                                                      NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                   _____________

                                    No. 12-3436
                                   _____________

                               SHARYN SOLOMON,

                                                           Appellant
                                           v.

                    SCHOOL DISTRICT OF PHILADELPHIA



                  On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                        (District Court No: 2:10-cv-03221)
                   District Judge: Honorable Stewart R. Dalzell


                    Submitted under Third Circuit L.A.R. 34.1(a)
                                  May 23, 2013

           Before: RENDELL and GREENAWAY, JR., Circuit Judges
                      and ROSENTHAL*, District Judge.

                          (Opinion Filed: August 12, 2013)




*
 The Honorable Lee H. Rosenthal, United States District Judge for the Southern District
of Texas, sitting by designation.
                                         OPINION


ROSENTHAL, District Judge:

       Sharyn Solomon alleged that her former employer, the School District of

Philadelphia (“School District”), violated federal and state law by refusing to grant

her reasonable accommodations after she suffered herniated disks and related back

problems. She sued under the Americans with Disabilities Act (“ADA”), 42

U.S.C. § 12101, et seq.; Section 504 of the Rehabilitation Act (“Rehabilitation

Act”), 29 U.S.C. § 794; and the Pennsylvania Human Relations Act (“PHRA”), 43

Pa. Cons. Stat. § 951, et seq.1 A jury trial resulted in a verdict for the School

District. The District Court denied Solomon‟s motion to alter or amend the

judgment under Federal Rule of Civil Procedure 59(e) or for a new trial under Rule

59(a), and Solomon appealed. We have jurisdiction under 28 U.S.C. § 1291. We

will affirm.




       1
          Because the ADA, Section 504, and the PHRA are applied similarly, the term “ADA”
is used here to refer to all three statutes. See Donahue v. Consol. Rail Corp., 224 F.3d 226, 229
(3d Cir. 2000); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999).
                                                2
                                         I.

                                    Background

      In October 2007, Gina Hubbard, the principal of the school where Solomon

worked as a special education teacher, informed her that a new class would be

placed in her second-floor resource room and she would be assigned a new upstairs

resource room. On October 19, Solomon saw a doctor because of back pain. She

was diagnosed some time later with herniated disks, sciatica, and neural foraminal

stenosis.

      On October 24, Solomon asked Hubbard if she could stay in her present

room because it was arranged to her liking and the new room was too small for her

materials. On November 9, Solomon began medical leave due to her back

condition. She and her doctors asked for a first-floor room assignment based on

medical restrictions against climbing stairs. Solomon was not given a first-floor

room and did not return to work.

      In April 2009, when Solomon‟s sick-leave benefits expired, she was

approved for a one-year sabbatical. When that ended, she applied and was

approved for retirement.

      Solomon filed this suit in July 2010, alleging that the School District had

violated the ADA, the Rehabilitation Act, and the PHRA by failing to provide a

                                         3
reasonable accommodation for her disabilities, engaging in intentional

discrimination, and retaliating against her. After a four-day trial, the jury returned

a verdict finding that Solomon had a disability under the ADA but there was no

disparate treatment or failure to accommodate. The District Court entered final

judgment.

      Solomon filed a timely motion to alter or amend the judgment under Rule

59(e) or for a new trial under Rule 59(a). The District Court denied the motion,

stating that “there was sufficient evidence to support the jury‟s verdict, and the

challenges that Solomon interposes to our rulings at trial are without merit for

reasons already rehearsed at trial.” Solomon timely appealed.

                                          II.

                                 The Legal Standard

      A court may grant a new trial after a jury trial under Rule 59(a)(1)(A) “on all

or some of the issues . . . for any reason for which a new trial has heretofore been

granted in an action at law in federal court . . . .” Fed. R. Civ. P. 59(a)(1)(A). A

Rule 59(a)(1)(A) motion should be granted only when “the great weight of the

evidence cuts against the verdict and . . . a miscarriage of justice would result if the

verdict were to stand.” Springer v. Henry, 435 F.3d 268, 274 (3d Cir. 2006)

(internal quotation marks omitted). The denial of a motion for new trial and to

                                           4
amend a judgment is reviewed for abuse of discretion, but questions of law are

reviewed de novo. Thabault v. Chait, 541 F.3d 512, 532 (3d Cir. 2008); Cureton v.

Nat’l Coll. Athletic Ass’n, 252 F.3d 267, 272 (3d Cir. 2001).2

                                          III.

                                      Discussion

      The ADA prohibits employers from discriminating “against a qualified

individual on the basis of disability in regard to job application procedures, the

hiring, advancement, or discharge of employees, employee compensation, job

training, and other terms, conditions, and privileges of employment.” 42 U.S.C.

§ 12112(a). A “qualified individual” with a disability is a person who, “with or

without reasonable accommodation, can perform the essential functions of the

employment position that such individual holds or desires.” 42 U.S.C. § 12111(8).

A reasonable-accommodation claim requires a plaintiff to show that her employer

failed to make “reasonable accommodations to the known physical or mental

limitations of an otherwise qualified individual with a disability who is an . . .

      2
         In this appeal, Solomon also seeks judgment in her favor as a matter of
law, citing Rule 59(e). Rule 50 governs a motion for judgment as a matter of law;
Rule 59(e) applies to a motion to alter or amend a judgment. Solomon did not “file
for judgment as a matter of law both before the case [was] submitted to the jury
and after a verdict [was] returned.” Pediatrix Screening, Inc. v. Telechem Int’l,
Inc., 602 F.3d 541, 546 (3d Cir. 2010). Therefore, we consider the motion only
under Rule 59(a) and (e).
                                           5
employee, unless the [employer] can demonstrate that the accommodation would

impose an undue hardship on the operation of the business of [the employer].” 42

U.S.C. § 12112(b)(5)(A).

                                         A.

                               The Evidence at Trial

      Solomon argues that there was overwhelming evidence that the School

District failed to provide her with a reasonable accommodation for her back

problems after she and her doctors repeatedly informed the District about medical

restrictions preventing her from walking up stairs, carrying objects heavier than

five pounds, and bending. Solomon argues that the School District violated the

ADA by not responding to her requests, made directly and through her doctors,

that she be given a first-floor room instead of the second-floor room she previously

had or the upstairs room she was assigned.

      There was ample evidence that the School District offered Solomon the use

of an elevator to get to her assigned resource room and to go to and from other

classrooms, and that this accommodation was reasonable and sufficient. Hubbard

testified that Solomon could use the elevator to get to her regular room and to other

classrooms where she was needed. Hubbard and Henry Gross, an administrator for

the School District‟s special education programs, testified that Solomon did not

                                          6
need any other accommodation aside from the elevator to perform her job, which

did not require her to lift or carry beyond the five-pound limit set by her doctors.

      There was also evidence that, in requesting assignment to a first-floor room,

Solomon was motivated by other concerns. It was only after Hubbard asked

Solomon to move from her second-floor room to a smaller upstairs room that

Solomon raised her disability or need for accommodation, citing the room size as

the primary reason.

      Solomon argues that Hubbard‟s offer of elevator access was not a reasonable

accommodation because it was made before Hubbard learned that Solomon‟s

doctor had told her not to climb stairs. Hubbard testified, however, that when she

called Solomon in January 2008 and offered elevator access, she knew of

Solomon‟s stair-climbing restriction. Hubbard testified that she had previously

offered Solomon use of the elevator on several occasions. Even if the School

District did not then have a complete understanding of Solomon‟s limits and

restrictions, a reasonable jury could have concluded that elevator access was a

reasonable accommodation once the School District learned about them.

      Solomon argues that the School District violated the ADA because it did not

offer her another teaching or administrative position despite acknowledging that

she was qualified to hold other positions and that positions were available that

                                          7
could have accommodated her disabilities. Although an employer has a duty to

offer a reasonable accommodation to a qualified employee, “an employee cannot

make [the] employer provide a specific accommodation if another reasonable

accommodation is instead provided.” Hankins v. The Gap, Inc., 84 F.3d 797, 800–

01 (6th Cir. 1996). A reasonable juror could have found that by offering elevator

access, the School District had fulfilled its duty under the ADA and was under no

obligation to offer the additional accommodations Solomon requested.

      Solomon contends that the School District is liable because it did not engage

in an interactive process once it learned the extent of her back problem. “[W]hile

an employer who fails to engage in the interactive process runs a serious risk that it

will erroneously overlook an opportunity to accommodate a statutorily disabled

employee, and thereby violate the ADA, failure to engage in the interactive

process, in itself, does not constitute such a violation.” Hohider v. United Parcel

Serv., Inc., 574 F.3d 169, 194 (3d Cir. 2009) (internal quotation marks and citation

omitted). Because the School District‟s offer of the elevator reasonably

accommodated her disabilities, the “alleged failure to [further] investigate into

reasonable accommodation is unimportant.” Gaul v. Lucent Technologies, 134

F.3d 576, 581 (3d Cir. 1998).

      Solomon also argues that the School District required employees to show

                                          8
that they had “no restrictions” before approving them to return to work, and that

this violated the ADA. We have held that “plaintiffs [cannot] reach a

determination of unlawfulness under the ADA by proving only the existence of a

„100% healed‟ policy, without any inquiry into whether that policy has been used

to discriminate against individuals protected by the ADA from such

discrimination.” Hohider, 574 F.3d at 195; see also Hutchinson v. United Parcel

Serv., Inc, 883 F. Supp. 379, 397–98 (N.D. Iowa 1995) (holding that a “100%

healed” policy is a per se violation of the ADA but that the plaintiff could not

assert that violation because she received individualized treatment despite the

policy). Solomon cannot show that a “no-restrictions” policy was applied to her in

violation of the ADA.

                                         B.

   Challenges to the District Court’s Evidentiary Rulings and Jury Instructions

      Solomon contends that the District Court erred in excluding from evidence

two letters written by her therapist. The admissibility of evidence is reviewed for

abuse of discretion. Coleman v. Home Depot, 306 F.3d 1333, 1341 (3d Cir. 2002).

The letters were cumulative in light of evidence showing that the School District

was aware of Solomon‟s disability and reasonable accommodation requests, and

offered her reasonable accommodation. There is no basis for reversal because “it

                                          9
is highly probable that [any] error did not affect the judgment.” Gen. Motors Corp.

v. New A.C. Chevrolet, Inc., 263 F.3d 296, 329 (3d Cir. 2001).

      Solomon also argues that the District Court erred in admitting portions of

her deposition testimony at trial. She objected on the basis that the School District

did not make timely pretrial designations of the deposition testimony, but the

School District was not required to do so for testimony used for impeachment

purposes. Solomon also argues on appeal that despite an in limine order, the

School District included in the deposition excerpts it presented to the jury her

testimony about a compromise offer by the School District and her receipt of

Social Security disability benefits. See Fed. R. Civ. Proc. 68(b); Fed. R. Evid. 408.

But the references to the Rule 68 offer and Solomon‟s disability benefits were brief

and isolated. See Anastasio v. Schering Corp., 838 F.2d 701, 706 (3d Cir. 1988).

The record reflects that when the testimony was presented, Solomon did not ask

for a curative instruction. Given the ample evidence that Solomon was offered a

reasonable accommodation, any error was harmless.

      Solomon argues that the District Court‟s jury instructions were misleading

and provided inadequate guidance for her disparate-treatment claim. The District

Court agreed to include a disparate-treatment instruction at Solomon‟s request,

although not with the specific language she submitted. Disparate-treatment claims

                                         10
focus on whether and the extent to which a party is treated differently on the basis

of a protected status. See, e.g., DeLuca v. Winer Indus., Inc., 53 F.3d 793, 797–98

(7th Cir. 1995). Solomon‟s claims were based on the School District‟s failure to

grant her an accommodation. Such a claim challenges actions and policies that are

facially neutral. See McGary v. City of Portland, 386 F.3d 1259, 1266 (9th Cir.

2004) (“[T]he crux of a reasonable accommodation claim is a facially neutral

requirement that is consistently enforced.”). The District Court‟s inclusion of a

disparate-treatment instruction, which Solomon requested, was unnecessary but did

not affect the outcome and is not a basis to alter the judgment or for a new trial.

                                         IV.

                                     Conclusion

      Therefore, we will affirm the District Court‟s denial of Solomon‟s motion to

alter or amend the judgment or, alternatively, for new trial.




                                          11
