (which may be a function            to injunctive relief against future
of ‘goofs’ or miscommunications) is                  discrimination”).

                                                22
              t r a n s f e r ri n g t h e              C. Adverse Employment Action
              e m p l o ye e w o u l d                  Resulting From Discrimination
              cause unreasonable
                                                            As we have noted, a failure to make
              hardship.
                                                    a reasonable accommodation for a disabled
Donahue v. Consol. Rail Corp., 224 F.3d             and qualified employee constitutes
226, 230 (3d Cir. 2000). Williams alleges,          discrimination under the ADA. Taylor,
and the record supports a finding, that a           184 F.3d at 306. Williams claims that
radio room assignment was available, that           P H A f a i le d t o m a k e su c h a n
the position was at or below his level, and         accommodation when it refused his
that he was qualified to perform the                requests for assignment to the radio room
essential duties of that job with no further        and the training unit. In addition to
accommodation.        Thus, Williams has            insisting that Williams was not disabled,
established that there is a material dispute        PHA seems to suggest that it offered to
of fact as to whether he was a qualified            reasonably accommodate Williams by
individual under the ADA.15                         offering him an unpaid leave of absence
                                                    and future employment should he recover.
                                                    “[T]he question of whether a proposed
     15
      We are, of course, aware that “an             accommodation is reasonable is a question
employer is not required to provide a               of fact.” Buskirk, 307 F.3d at 170; see
reasonable accommodation if it . . . would          also Skerski, 257 F.3d at 286; cf. Walton v.
pose a ‘direct threat’ to the safety of the         Mental Health Ass’n of Southeastern Pa.,
employee or others, 29 C.F.R. §                     168 F.3d 661, 671 (3d Cir. 1999) (“unpaid
1630.15(b)(2), see Chevron U.S.A. Inc. v.           leave supplementing regular sick and
Echazabal, 536 U.S. 73, [78-79], 122 S.Ct.          personal days might, under [some] facts,
2045, 2049, 153 L.Ed.2d 82 (2002).”                 represent a reasonable accommodation”).
Buskirk v. Apollo Metals, 307 F.3d 160,             If a trier of fact concludes that Williams
168 (3d Cir. 2002); see also 29 C.F.R. §            was disabled, however, it could also find
1630.2(r) (defining “direct threat”). PHA           that the failure to continue Williams’ paid
has not argued, for summary judgment                employment as a member of the radio or
purposes, that Williams was not entitled to         training unit was a failure to reasonably
reasonable accommodation under the
“direct threat” exemption, and has instead
focused its efforts on whether Williams             faced with an employee who truly poses a
was disabled and/or a qualified individual.         “direct threat” to workplace safety. Here,
       Having concluded that there is a             of course, there is a triable issue of fact as
material dispute of fact as to whether              to whether Williams posed such a “direct
Williams was disabled and a qualified               threat,” given that PHA’s refusal to allow
individual, we mention the “direct threat”          Williams to work around others with
exemption here only to make clear that the          firearms was contrary to the conclusion of
ADA is not unsympathetic to employers               its own clinician.

                                               23
accommodate and accordingly constituted                      29 C.F.R. § 1630.2(o)(3). Further,
an adverse employment action under the
                                                                    The EEOC’s interpretive
ADA.
                                                                    guidelines establish the
           Additionally, we have repeatedly                         circumstances that trigger
held that an employer has a duty under the                          the employer’s duty to
ADA to engage in an “interactive process”                           engage in this interactive
of communication with an employee                                   process: “Once a qualified
requesting an accommodation so that the                             individual with a disability
employer will be able to ascertain whether                          has requested provision of a
there is in fact a disability and, if so, the                       reasonable accommodation,
extent thereof, and thereafter be able to                           the employer must make a
a s s i s t i n i d e n ti f yi n g r e a s o n ab le               reaso nable effort to
accommodations where appropriate. “The                              determine the appropriate
ADA itself does not refer to the interactive                        acco mm odatio n. The
process,” but does require employers to                             a ppr o priate rea s o n a b le
“make reasonable accommodations” under                              accommodation is best
some circumstances for qualifie d                                   de te r mine d thro ugh a
individuals. Shapiro v. Township of                                 flexible, interactive process
Lakewood, 292 F.3d 356, 359 (3d Cir.                                that involves both the
2002) (internal quotation marks and                                 employer         and      the
alterations omitted). With respect to what                          [employee] with a
consists of a “reasonable accommodation,”                           disability.”
EEOC regulations indicate that,
                                                             Jones v. United Parcel Serv., 214 F.3d
        [t]o        determ ine         the                   402, 407 (3d Cir. 2000) (quoting 29 C.F.R.
        a p propriate r e a s o nable                        Pt. 1630, App. § 1630.9).
        accommodation it may be
                                                                    Accordingly, we have held that both
        necessary for the covered
                                                             employer and employee “have a duty to
        entity to initiate an informal,
                                                             assist in the search for appropriate
        interactive process with the
                                                             reasonable accommodation and to act in
        qualified individual with a
                                                             good faith.” Mengine, 114 F.3d at 420
        disability in need of the
                                                             (discussing the duty in the context of the
        accommodation.               This
                                                             Rehabilitation Act). An employee can
        process should identify the
                                                             demonstrate that an employer breached its
        precise limitations resulting
                                                             duty to provide re asonable
        from the disability and
                                                             accommodations because it failed to
        p o t e n t ia l r e a s o n a b l e
                                                             engage in good faith in the interactive
        accommodations that could
                                                             process by showing that:
        overcome those limitations.
                                                                    1) the employer knew about

                                                        24
              t h e emp lo y e e’s                   conclude that PHA knew about his
              disability; 2) the                     disa bility, that he reque sted
              employee requested                     accommodation, that PHA’s quite limited
              accommodations or                      response to his training unit assignment
              assistance for his or                  request was not made in good faith, that
              her disability; 3) the                 PHA’s offer of extended unpaid leave was
              employer did not                       not a good faith response to his request for
              make a good faith                      a radio room assignment, and that
              effort to assist the                   Williams could have been reasonably
              employee in seeking                    accommodated with a radio room or
              a c c o m m o d a t i o n s;           training unit assignment but for PHA’s
              and 4) the employee                    lack of good faith. Thus, a material
              could have been                        dispute of fact exists as to whether PHA
              r e a s o n a b l y                    failed to engage in good faith in the
              accommodated but                       interactive process, thereby failing to
              for the employer’s                     reasonably accommodate Williams.16
              lack of good faith.
Taylor, 184 F.3d at 319-20. However, in
                                                       16
addressing an employee’s claim that an                    Our admonition en banc in Deane that
employer failed to engage in the                     employers take seriously the interactive
interactive process, we have also made               process rings true in this case. There, we
clear that a “plaintiff in a disability              noted that a single phone call between an
discrimination case who claims that the              employer and an employee “hardly
defendant engaged in discrimination by               satisfies our standard that the employer
f a i l in g t o m a k e a r e a s o n ab l e        make reasonable efforts to assist the
accommodation cannot recover without                 employee, to communicate with him in
showing that a reasonable accommodation              good faith, and to not impede his
was possible.” Donahue, 224 F.3d at 234.             investigation for employment.” Deane,
Thus, “‘because employers have a duty to             142 F.3d at 149. PHA’s initial response to
help the disabled employee devise                    Williams’s request for a training unit
accommodations, an employer who acts in              assignment did little to meet its obligation
bad faith in the interactive process will be         to interact in good faith. Compare A204
liable if the jury can reasonably conclude           (“it is the position of this police
that the employee would have been able to            department that the specific position that
perform the job with accommodations.’”               you are requesting is not open to you due
Id. at 234-35 (quoting Taylor, 184 F.3d at           to your on-going treatment with Dr.
317) (emphasis in original).                         Lauren Finley. . . and her recommendation
                                                     that you should not carry a weapon while
     Under Taylor, Williams has
                                                     still under her care for the next several
demonstrated that a fact-finder could
                                                     months.”) with Taylor, 184 F.3d at 317

                                                25
 V. “Regarded As” Employees and the                 that is one of first impression in this
 Right to Reasonable Accommodation                  Circuit and has occasioned a circuit split
                                                    elsewhere. We assume for purposes of our
        To the extent Williams relies upon
                                                    analysis that the trier of fact will find
a claim that PHA perceived his impairment
                                                    erroneous PHA’s perception that
to be greater than it was, PHA advances an
                                                    Williams’s depression prevented him from
additional argument. It insists that a
                                                    being around others carrying, or having
“regarded as” disabled employee is not
                                                    access to, guns.
entitled to accommodation under the ADA
and that, accordingly, Williams suffered                    Based on the statutory text and the
no adverse employment action other than             legislative history of the ADA, the First
his termination.17 This presents an issue           Circuit Court of Appeals has held that a
                                                    “regarded as” disabled employee is
                                                    entitled to be accommodated. Katz v. City
(“Employers can show their good faith in            Metal Co., 87 F.3d 26, 33 (1st Cir. 1996).
a number of ways, such as taking steps like         The better-reasoned district court decisions
the following: meet with the employee               reach the same result. See Jacques v.
who requests an accommodation, request              DiMarzio, Inc., 200 F. Supp. 2d 151, 163-
information about the condition and what            71 (E.D.N.Y. 2002); Jewell v. Reid’s
limitations the employee has, ask the               Confectionary Co., 172 F. Supp. 2d 212,
employee what he or she specifically                218-19 (D. Me. 2001); see also Lorinz v.
wants, show some sign of having                     Turner Const. Co., 2004 WL 1196699, *8
considered employee’s request, and offer            n.7 (E.D.N.Y. May 25, 2004) (endorsing
and discuss available alternatives when the         Jacques); Miller v. Heritage Prod., Inc.,
request is too burdensome”).                        2004 WL 1087370, *10 (S.D. Ind. Apr. 21,
         PHA’s subsequent failure to                2004) (same). We also find Judge Block’s
respond to Williams’s request for a radio
room assignment further subjected it to the
risk that it overlooked an opportunity to           nonetheless be required to remand this
accommodate a statutorily disabled                  matter for further proceedings based upon
employee. See Taylor, 184 F.3d at 317               the existence of a material dispute of fact
(“[A]n employer who fails to engage in the          with respect to Williams’s actual
interactive process runs a serious risk that        disability. If a jury finds Williams to have
it will erroneously overlook an opportunity         been actually disabled because his
to accommodate a statutorily disabled               depression deprived him of the ability to
employee, and thereby violate the ADA.”).           carry a firearm, as we discuss supra note
                                                    14, liability could be imposed even though
   17
      Even if we were to agree with PHA             P H A denied his requests for
that “regarded as” disabled individuals are         accommodation based on its misperception
not entitled to reasonable accommodations           regarding the extent of Williams’s
under the ADA, we note that we would                impairment.

                                               26
analysis in Jacques particularly persuasive,        917. In Kaplan, the Court of Appeals for
and will largely track his approach below.          the Ninth Circuit, despite finding that “on
                                                    its face, the ADA’s definition of ‘qualified
        As PHA stresses, however, there
                                                    individual with a disability’ does not
are two Courts of Appeals who have
                                                    differentiate between the three alternative
reasoned to a contrary conclusion, see
                                                    prongs of the ‘disability definition,’” 323
Kaplan v. City of North Las Vegas, 323
                                                    F.3d at 1232, adopted the rationale of
F.3d 1226, 1231-33 (9th Cir. 2003); Weber
                                                    Weber, again suggesting that a “formalistic
v. Strippit, Inc., 186 F.3d 907, 916-17 (8th
                                                    reading” of the ADA would lead to
Cir. 1999), and two have so concluded
                                                    “bizarre results.” Id. Specifically, Kaplan
without analysis, see Workman v. Frito-
                                                    endorsed the “windfall theory” suggested
Lay, Inc., 165 F.3d 460, 467 (6th Cir.
                                                    in a dictum by our Court: “it seems odd to
1999); Newberry v. East Texas State
                                                    give an impaired but not disabled person a
University, 161 F.3d 276, 280 (5th Cir.
                                                    windfall because of her employer’s
1998). 18 We find ourselves unpersuaded
                                                    erroneous perception of disability, when
by the reasoning of Weber and Kaplan.
                                                    other impaired but not disabled people are
       Weber acknowledged that the                  not e ntitle d to accommodati o n .”
statutory text did not distinguish between          Pathmark, 177 F.3d at 196 (citing Deane,
actually and “regarded as” disabled                 142 F.3d at 149 n.12).
employees. It declined to apply the statute
                                                             While we do not rule out the
as written, however, because doing so, in
                                                    possibility that there may be situations in
its view, “would lead to bizarre results.”
                                                    w h i c h a p p l yi n g t h e re a s o n a b le
186 F.3d at 916. In so concluding, it
                                                    accommodation requirement in favor of a
declined to attribute to Congress an intent
                                                    “regarded as” disabled employee would
“to create a disparity among impaired but
                                                    produce “bizarre results,” we perceive no
non-disabled employees, denying most the
                                                    basis for an across-the-board refusal to
right to reasonable accommodations but
                                                    apply the ADA in accordance with the
granting to others, because of the
                                                    plain meaning of its text. Here, and in
employers’ misperceptions, a right to
                                                    what seem to us to be at least the vast
reasonable accommodations. . . .” Id. at
                                                    majority of cases, a literal reading of the
                                                    Act will not produce such results.
                                                    Accordingly, we will remain faithful to its
    18
      Three Circuit Courts, including our           directive in this case.
own, have thus far considered but declined
                                                       A. The Plain Language of the ADA
to address the issue. See Cameron v.
Cmty. Aid For Retarded Children, Inc.,                     As we have heretofore explained,
335 F.3d 60, 64 (2d Cir. 2003); Mack v.             the ADA makes it unlawful for a covered
Great Dane Trailers, 308 F.3d 776, 783              employer to “discriminate against a
n.2 (7th Cir. 2002); Buskirk, 307 F.3d at           qualified individual with a disability
168-69 & n.2.

                                               27
because of the disability,” 42 U.S.C. §                   could     nevertheless
12112(a), and “discrimination” in this                    substantially limit that
context includes, with an exception not                   person’s ability to work as a
here relevant, “not making reasonable                     result of the negative
accommodation to the . . . mental                         reactions of others to the
limitations of an otherwise qualified                     impairment.”
individual with a disability,” 42 U.S.C. §
                                                                  The Court concluded
12112(b)(5)(A).       The definition of
                                                          that, by including this test,
“disability” includes “being regarded as
                                                          “Congress acknowledged
having . . . an impairment” that
                                                          accumulated myths and
substantially limits a major life activity.
                                                          fears about disability and
42 U.S.C. § 12102(2)(C) (emphasis
                                                          diseases are as handicapping
added). Thus, as all would agree, the
                                                          a s a r e t h e p h ys i c al
statutory text of the ADA does not in any
                                                          limitations that flow from
way “distinguish between [actually]
                                                          actual impairment.”
disabled and ‘regarded as’ individuals in
requiring accommodation.” Pathmark,                                  Thus, a person who
177 F.3d at 196.                                          [suffers a n adve rse
                                                          employment action] because
       B. The Legislative History
                                                          of the myths, fears and
       Moreover, the legislative history of               stereotypes associated with
the ADA confirms that Congress meant                      d i s a b il i t ie s w o u l d b e
what its text says. As Congress explained:                covered under [the
                                                          “regarded a s” prong],
               [The objective of the
                                                          whether or no t the
       “regarded as” provision of
                                                          employer’s perception was
       the ADA] was articulated by
                                                          shared by others in the field
       the Supreme Court in
                                                          and whether or not the
       School Board of Nassau
                                                          person’s physical or mental
       County v. Arline. The Court
                                                          c o n d i t io n w o u l d b e
       noted that although an
                                                          considered a disability under
       individual may have an
                                                          the first or second part of
       impairment that does not in
                                                          the definition.
       fact substantially limit a
       major life activity, the                    H.R. Rep. No. 101-485 (III), 1990
       reaction of others may prove                U.S .C.C.A.N. 445, 453 (footnotes
       just as disabling. “Such an                 omitted). Thus, the ADA was written to
       impairment mig ht n ot                      protect one who is “disabled” by virtue of
       diminish a person’s physical                being “regarded as” disabled in the same
       or mental capabilities, but                 way as one who is “disabled” by virtue of


                                              28
being “actually disabled,” because being             no actual incapacity at all.’” Arline, 480
perceived as disabled “may prove just as             U.S. at 279 (quoting Southeastern Cmty.
disabling.” This case demonstrates the               Coll. v. Davis, 442 U.S. 397, 405-406 n.6
wisdom of that conclusion, in that but for           (1979)) (alterations in original). The Court
PHA’s erroneous perception that Williams             held that the teacher plaintiff, who had a
was unable to be around firearms because             contagious but not substantially limiting
of his mental impairment, Williams would             form of tuberculosis, fell into this
have been eligible for a radio room                  category. It found that employers had “an
assignment.                                          affirmative obligation [u nder the
                                                     Rehabilitation Act] to make a reasonable
  C. The Supreme Court’s Decision in
                                                     accommodation” for such an employee,
               Arline
                                                     Arline, 480 U.S. at 289 n.19, and
        In addition to the statutory text and        remanded so that the District Court could
legislative history, the Supreme Court’s             determine “whether the School Board
decision in School Board of Nassau                   could have reasonably accommodated
County v. Arline, 480 U.S. 273 (1987),               her,” id. at 288-89.
also requires that “regarded as” employees
                                                            Given that the “regarded as”
be entitled to reasonable accommodations.
                                                     sections of both Acts play a virtually
Arline involved a claim based on the
                                                     identical role in the statutory scheme, and
Rehabilitation Act. The Court pointed out
                                                     the well-established rule that the ADA
that the Act’s definition of “handicapped
                                                     must be read “to grant at least as much
individual” had been amended to read as
                                                     protection as provided by . . . the
follows:
                                                     Rehabilitation Act,” Bragdon v. Abbott,
       [A]ny person who (i) has a                    524 U.S. 624, 632 (1998), the conclusion
       ph ysical or men tal                          seems inescapable that “regarded as”
       impairment           which                    employees under the ADA are entitled to
       substantially limits one or                   reasonable accommodation in the same
       more of such person’s major                   way as are those who are actually disabled.
       life activities, (ii) has a                   Of course, additionally, Congress
       record of such an                             specifically endorsed the Arline approach
       impairment, or (iii) is                       in crafting the “regarded as” prong of the
       regarded as having such an                    ADA’s definition of “disability.” Neither
       impairment.                                   the Eighth Circuit’s decision in Weber nor
                                                     the Ninth Circuit’s decision in Kaplan
Arline, 480 U.S. at 279. The Court
                                                     address Arline.
explained that this expansion of the
definition was intended “to preclude                      D. The “Windfall” Proposition
discrimination against ‘[a] person who has
                                                          PHA, arguing the windfall theory to
a record of, or is regarded as having, an
                                                     our Court, suggests that Williams, by
impairment [but who] may at present have

                                                29
being “regarded as” disabled by PHA,
receives a “windfall” accommodation
compared to a similarly situated employee
                                                    that the employee did not have or
who had not been “regarded as” disabled
                                                    limitations greater than the employee’s
and would not be entitled under the ADA
                                                    actual limitations, a simple reasonable
to any accommodation. The record in this
                                                    accommodation can be devised to allow
case demonstrates that, absent PHA’s
                                                    the employee to continue working even
erroneous perception that Williams could
                                                    given the employer’s misperception. In
not be around firearms because of his
                                                    such cases, it may be that the employer and
mental impairment, a radio room
                                                    employee never reach a meeting of the
assignment would have been made
                                                    minds, regardless of who was at fault for
available to him and others similarly
                                                    failing to do so, as to the employee’s
situated. PHA refused to provide that
                                                    actual limitations.      Nonetheless, the
assignment solely based upon its erroneous
                                                    employee can still be reasonably
perception that W illiams’s mental
                                                    accommodated such that he or she can
impairment prevented him not only from
                                                    perform the essential functions of the
carrying a gun, but being around others
                                                    position even in light of the employer’s
with, or having access to, guns –
                                                    misperception. For example, an employer
perceptions specifically contradicted by
                                                    supermarket requires all of its cashiers to
PHA’s own psychologist.            While a
                                                    stand. One cashier has a back problem
similarly situated employee who was not
                                                    that causes discomfort but does not
perceived to have this additional limitation
                                                    amount to an actual disability. The
would have been allowed a radio room
                                                    employer misperceives this back problem
assignment, Williams was specifically
                                                    as one that prevents the employee from
denied such an assignment because of the
                                                    standing for more than an hour, and fires
erroneous perception of his disability. The
                                                    the employee because she cannot stand.
employee whose limitations are perceived
                                                    Even if the supermarket and cashier never
accurately gets to work, while Williams is
                                                    reach a meeting of the minds as to the true
sent home unpaid. This is precisely the
                                                    extent of the cashier’s limitations, the
type of discrimination the “regarded as”
                                                    supermarket might, assuming its erroneous
prong literally protects from, as confirmed
                                                    perception amounted to a substantial
by the Supreme Court’s decision in Arline
                                                    limitation of a major life activity, be
and the legislative history of the ADA.
                                                    required to reasonably accommodate such
Accordingly, Williams, to the extent PHA
                                                    a “regarded as” disabled employee by, for
regarded him as disabled, was entitled to
                                                    example, providing a stool.
reasonable accommodation.19
                                                            In our case, it is true that PHA
                                                    perceived Williams’s limitations to be so
                                                    extensive that no simple solution, such as
     19
      In many cases where an employer               a stool, would have allowed Williams to
regards an employee as having limitations           keep working while their misperception

                                               30
             VI. Conclusion                         summary judgment. 20
       For the foregoing reasons, we will
reverse and remand the District Court’s
                                                         20
grant of summary judgment in favor of                      Williams also appeals the District
PHA with respect to Williams’s ADA and              Court’s denial of partial summary
PHRA discrimination claims. We will                 judgment in his favor with respect to
affirm the District Court’s summary                 whether he is disabled, whether PHA
judgment determination with respect to              breached its duty to engage in the
Williams’s retaliation claims and with              interactive process, and whether PHA
respect to Williams’s cross-motion for              failed to provide Williams with a
                                                    reasonable accommodation.          Williams
                                                    argues, inter alia, that PHA “admitted” he
                                                    was disabled within the meaning of the
persisted. Thus, it was critical that PHA           ADA by offering him the opportunity to
engage in good faith in the interactive             take an unpaid leave of absence, thereby
process and determine the actual extent of          “accommodating” him.
Williams’s limitations before simply                       We agree with the Sixth and Ninth
deeming him unable to work, contrary to             Circuits, however, that an offer of
the opinion of their own psychologist.              accommodation does not, by itself,
Instead, as we have indicated, PHA’s                establish that an employer “regarded” an
response (or lack thereof) to Williams’s            employee as disabled. See Thornton v.
disability has created a material dispute of        McClatchy Newspapers, Inc., 261 F.3d
fact as to whether it failed to engage in           789, 798 (9th Cir. 2001) (“[W]hen an
good faith in the interactive process.              employer takes steps to accommodate an
Assuming a jury determines that PHA’s               employee’s restrictions, it is not thereby
perception was inaccurate and that it               conceding that the employee is disabled
regarded Williams as disabled, it is PHA’s          under the ADA or that it regards the
insistence on this erroneous perception and         employee as disabled. A contrary rule
failure to discuss with Williams the true           would discourage the amicable resolution
extent of his actual limitations that, as we        of numerous employment disputes and
have explained, potentially amounts to a            needlessly force parties into expensive and
failure to engage in the interactive process        time-consuming litigation.”), clarified in
and, thereby, a failure to reasonably               other respects, 292 F.3d 1045 (9th Cir.
accommodate. Accordingly, even where                2002); Plant v. Morton Int’l, Inc., 212 F.3d
an employer mistakenly regards an                   929, 938 (6th Cir. 2000) (“The intent
employee as so disabled that the employee           behind this [“regarded as”] provision,
cannot work at all, the employer still must         according to the EEOC, is to reach those
accommodate a “regarded as” employee by             cases in which ‘myths, fears and
seeking to determine, in good faith, the            stereotypes’ affect the employer’s
extent of the employee’s actual limitations.        treatment of an individual. [An employee]

                                               31
cannot show that this provision applies to
him merely by pointing to that portion of
the record in which his [employer]
admitted that he was aware of [the
employee’s] medical restrictions and
modified [the employee’s] responsibilities
based on them.”).
        Williams further argues that there is
no material dispute of fact with respect to
all of the preceding issues. However, as
we have indicated, there are factual
determinations to be made with respect to
each of these issues.

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