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


2-23-1999

Walton v. Mental Health Assn
Precedential or Non-Precedential:

Docket 97-2000




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Filed February 23, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-2000

SANDRA J. WALTON,

       Appellant

v.

MENTAL HEALTH ASSOCIATION OF SOUTHEASTERN
PENNSYLVANIA

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. No. 96-cv-05682)
District Judge: Honorable Marjorie O. Rendell

ARGUED OCTOBER 7, 1998

BEFORE: Becker, Chief Judge, Nygaard, and
Noonan,* Circuit Judges.

(Filed February 23, 1999)

       Ronald V. Cole (Argued)
       Suite 2330
       1601 Market Street
       Philadelphia, PA 19103
        Attorney for Appellant



_________________________________________________________________

*The Honorable John T. Noonan, Jr., Circuit Judge of the United States
Court of Appeals for the Ninth Circuit, sitting by designation.
       Nancy C. Ryan (Argued)
       Stouffer & Ryan
       1515 Market Street
       Suite 601
       Philadelphia, PA 19102
        Attorney for Appellee

OPINION OF THE COURT

NYGAARD, Circuit Judge,

Appellant, Sandra Walton, was fired by the Mental Health
Association of Southeastern Pennsylvania ("MHASP") and
sued under the Americans with Disabilities Act of 1990
("ADA"), 42 U.S.C. S 12101 et seq. (1994), claiming
harassment, disparate treatment, and failure to
accommodate. The District Court granted summary
judgment for MHASP on these claims and denied Walton's
motion to amend the complaint to add a discrimination
claim based on her obesity as a perceived disability. Walton
now challenges these decisions. We will affirm.

I.

The facts are generally uncontested and are accurately
set forth in the District Court's Memorandum. See Walton
v. Mental Health Assoc. of Southeastern Pa., No. CIV.A.96-
5682, 1997 WL 717053 (E.D. Pa. Nov. 17, 1997). We will
summarize.

Walton worked for MHASP, an advocacy organization for
people with mental illness, from January 1990 until she
was terminated on January 6, 1994. She was the Director
of Advocacy Consumer Training for New Opportunities
("ACT NOW"), a program within MHASP that provided
employment training and job placement for mental health
services consumers. As Director, Walton was responsible
for managing the program and supervising its staff. In
1992, Walton was assigned a new supervisor, Carmen
Meek. The relationship between the two was not good.

Like approximately eighty percent of MHASP's employees,
Walton is a mental health services consumer. Specifically,

                                2
she suffers from depression. As a result, she was
hospitalized six times between March 1990 and December
1993. Because of her illness, Walton was absent twenty-one
days in 1990, forty days in 1991, fifty days in 1992, and
fourteen and a half days in 1993 before taking leave on
October 26, 1993. On that date, Walton was hospitalized
for her illness, and she did not return to work before she
was terminated in January 1994. MHASP policy provides
eighteen days of sick leave per year.

For over a year before Walton was terminated, the results
of the ACT NOW program -- measured by actual job
placement -- had declined significantly. ACT NOW was
funded through grants from the Office of Vocational
Rehabilitation and the City of Philadelphia. The drop in job
placements led MHASP executives to fear for the continued
sponsorship and existence of the program.

Upon being hospitalized in October 1993, Walton
requested a leave of absence without pay. MHASP's Human
Resources Manager granted her request in a letter in which
he stated: "In the near future would you please let me know
the expected duration of your leave. It is our policy that a
leave without pay should not exceed 6 months." Walton
wrote MHASP a letter indicating that her doctor did not
want her to return to work until November 22 and that she
intended to be back on that date. She did not return on
that date. On December 30, Walton's doctor wrote MHASP
to inform them that Walton had regressed and that she
should not return to work for several weeks. On January 4,
1994, Walton notified MHASP that she would report to
work on January 10. On January 6, 1994, Walton was
terminated. The above facts are undisputed as are all
others material to the District Court's summary judgment
ruling.

Walton filed a discrimination complaint with the
Pennsylvania Human Relations Commission which, in turn,
lodged it with the Equal Employment Opportunity
Commission. The Human Relations Commission notified
Walton that it had found "No Cause" in its investigation of
her complaint, and she requested a Right-to-Sue Notice
from the EEOC. Walton then sued MHASP.

                               3
II.

Walton's first claim is that the District Court erred by
denying her petition to amend the complaint to add a claim
of discrimination based on the perceived disability of
obesity. We review the Court's decision for abuse of
discretion. See Berger v. Edgewater Steel Co., 911 F.2d
911, 916 (3d Cir. 1990).

When a complaint is not amended within the time that
amendments are allowed as a matter of course, a party may
amend its complaint "by leave of court or by written
consent of the adverse party; and leave shall be freely given
when justice so requires." Fed. R. Civ. P. 15(a).
Nevertheless, a trial court may consider whether the
amendment would be futile. See F.D.I.C. v. Bathgate, 27
F.3d 850, 874 (3d Cir. 1994). Here, the District Court held
that Walton's proposed new claim failed to state a claim
upon which relief could be granted. See Walton, 1997 WL
717053, at *15.

The ADA defines disability as "A) a physical or mental
impairment that substantially limits one or more of the
major life activities . . . ; B) a record of such an impairment;
or C) being regarded as having such an impairment." 42
U.S.C. S 12102(2). Walton argues that MHASP perceived her
as disabled because she is obese, and that this claim,
therefore, falls under the third prong of the disability
definition.

We have not recognized a cause of action against an
employer who discriminates against an employee because it
perceives the employee as disabled by obesity. Nor need we
do so now because Walton has not claimed that MHASP
discriminated against her because it perceived her as
disabled by some impairment that substantially limits one of
her major life activities.

Although the ADA does not define "major life activities,"
see Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996),
an individual is substantially limited in a major life activity
when she is "[u]nable to perform a major life activity that
the average person in the general population can perform"
or is "[s]ignificantly restricted as to the condition, manner
or duration under which [she] can perform a particular

                                4
major life activity as compared to the condition, manner, or
duration under which the average person in the general
population can perform that same major life activity." 29
C.F.R. S 1630.2(j).

Major life activities include "functions such as caring for
oneself, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working." Id. S 1630.2(i).
Walton asserts that MHASP did not release a promotional
video in which she appeared because she was too obese.
She apparently argues that, if MHASP refused to publish
the video for this reason, it must have perceived her as
substantially limited in her ability to work because
appearing in the video was a part of her job. However,
"[w]ith respect to the major life activity of working[, t]he
term substantially limits means significantly restricted in
the ability to perform either a class of jobs or a broad range
of jobs in various classes as compared to the average
person having comparable training, skills and abilities." Id.
S 1630.2(j)(3)(i). Furthermore, "[t]he inability to perform a
single, particular job does not constitute a substantial
limitation in the major life activity of working." Id.

Even if MHASP did cancel the video because of Walton's
appearance (a fact MHASP disputes), her claim fails. By
asserting that MHASP prevented her from performing a
single minor aspect of her job, Walton simply has not
claimed that MHASP perceived her as substantially limited
in the major life activity of working under this standard.
Nor is there any indication that MHASP perceived her
obesity as limiting her other major life activities.

Finally, Walton argues that the District Court first asked
her to amend the complaint and then ignored the petition
to amend once filed. See Appellant's Brief at 26-27. This is
incorrect. The District Court did refer to Walton's delay in
petitioning to amend. It did not, however, ignore the
petition. Nor did the Court deny the petition because
Walton delayed. Rather, the District Court addressed
Walton's attempted amendment in the order granting
summary judgment. It denied the petition because Walton
failed therein to state a claim upon which relief could be
granted. Walton was not prejudiced by the Court's decision

                                5
to deny the petition to amend,1 and the Court did not abuse
its discretion.

III.

Walton also appeals the District Court's conclusion that
she did not produce sufficient evidence of an objectively
hostile work environment to make out a prima facie case of
harassment. The ADA states that "[n]o covered entity shall
discriminate against a qualified individual with a disability
because of the disability of such individual in regard to . . .
[the] terms, conditions, and privileges of employment." 42
U.S.C. S 12112(a). We have not previously determined
whether the ADA creates a cause of action for harassment
under this section. The District Court proceeded on the
assumption that a claim for a hostile workplace -- i.e.,
harassment -- could be stated under the ADA, see Walton,
1997 WL 717053, at *12, and the parties on appeal have
followed suit.

The Supreme Court has held that language in Title VII
that is almost identical to the above language in the ADA
creates a cause of action for a hostile work environment.
See Patterson v. McLean Credit Union, 491 U.S. 164, 180,
109 S. Ct. 2363, 2374 (1989). In addition, we have
recognized that:

       [i]n the context of employment discrimination, the ADA,
       ADEA and Title VII all serve the same purpose--to
       prohibit discrimination in employment against
       members of certain classes. Therefore, it follows that
       the methods and manner of proof under one statute
       should inform the standards under the others as well.
       Indeed, we routinely use Title VII and ADEA caselaw
       interchangeably, when there is no material difference
       in the question being addressed.

Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 157 (3d Cir.
1995). This framework indicates that a cause of action for
harassment exists under the ADA. However, like other
_________________________________________________________________

1. Walton also requested amendment in order to assert a harassment
claim. The District Court treated this claim as having been stated in the
original complaint. See Part III, infra.

                               6
courts,2 we will assume this cause of action without
confirming it because Walton did not show that she can
state a claim.

A claim for harassment based on disability, like one
under Title VII, would require a showing that: 1) Walton is
a qualified individual with a disability under the ADA; 2)
she was subject to unwelcome harassment; 3) the
harassment was based on her disability or a request for an
accommodation; 4) the harassment was sufficiently severe
or pervasive to alter the conditions of her employment and
to create an abusive working environment; and 5) that
MHASP knew or should have known of the harassment and
failed to take prompt effective remedial action. See
McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558,
563 (5th Cir. 1998); see also Vendetta v. Bell Atlantic Corp.,
No. CIV.A. 97-4838, 1998 WL 575111, at *9 (E.D. Pa. Sep.
8, 1998).3
_________________________________________________________________

2. Many courts have proceeded on the assumption that the ADA creates
a cause of action for a hostile work environment but avoided confirming
that the claim exists. See, e.g., Wallin v. Minnesota Dept. of
Corrections,
153 F.3d 681, 687-88 (8th Cir. 1998), petition for cert. filed, 67
U.S.L.W.
3410 (U.S. Dec. 21, 1998) (No. 98-1007) ("We will assume, without
deciding, that such a cause of action exists."); Moritz v. Frontier
Airlines,
Inc., 147 F.3d 784, 788 (8th Cir. 1998) ("Although we are uncertain
whether such a cause of action exists, . . . [plaintiff] has failed to
establish a prima facie case of discrimination"); McConathy v. Dr.
Pepper/Seven Up Corp., 131 F.3d 558, 563 (5th Cir. 1998) (noting that
various district courts have assumed the claim's existence and assuming
its existence in order to dispense with appeal but stating that "[t]his
case
should not be cited for the proposition that the Fifth Circuit recognizes
or rejects an ADA cause of action based on hostile environment
harassment"). Our District Courts, likewise, have presumed the claim's
existence. See, e.g., Vendetta v. Bell Atlantic Corp., No. CIV.A. 97-4838,
1998 WL 575111 (E.D. Pa. Sep. 8, 1998) (noting that because the
Supreme Court has read a cause of action for harassment into Title VII,
the same is appropriate under the ADA). At least one circuit has
considered the claim without disavowing it. See Keever v. City of
Middletown, 145 F.3d 809, 813 (6th Cir.), cert. denied, 119 S. Ct. 407
(1998). Indeed, we have not discovered any case holding that the claim
cannot be asserted under the ADA.

3. Although the District Court did not mention the fifth element, it
correctly found that Walton had failed to meet others, and thus its
omission was harmless.
7
To prove an "abusive work environment" under Title VII,
the environment must be shown to be objectively hostile or
abusive, and the plaintiff must have perceived it as a
hostile or abusive environment. See Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 22, 114 S. Ct. 367, 371 (1993). Walton
would not need to prove that she suffered injury or that her
psychological well-being was seriously affected. See id., 114
S. Ct. at 371. She would, however, be called upon to show
that the harassment was "sufficiently severe or pervasive to
alter the conditions of [her] employment and create an
abusive working environment." Id. at 21, 114 S. Ct. at 370
(citing Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67, 106 S.
Ct. 2399, 2405 (1986)). To judge whether such an
environment is hostile or abusive, we must consider all
the circumstances, including "the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with an employee's
work performance." Id. at 23, 114 S. Ct. at 371. Walton
simply has not demonstrated that the asserted harassment
was pervasive or severe enough to meet the Harris
standard.

Walton asserts that various comments and actions by her
supervisor, Meek, amount to harassment,4 and she argues
that the District Court resolved disputed material factual
issues to rule on this claim at the summary judgment level.
We disagree.

Although it is clear that the relationship between Walton
and Meek was poor, Walton has not asserted facts that
_________________________________________________________________

4. The primary actions pointed to by Walton are: (1) Meek told Walton
that she would be fired if she did not attend the graduation ceremony for
ACT NOW (Walton is agoraphobic and later received permission not to
attend the graduation from one of Meek's superiors); (2) Meek once told
Walton she was "manic-depressive"; (3) Meek called her ten days
consecutively when she was first hospitalized, asking each day when she
would be returning to work (this upset Walton to the point that her
doctor asked her to request that Meek stop calling); (4) Meek stated in
her deposition that she believes persons with mental illness have
impaired judgment when they are suffering from their illness; and (5)
Meek forbade Walton's staff from speaking with her about the ACT NOW
program while she was hospitalized.

                               8
would allow a reasonable jury to find that Meek harassed
her because of her disability. See, e.g., Uhl v. Zalk Josephs
Fabricators, Inc., 121 F.3d 1133, 1137 (7th Cir. 1997) ("A
personality conflict doesn't ripen into an ADA claim simply
because one of the parties has a disability."). The fact that
Meek's behavior toward Walton may have been offensive
does not indicate that it was based on Walton's disability.
Finally, we agree with the District Court's conclusion that,
"[a]ll of these alleged incidents -- considered both
individually and together -- fall far short of meeting the
Harris standard." Walton, 1997 WL 717053, at *14.

IV.

Walton's disparate treatment claim asserted that MHASP
fired her while she was on leave because of her disability.
She now argues that she presented enough evidence to
raise an inference of pretext regarding MHASP's stated
reason for firing her, and thus to avoid summary judgment.
The McDonnell Douglas Title VII burden shifting rules apply
to claims of discriminatory treatment under the ADA. See
Lawrence v. National Westminster Bank N.J., 98 F.3d 61, 68
& n.7 (3d Cir. 1996). To establish a prima facie case of
disparate treatment, Walton "must prove by a
preponderance of the evidence that (1) [she] belongs to a
protected class; (2) [she] was qualified for the position; (3)
[she] was dismissed despite being qualified; and (4) [she]
was ultimately replaced by a person sufficiently outside the
protected class to create an inference of discrimination." Id.
at 68. The District Court assumed that Walton had stated
a prima facie case of discrimination under the ADA. 5 See
Walton, 1997 WL 717053, at *5.

Once the employee has established a prima facie case,
"the burden of production shifts to the employer to
`articulate some legitimate, nondiscriminatory reason for
the employee's rejection.' " See Fuentes v. Perskie, 32 F.3d
_________________________________________________________________

5. MHASP argued that Walton was not "qualified" under the ADA due to
her significant absences and therefore could not state a prima facie
discrimination claim. The District Court held that whether attendance
was essential to the job was a "hotly contested" fact in this case and
therefore construed the question in Walton's favor.

                               9
759, 763 (3d Cir. 1994) (quoting McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973)).
The District Court determined that MHASP had articulated
a legitimate, nondiscriminatory reason when it claimed that
Walton's failure to provide ACT NOW with the necessary
leadership and her extensive absences had led it to fear for
the program's future and therefore to dismiss Walton. See
Walton, 1997 WL 717053, at *6.

Because MHASP stated a "legitimate, nondiscriminatory"
reason for its action, Walton, to defeat summary judgment,
had to "point to some evidence, direct or circumstantial,
from which a fact finder could reasonably either (1)
disbelieve the employer's articulated legitimate reasons; or
(2) believe that an invidious discriminatory reason was
more likely than not a motivating or determinative cause of
the employer's action." Lawrence, 98 F.3d at 66. These
options enable a plaintiff to survive summary judgment,
without direct evidence, by producing "sufficient evidence to
raise a genuine issue of fact as to whether the employer's
proffered reasons were not its true reasons for the
challenged employment action."6 Sheridan v. E.I. DuPont de
Nemours and Co., 100 F.3d 1061, 1067 (3d Cir. 1996) (en
banc).

The defendant's intent in dismissing the plaintiff is a
factual question. See Chippolini v. Spencer Gifts, Inc., 814
F.2d 893, 899 (3d Cir. 1987) (en banc). Therefore, if Walton
can point to evidence that calls into question MHASP's
intent, she "raises an issue of material fact which, if
genuine, is sufficient to preclude summary judgment." Id. A
dispute regarding a material fact is genuine "if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S. Ct. 2505, 2510 (1986).

The District Court concluded that Walton had not offered
any evidence from which a reasonable jury couldfind that
MHASP's proffered reason for terminating Walton was
_________________________________________________________________

6. Of course, at trial, the plaintiff maintains the burden to persuade the
jury that the reason was pretextual and that the real reason for the
employer's action was discrimination. See St. Mary's Honor Center v.
Hicks, 509 U.S. 502, 511 n.4, 113 S. Ct. 2742, 2749 n.4 (1993).

                               10
pretextual. See Walton, 1997 WL 717053, at *7-10. Walton
argues that she produced both direct and indirect evidence
that MHASP's stated reasons were pretextual. She did not,
and we will affirm the District Court.

A. Direct Evidence of Pretext

Walton points to evidence that the high attrition rate in
the ACT NOW program, which MHASP claimed showed a
declining level of productivity in the program,"had long
been known to defendant," Appellant's Brief at 42, and was
due to such uncontrollable factors as the program
participants' "unreasonable expectations, insubordination,
absenteeism and drug abuse." Id. She asserts that she had
no control over the attrition rate. This argument is not
convincing. MHASP's concern with the program's declining
success rate and its reliance on the faltering results in its
decision to dismiss Walton was reasonable as long as
earlier program participants were faced with similar
difficulties. Walton did not claim that they were not.

Walton notes that it was Meek who pointed out
numerous faults in the program and claims that her
veracity is in doubt because she is the person who
purportedly harassed Walton. However, MHASP's
knowledge of ACT NOW's faltering results and of Walton's
significant absences did not depend on Meek's reports, and
Walton has not suggested that the data MHASP relied upon
was incorrect.7

B. Indirect Evidence of Pretext

Walton asserts that the timing and circumstances
surrounding her dismissal are sufficient to support an
inference that MHASP's stated reasons for terminating her
are pretextual. Factors including "the timing of an
employee's dismissal, and the employer's treatment of the
employee could raise an inference of pretext which would
make summary judgment for the employer inappropriate."
Josey v. John R. Hollingsworth Co., 996 F.2d 632, 638-39
(3d Cir. 1993).
_________________________________________________________________

7. Walton's assertion that MHASP cannot claim that it fired her for her
absences because her absences were largely a result of MHASP's abusive
treatment is unsupported by the facts. See Part III, supra.

                                  11
Walton cites White v. Westinghouse Electric Co., 862 F.2d
56 (3d Cir. 1989), for authority that the circumstances
surrounding her discharge may be sufficient to raise a
genuine issue of material fact and preclude summary
judgment. White was dismissed when he was three months
short of serving thirty years, upon which he would have
been entitled to greater retirement benefits and the option
to retire at a younger age. We decided that these
circumstances indicated that White was discriminated
against based on his age. However, the rationale behind
White was rejected by the Supreme Court in Hazen Paper
Co. v. Biggins, 507 U.S. 604, 113 S. Ct. 1701 (1993). In
Hazen, the Court considered a claim under the ADEA by an
employee who had been fired just before his pension would
have vested. In holding that the employer did not violate
the ADEA by firing the employee to prevent his pension
from vesting, the Court emphasized that a firing that may
be wrongful in one sense (to purposefully avoid paying
benefits, for example) is not necessarily wrongful under the
ADEA (or, in Walton's case, the ADA) "unless the protected
trait actually motivates the employer's decision." Id. at 610,
611-12, 113 S. Ct. at 1706, 1707-08. Therefore, our
inference in White that a wrongful firing that occurred
because an employee was about to gain increased pension
benefits indicated a wrongful firing based on age was
unfounded. Hazen teaches that we must not infer a
particular type of discrimination from circumstances that
merely indicate a wrongful firing of some sort. That is just
what Walton is asking us to do.

To consider timing and/or employee treatment in relation
to a dismissal as evidence of discrimination, there must be
some logical connection between the timing or treatment
and the possibility of the particular discrimination at issue.
For example, in Josey, 996 F.2d at 632, a company owned
by seven white shareholder employees adopted a new
preference for hiring and maintaining shareholders in the
midst of unrest following the promotion of a black
nonshareholder supervisor ahead of a white shareholder.
We found that the timing of the adoption of the new
company policy preferring shareholders, together with facts
that indicated racial prejudice by at least one shareholder,

                               12
was sufficient to create an issue of fact as to whether the
action was racially motivated. See id. at 640-41.

Walton asserts that MHASP's hiring of her replacement a
month before she was notified that she had beenfired
showed that the reasons it gave for her dismissal were
pretextual. Although she was fired while on leave and was
not given notice that she had been replaced until she was
about to return to work, it would be wrong to infer from
this that MHASP's decision to dismiss her was based on her
disability. Here, nothing connects the timing of the
dismissal or the related circumstances with a
discriminatory motive. Rather, the reverse is true. Walton
was let go during her longest extended absence. This would
clearly have brought any concerns that MHASP previously
had regarding her ability to do her job to a head and
increased the pressure on the association to replace her.

V.

Finally, Walton argues that the District Court erred by
holding that her proposed accommodation (being left on
extended leave) created an undue burden on MHASP.
Under the ADA, discrimination includes: "not making
reasonable accommodations to the known physical or
mental limitations of an otherwise qualified individual with
a disability who is an applicant or employee, unless[the
employer] can demonstrate that the accommodation would
impose an undue hardship on the operation of the business
of such [employer]." 42 U.S.C. S 12112(b)(5)(A). An undue
hardship entails "significant difficulty or expense in, or
resulting from, the provision of the accommodation." 29
C.F.R. S 1630, App. S 1630.2(p).

The circuits disagree whether the burdens of production
and persuasion on the issues of reasonable accommodation
and undue burden are properly placed on the plaintiff or
the defendant, or are divided between them. See Borkowski
v. Valley Cent. Sch. Dist., 63 F.3d 131, 136-37 (2d Cir.
1995) (recounting the various approaches). We now, like the

                                13
District Court, "chart a middle course," id. at 137, and
adopt the Borkowski approach:8

       First, the plaintiff bears the burden of proving that she
       is otherwise qualified; if an accommodation is needed,
       the plaintiff must show, as part of her burden of
       persuasion, that an effective accommodation exists
       that would render her otherwise qualified. On the issue
       of reasonable accommodation, the plaintiff bears only
       the burden of identifying an accommodation, the costs
       of which, facially, do not clearly exceed its benefits.
       These two requirements placed on the plaintiff will
       permit district courts to grant summary judgments for
       defendants in cases in which the plaintiff 's proposal is
       either clearly ineffective or outlandishly costly.

Id. at 139.

Following a prima facie showing by the plaintiff that a
reasonable accommodation exists which would make her
qualified, the burden shifts to the defendant to prove either
that the accommodation is unreasonable or that it creates
an undue hardship for the defendant. See id. at 138. These
two options before the defendant effectively "merge"
because "in practice meeting the burden of nonpersuasion
on the reasonableness of the accommodation and
demonstrating that the accommodation imposes an undue
hardship amount to the same thing." Id.

This distribution of burdens is both fair and efficient. The
employee knows whether her disability can be
accommodated in a manner that will allow her to
successfully perform her job. The employer, however, holds
the information necessary to determine whether the
proposed accommodation will create an undue burden for
it. See id. at 137. Thus, the approach simply places the
burden on the party holding the evidence with respect to
the particular issue.

Walton asserts that MHASP should have accommodated
_________________________________________________________________

8. We previously indicated, in dictum, our preference for the Borkowski
approach. See Shiring v. Runyon, 90 F.3d 827 (3d Cir. 1996) (a case
under the Rehabilitation Act).

                               14
her by continuing her leave of absence without firing her.9
The District Court concluded that Walton had made a facial
showing that unpaid leave was potentially a reasonable
accommodation for her sickness by introducing the letter
with which MHASP accepted her request for unpaid leave.
See Walton, 1997 WL 717053, at *11. Addressing MHASP's
decision to end its grant of unpaid leave, however, the
Court reasoned that the "same evidence that demonstrates
the legitimate, nondiscriminatory reason for firing plaintiff
. . . also demonstrates that the accommodation that
plaintiff seeks [continuation of her leave] created an undue
burden for the organization." Id. at *12. Therefore, the
Court held, MHASP had produced "sufficient
uncontroverted evidence to meet the burden of
demonstrating that the requested accommodation, although
possible, was not reasonable." Id.

We will affirm because Walton's requested
accommodation -- continued leave -- would have created
_________________________________________________________________

9. Walton originally alleged that MHASP failed to reasonably
accommodate her on a number of other occasions. She raises only this
instance on appeal.

In addition, she now argues that she could have been rehired "in a less
critical position than Director." In her reply brief, Walton further
extends
this argument by asserting that, because MHASP hired her replacement
without telling her, it failed to make a "good faith effort to communicate
with her regarding necessary and available accommodations."

MHASP responds that this argument is untimely because it was not
asserted by the plaintiff before the District Court. Walton originally
complained that "[d]efendant failed to reasonably accommodate
plaintiff 's request for a leave of absence without pay by violating its
own
stated policy respecting the duration of such absences." (The proposed
amended complaint did not alter this claim.) The District Court declined
to consider the reassignment issue because Walton did not raise the
issue in her complaint. See Walton, 1997 WL 717053, at *10 n.12. This
was not in error.

As to Walton's attempt to raise the issue before us,"absent exceptional
circumstances, an issue not raised in the district court will not be heard
on appeal." Altman v. Altman, 653 F.2d 755, 758 (3d Cir. 1981) (citation
omitted). In exceptional circumstances or when manifest injustice would
otherwise result, public interest can require that the issue be heard. See
id. This case does not present such circumstances.

                               15
an undue burden on MHASP. Reasonable accommodations
are "[m]odifications or adjustments to the work
environment, or to the manner or circumstances under
which the position held or desired is customarily
performed, that enable a qualified individual with a
disability to perform the essential functions of that
position." 29 C.F.R. S 1630.2(o)(1)(ii). Although unpaid leave
supplementing regular sick and personal days might, under
other facts, represent a reasonable accommodation, an
employer does not have to allow leave of this type to the
extent that MHASP had already granted it to Walton. A
blanket requirement that an employer allow such leave is
beyond the scope of the ADA when the absent employee
simply will not be performing the essential functions of her
position.

Walton attempts to use MHASP's past grants of unpaid
leave against it by arguing that these instances show that
the leave was a reasonable accommodation. Here, Holbrook
v. City of Alpharetta, Georgia, 112 F.3d 1522 (11th Cir.
1997), is informative. In Holbrook, the city accommodated a
visually-impaired police detective for a significant period of
time with respect to essential functions of his job which he
could not perform without assistance. The court held that
the city's decision to cease the accommodations did not
violate the ADA because the city's original accommodations
exceeded the level that the law required. See id. at 1528.
Similarly, the unpaid leave granted to Walton exceeded the
requirement of reasonable accommodation under the ADA,
and MHASP's decision to discontinue the accommodation
does not give her a cause of action against it.

VI.

In sum, Walton has not convinced us that the District
Court erred by granting MHASP's motion for summary
judgment on her claims of harassment, disparate
treatment, and failure to accommodate. Nor has she shown
that the District Court erred by not allowing her to amend
her complaint. Accordingly, we will affirm.

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A True Copy:
Teste:

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

                               17
