                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-22-1998

Gaul v. Lucent Tech Inc
Precedential or Non-Precedential:

Docket 97-5114




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Recommended Citation
"Gaul v. Lucent Tech Inc" (1998). 1998 Decisions. Paper 19.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/19


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Filed January 22, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-5114

DENNIS E. GAUL,
       Appellant

v.

*LUCENT TECHNOLOGIES INC.;
       JOHN DOES 1-100; JANE DOES 1-100;
ABC CORP.; XYZ CORP.

(*Amended per the Clerk's 9/29/97 order)

On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 94-cv-05263)

Argued December 4, 1997

BEFORE: COWEN, McKEE and WEIS,
Circuit Judges

(Filed January 22, 1998)

       Linda B. Kenney, Esq.
       Gregory S. Schaer, Esq. (argued)
       The Galleria
       2 Bridge Avenue
       Atrium Building #5, 2nd Fl.
       Red Bank, NJ 07701

        Counsel for Appellant
       Francis X. Dee, Esq. (argued)
       Carpenter, Bennett & Morrissey
       100 Mulberry Street
       Three Gateway Center
       Newark, NJ 07102

        Counsel for Appellee

OPINION OF THE COURT

COWEN, Circuit Judge.

This is an appeal by plaintiff-appellant, Dennis Gaul,
from the February 21, 1997, order of the United States
District Court for the District of New Jersey granting
summary judgment in favor of defendant-appellee, AT & T,
Inc. (AT & T), and dismissing plaintiff's complaint. Gaul v.
AT & T, 955 F. Supp. 346 (D.N.J. 1997). The district court
held that plaintiff was not disabled under the Americans
with Disabilities Act (ADA), 42 U.S.C. S 12101 et seq.,
because: (1) his depression and anxiety-related disorders
were not impairments that substantially limited his major
life activity of working; (2) there was no record of such
impairment; and (3) plaintiff was not regarded as having
such impairment. The district court also held that plaintiff
was neither "disabled" under the ADA nor "handicapped"
under the New Jersey Law Against Discrimination
(NJLAD), N.J.S.A. 10:5-1 et seq., because his proposed
accommodation--transfer to a position where he would not
be subjected to prolonged and inordinate stress by
coworkers--was unreasonable as a matter of law. Finally,
having concluded as a legal matter that plaintiff's proposed
accommodation was unreasonable, the district court held
that plaintiff's state law claims for breach of contract,
breach of the implied covenant of good faith and fair
dealing, and constructive discharge must also fail. We
affirm.

I.

Gaul began working for AT & T in 1981 as a Technical
Associate and was promoted to Senior Technical Associate

                               2
in 1983. He was diagnosed as suffering from depression
and anxiety-related disorders in March, 1984. Although his
condition was successfully controlled for more than a year
with anti-depressant drugs, Gaul suffered a nervous
breakdown in 1986. He was hospitalized for several weeks
and was absent from work for approximately three months
during that year.

Gaul eventually returned to work in early 1987. Once
again, he received drug treatment, and his condition
appeared under control. Indeed, by late 1988 or early 1989,
Gaul received a two-step promotion to Member of Technical
Staff. In June, 1990, however, Gaul suffered a relapse after
receiving an unfavorable performance review from his
manager at that time, Joe Warren, and again went out on
disability leave.

While out on disability leave, Gaul was contacted by Tang
Jampathon, a supervisor from AT & T's Cordless Telephone
Department. Jampathon expressed interest in having Gaul
work on a project for which Gaul's skills were required.
Gaul explained to Jampathon that he would be unable to
work under conditions of prolonged and inordinate stress,
and Jampathon assured him that the people in the
department would be very supportive. After receiving this
assurance, Gaul began seeing Dr. Morris Reby, a board
certified psychiatrist, about his desire to return to work
when medically able. Dr. Reby diagnosed Gaul as having
adjustment disorder with depression, anxiety, and
obsessive/compulsive personality. Gaul had several more
visits with Dr. Reby and was soon authorized to return to
work on a "limited basis."

Gaul returned to work on September 4, 1990, and was
permitted to work short hours for one week. From
September 4, 1990, until the time he started to work with
Donovan Folkes, a coworker, Gaul had no problem with
stress, except when a dispute arose in August, 1991,
between two coworkers. However, this situation rapidly
changed in December, 1991, when he was assigned to work
with Folkes on Phase II of the "International Project," also
known as the "Herring Project," the purpose of which was
to design a cordless telephone for the international market.
Gaul was responsible for physical design of the base unit of

                                3
the telephone set, and Folkes was assigned the handset
portion of the unit.

Gaul claims that almost from the outset, he and Folkes
had difficulty working together, resulting in a constant
source of stress for Gaul. Gaul accused Folkes of using
information from "his" data base on the base unit and of
not sharing information with him. Gaul also claims that
Folkes "may have" taken credit for one of Gaul's ideas and
that it "appeared" that Folkes would not acknowledge
Gaul's contributions to the team. He also claims that
Folkes failed to note Gaul's contribution during a March or
April, 1992 meeting and failed to list Gaul as a "co-author"
on a tooling estimate.

Gaul claims that he spoke to various people at AT & T
about his difficulties with Folkes. He first attempted to
resolve the problems with Folkes himself, but when these
attempts were unsuccessful, he complained, without avail,
to Jampathon in February, 1992. Gaul also sought help
from Paul Newland, team leader on the Herring Project, and
Patricia Kaufman, an Ombudsperson at AT & T. However,
neither Newland nor Kaufman provided assistance to Gaul.

In April, 1992, Gaul told Jampathon's replacement,
Edwin Muth, that the situation with Folkes was causing
him tremendous stress. Gaul again spoke to Muth in April
or May, 1992, and advised him that he was still having
trouble with Folkes. Muth told Gaul that he should take the
matter up with Steve Bourne, the department head.

Gaul spoke briefly to Bourne about Folkes in May or
June, 1992, and again in June or July, 1992. Bourne then
arranged a meeting with both Gaul and Folkes in mid-
August, 1992. Gaul contends that during this meeting he
told Bourne he was "stressed out" and suggested that he be
moved off the project. Shortly thereafter, Gaul allegedly
asked Bourne that he be transferred to a lower-stress
position. Specifically, Gaul claims that he told Bourne:

        . . . . "Mr. Bourne, if you don't help me, or if you
       can't help me at this point, I am going to get very sick,
       and I'm going to pop."

        Again, I looked him in the eye. I said, "Do you know
       what I mean by pop?"

                                4
        And I was trying to get an answer from him. He said,
       "I don't know what you mean by pop."

        I said, "Well, I am going to have a nervous
       breakdown, and I wouldn't be able to come back to
       work."

App. at 492-93. During this meeting, Bourne did not
respond one way or another to Gaul's transfer request.
Gaul admits that he never followed up on his transfer
request.

Approximately two weeks later, on September 11, 1992,
Gaul went out on disability leave. Since that time, he has
been out on long-term disability and has been receiving
payments from AT & T's disability insurance plan and from
the Social Security Administration. He has also made a
worker's compensation claim against AT & T, asserting that
his disability is work-related. Gaul claims that he cannot
perform his former duties at AT & T, nor, in fact, could he
work for any employer, unless he is protected from
prolonged and inordinate stress.

On September 9, 1994, Gaul filed a complaint against
AT & T, alleging four causes of action. In thefirst count,
Gaul alleges that he was handicapped within the meaning
of the NJLAD and that AT & T violated the NJLAD by failing
to accommodate his alleged handicap. In the second count,
Gaul alleges that AT & T violated public policy as embodied
in the ADA by failing to accommodate his disability. In the
third and fourth counts, respectively, Gaul alleges that
AT & T breached a contract with him and breached an
implied covenant of good faith and fair dealing.

AT & T subsequently filed a motion for summary
judgment. The district court entered an order granting the
motion on February 21, 1997. The district courtfirst
determined that Gaul's ADA claim must fail because he was
not "disabled" within the meaning of the act. More
specifically, the district court concluded that Gaul's
depression was not an impairment substantially limiting
his major life activity of working, that there was no record
of such impairment, and that there was no evidence AT & T
regarded Gaul as having such impairment. Next, the
district court concluded that plaintiff's NJLAD claim must

                               5
also fail because his request to be transferred away from
coworkers who subjected him to prolonged and inordinate
stress was unreasonable as a matter of law.1 Finally, the
district court determined that Gaul's claims for breach of
contract, breach of implied covenant of good faith and fair
dealing, and constructive discharge must fail because these
claims could not be maintained unless Gaul's proposed
accommodation was reasonable. This appeal followed.

II.

The district court had subject matter jurisdiction over
plaintiff's ADA claim pursuant to 28 U.S.C. S 1331 and
supplemental jurisdiction over the plaintiff's state law
claims pursuant to 28 U.S.C. S 1367. We have appellate
jurisdiction pursuant to 28 U.S.C. S 1291.

In reviewing an order granting summary judgment, we
exercise plenary review. Petruzzi's IGA Supermarkets, Inc. v.
Darling-Delaware Co., Inc., 998 F.2d 1224, 1230 (3d Cir.
1993). Viewing the facts in the light most favorable to the
nonmoving party, we look to see if there was a genuine
issue of material fact and, if not, whether the moving party
was entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249-50, 106 S. Ct. 2505, 2510-11 (1986).

III.

The primary issue before us is whether Gaul's request to
be transferred away from individuals causing him
_________________________________________________________________

1. The district court rejected AT & T's alternative argument that Gaul's
NJLAD claim must fail because he did not present any competent expert
medical evidence that he was handicapped at the time he stopped
working at AT & T. The court found that, for purposes of the summary
judgment motion, "the testimony and documentary evidence by
plaintiff's treating physician, including that by defendant's own
physicians, [was] sufficient to establish that Gaul does in fact suffer
from
stress and depressive disorders." Gaul, 955 F. Supp. at 349. Although
AT & T continues to press this argument on appeal, we need not reach
it because we also conclude that Gaul's proposed accommodation was
unreasonable as a matter of law. See infra.

                               6
prolonged and inordinate stress was unreasonable as a
matter of law under the ADA. We conclude that it is.

Congress enacted the ADA in 1990 in an effort to prevent
otherwise qualified individuals from being discriminated
against in employment based on a disability. See 29 C.F.R.
pt. 1630, App. at 347-48 (1997). The ADA provides that
"[n]o covered entity shall discriminate against a qualified
individual with a disability because of the disability of such
individual 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. S 12112(a) (1995).
The Act defines a "qualified individual with a disability" as
"an individual with a disability who, with or without
reasonable accommodation, can perform the essential
functions of the employment position that individual holds
or desires." Id. S 12111(8). An employer discriminates
against a qualified individual when it does "not mak[e]
reasonable accommodations to the known physical or
mental limitations of the individual unless the [employer]
can demonstrate that the accommodation would impose an
undue hardship on the operation of the business
of the [employer]." Id. S 12112(b)(5)(A). "Reasonable
accommodation" means measures such as "job
restructuring, part-time or modified work schedules,
reassignment to a vacant position, acquisition or
modification of equipment or devices, . . . and other similar
accommodations for individuals with disabilities." Id.
S 12111(9).

A plaintiff presents a prima facie case of discrimination
under the ADA by demonstrating: (1) he is a disabled
person within the meaning of the ADA; (2) he is otherwise
qualified to perform the essential functions of the job, with
or without reasonable accommodations by the employer;
and (3) he has suffered an otherwise adverse employment
decision as a result of discrimination. See Shiring v.
Runyon, 90 F.3d 827, 831 (3d Cir. 1996).2 This matter
_________________________________________________________________

2. Although Shiring interpreted the Rehabilitation Act of 1973, 29 U.S.C.
S 794 et seq., it is relevant to our analysis of the ADA because "in 1992
the Rehabilitation Act was amended to incorporate the standards of
several sections of the ADA, including the section defining `reasonable
accommodation.' " Mengine v. Runyon, 114 F.3d 415, 420 (3d Cir. 1997)
(citations omitted).

                               7
turns on the second element, namely, whether Gaul was a
"qualified individual."3 "[T]he burden is on the employee to
prove that he is `an otherwise qualified' individual." Id. at
832 (citing Buckingham v. United States, 998 F.2d 735,
739-40 (9th Cir. 1993)).

A two-part test is used to determine whether someone is
"a qualified individual with a disability." 29 C.F.R. pt. 1630,
App. at 353-54. First, a court must consider whether "the
individual satisfies the prerequisites for the position, such
as possessing the appropriate educational background,
employment experience, skills, licenses, etc." Id. at 353.
Second, the court must consider "whether or not the
individual can perform the essential functions of the
position held or desired, with or without reasonable
accommodation." Id. "The determination of whether an
individual with a disability is qualified is made at the time
of the employment decision." Id. at 353-54; see also
Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563
(7th Cir. 1996).

In the present matter, AT & T does not suggest that Gaul
lacked the requisite experience, skill, or education for the
vacancy he sought. Nor does Gaul suggest that he could
have performed the essential functions of his former job
_________________________________________________________________

3. AT & T also argues that plaintiff's ADA claim must fail because he is
not disabled within the meaning of the act. More specifically, AT & T
asserts that plaintiff has not shown that his impairment substantially
limits his major life activity of working because Gaul is not incapable of
performing 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. Appellee's Br. at 29. AT & T also contends that
Gaul
has failed to set forth any evidence that his impairment substantially
limited any other major life activities (e.g., sleeping, eating,
thinking).
Because we conclude below that plaintiff's proposed accommodation is
unreasonable as a matter of law, we need not reach this alternative
argument. Nevertheless, we strongly suspect that a plaintiff who is
unable to work with individuals who cause him "prolonged and
inordinate stress" cannot be said to be incapable of performing a "class
of jobs or a broad range of jobs in various classes." Cf. Weiler v.
Household Finance Corp., 101 F.3d 519, 524 (7th Cir. 1996) ("The major
life activity of working is not `substantially limited' if a plaintiff
merely
cannot work under a certain supervisor because of anxiety and stress
related to his review of her job performance." (citations omitted)).

                               8
without reasonable accommodation. Indeed, Gaul admits
that "because his fears of returning to the same stressful
work environment depressed him further, his anxieties
grew and were affecting him to the point that Dr. Reby
found him to be totally disabled." Appellant's Br. at 12.
Thus, we must consider whether plaintiff has demonstrated
a genuine issue of material fact regarding his ability to
perform the essential functions with reasonable
accommodation. White v. York Int'l Corp., 45 F.3d 357, 362
(10th Cir. 1995).

Gaul can satisfy this burden if he can make at least a
facial showing that his proposed accommodation is
possible. See Shiring, 90 F.3d at 832. More specifically,
Gaul must "demonstrate that there were vacant, funded
positions whose essential duties he was capable of
performing, with or without reasonable accommodation,
and that these positions were at an equivalent level or
position as [his former job]." Id. Gaul must also
demonstrate as part of his facial showing that the costs
associated with his proposed accommodation "are not
clearly disproportionate to the benefits that it will produce."
Borkowski v. Valley Cent. School Dist., 63 F.3d 131, 138 (2d
Cir. 1995). The term "costs" includes financial as well as
administrative burdens on a company. Cf. School Bd. of
Nassau County, Fla. v. Airline, 480 U.S. 273, 287 n.17, 107
S. Ct. 1123, 1131 n.17 (1987). If Gaul is able to make out
a prima facie showing, "the defendant then bears the
burden of proving, as an affirmative defense, that the
accommodations requested by the plaintiff are
unreasonable, or would cause an undue hardship on the
employer." Shiring, 90 F.3d at 831.

Based on the foregoing, we conclude that Gaul has failed
to satisfy his burden for three reasons. First, Gaul's
proposed accommodation would impose a wholly
impractical obligation on AT & T or any employer. Indeed,
AT & T could never achieve more than temporary
compliance because compliance would depend entirely on
Gaul's stress level at any given moment. This, in turn,
would depend on an infinite number of variables, few of
which AT & T controls. Moreover, the term"prolonged and
inordinate stress" is not only subject to constant change, it

                                9
is also subject to tremendous abuse. The only certainty for
AT & T would be its obligation to transfer Gaul to another
department whenever he becomes "stressed out" by a
coworker or supervisor. It is difficult to imagine a more
amorphous "standard" to impose on an employer.

Second, Gaul's proposed accommodation would also
impose extraordinary administrative burdens on AT &T. In
order to reduce Gaul's exposure to coworkers who cause
him prolonged and inordinate stress, AT & T supervisors
would have to consider, among other things, Gaul's stress
level whenever assigning projects to workers or teams,
changing work locations, or planning social events. Such
considerations would require far too much oversight and
are simply not required under law.

Third, by asking to be transferred away from individuals
who cause him prolonged and inordinate stress, Gaul is
essentially asking this court to establish the conditions of
his employment, most notably, with whom he will work.
However, "[n]othing in the ADA allows this shift in
responsibility." Weiler, 101 F.3d at 526. "Indeed, nothing in
the law leads us to conclude that in enacting the disability
acts, Congress intended to interfere with personnel
decisions within an organizational hierarchy. Congress
intended simply that disabled persons have the same
opportunities available to them as are available to
nondisabled persons." Wernick v. Federal Reserve Bank of
N.Y., 91 F.3d 379, 384 (2d Cir. 1996).

In sum, Gaul does not meet his burden under Shiring
because his proposed accommodation was unreasonable as
a matter of law. Therefore, Gaul is not a "qualified
individual" under the ADA, and AT & T's alleged failure to
investigate into reasonable accommodation is unimportant.
See Mengine, 114 F.3d at 420 (quoting Willis v. Conopco,
Inc., 108 F.3d 282, 285 (11th Cir. 1997)). Accordingly, the
district court properly granted summary judgment as to
Gaul's ADA claim.

Having concluded that Gaul's proposed accommodation
was unreasonable as a matter of law under the ADA, it
follows that his NJLAD claim must also fail. See Ensslin v.
Township of North Bergen, 275 N.J. Super. 352, 364, 646

                               10
A.2d 452, 458 (App. Div. 1994) (New Jersey courts
considering reasonable accommodation under NJLAD look
to case law interpreting federal law on same point) (citing
Andersen v. Exxon Co., U.S.A., 89 N.J. 483, 497 n.3, 446
A.2d 486, 493 n.3 (1982)). It also follows that plaintiff's
remaining state law claims (i.e., breach of contract, breach
of implied covenant of good faith and fair dealing, and
constructive discharge) must also fail because they too are
based on defendant's alleged failure to provide reasonable
accommodations. Accordingly, the district court properly
granted summary judgment as to plaintiff's state law
claims.

IV.

The February 21, 1997, order of the district court will be
affirmed.

A True Copy:
Teste:

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

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