                      United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-2071
                                    ___________

Ellen Fjellestad,                        *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of South Dakota.
Pizza Hut of America, Inc.,              *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: February 12, 1999

                                   Filed: June 16, 1999
                                    ___________

Before MURPHY, LAY, and JOHN R. GIBSON, Circuit Judges.
                           ___________


LAY, Circuit Judge.


       Ellen Fjellestad appeals the grant of summary judgment in favor of her former
employer, Pizza Hut of America, Inc., in a suit brought under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq. (1994). On appeal, Fjellestad
urges that the district court erred in holding (1) that she was not disabled within the
meaning of the ADA, and (2) that even if she was disabled, she was not a qualified
individual because she failed to articulate a reasonable accommodation that would
make her qualified for the job. We reverse and remand.
Background

       Fjellestad became unit manager of the Yankton, South Dakota, Pizza Hut
restaurant in September of 1978. Her duties as the manager included ensuring
customer satisfaction, supervising employees, maintaining a number of financial control
measures, managing bank deposits, training and hiring employees, ensuring restaurant
cleanliness, maintaining safety in the restaurant and managing general administration
of the restaurant. A Pizza Hut unit manager is expected to work fifty hours per week,
but may work fewer hours if they are able to accomplish their duties in less time.

       Fjellestad had received district and national recognition for her managerial skills
and was considered a capable and successful employee until she was seriously injured
in an automobile accident on December 14, 1994. She was hospitalized for nearly a
month after the accident and suffered a lacerated liver, severe chest injuries, blunt
trauma to her right shoulder, and multiple broken ribs. During her hospitalization and
recovery, Pizza Hut had Linda Folkers, a senior shift manager at the restaurant, serve
as acting manager of the restaurant.

       Fjellestad’s doctors prohibited her from returning to work until April 28, 1995,
when they released her to work for two hours every other day. After she fell in a
grocery store in early May, however, they again prohibited her from working. She
returned to work again on June 16, 1995, but her doctors allowed her to work only four
hours every other day for a total of twelve hours per week. Over the next six months,
she slowly regained her ability to work. By December 29, 1995, her doctors said she
was able to work thirty-five to forty hours per week, with no more than three
consecutive days at work.

       When Fjellestad returned to work in June 1995, Folkers continued to share some
of the unit manager duties and functioned as a “co-manager” with Fjellestad until
August of 1995. On August 24, 1995, when Fjellestad was released to work only

                                           -2-
twenty hours per week, she received the first of several memos from Rick Swanson,
her area Pizza Hut supervisor, criticizing her for poor performance. Swanson continued
to cite Fjellestad for poor performance as her work hours gradually increased.1
Fjellestad filed a grievance with Pizza Hut on November 15, 1995, regarding
Swanson’s conduct and requested reasonable accommodation for her medical
condition.

        On December 12, 1995, a representative from Pizza Hut’s human resources
department called Fjellestad about the grievance and told her that she would be allowed
to retain her position as unit manager because her doctor had released her to work a
sufficient number of hours to perform her duties. However, she was placed on a sixty-
day performance plan and Swanson evaluated her performance under the plan bi-
weekly. On January 16, 1996, Fjellestad’s doctor concluded that she had reached her
maximum recovery. Her doctors determined that she experienced a permanent thirty
percent impairment of her upper right extremity and would have “prominent weakness
in her arms long term with probably some residual deficits for the rest of her life.”
Swanson eventually terminated Fjellestad on February 8, 1996, (day 47 or 48 of the
plan), for allegedly failing to make adequate progress in meeting the targets set forth
in the performance plan. Linda Folkers was then named the unit manager of the
restaurant. Following her termination, Fjellestad filed two additional grievances with
Pizza Hut requesting reasonable accommodation. After they failed to take action, she
filed this lawsuit.




      1
         He also met with her on October 23, 1995, and told her that once she had
exhausted the leave time available to her under the Family Medical Leave Act she
would be welcomed back to the full-time responsibility of running the restaurant, but
that if she was unable to work the required 50 hours per week she would be demoted
to a shift manager position at the restaurant.

                                         -3-
        The ADA prohibits employers from discriminating “against a qualified individual
with a disability because of the disability of such individual.” 42 U.S.C. § 12112(a).
To establish a claim under the ADA, a plaintiff must show (1) that she is disabled
within the meaning of the Act; (2) that she is qualified to perform the essential functions
of the job either with or without accommodation; and (3) that she has suffered adverse
employment action because of the disability. Benson v. Northwest Airlines, Inc., 62
F.3d 1108, 1112 (8th Cir. 1995). In granting summary judgment, the district court held
that Fjellestad failed to establish a claim because she was not disabled under the ADA,
and even if she were, she is not qualified to perform the essential functions of the job
with or without reasonable accommodation. This appeal followed.

Disability Under the ADA

       The ADA defines disability as “(A) a physical or mental impairment that
substantially limits one or more of the major life activities of such individual; (B) a
record of such an impairment; or (C) being regarded as having such an impairment.”
42 U.S.C. § 12102(2). Major life activities include caring for one’s self, performing
manual tasks, walking, seeing, hearing, breathing, learning and working. 29 C.F.R. §
1630.2(i) (1998). Sitting, standing, lifting and reaching also are considered major life
activities. Helfter v. United Parcel Serv., Inc., 115 F.3d 613, 616 (8th Cir. 1997). An
impairment is “substantially limiting” if it renders an individual unable to perform a
major life activity that the average person in the general population can perform, or if
it significantly restricts the condition, manner, or duration under which an individual
can perform a particular major life activity as compared to an average person in the
general population. 29 C.F.R. § 1630.2(j)(1)(i)-(ii). The following factors are
considered in determining whether a person is substantially limited in a major life
activity: (1) the nature and severity of the impairment; (2) its duration or anticipated
duration; and (3) its long-term impact. 29 C.F.R. § 1630.2(j)(2)(i)-(iii). Additionally,
the determination of whether an individual is substantially limited in a major life activity


                                            -4-
must be made on a case by case basis. Doane v. City of Omaha, 115 F.3d 624, 627
(8th Cir. 1997), cert. denied, 118 S. Ct. 693 (1998).

       Fjellestad contends that she is substantially limited in the major life activities of
sleeping, bathing, sitting and working. The district court rejected each of her
contentions. We find that a triable issue of fact exists regarding whether Fjellestad was
substantially limited in the major life activity of working.

       A person is substantially limited in working if she is “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. The factors to be considered include: the number and type of jobs from which the
impaired individual is disqualified; the geographical area to which the individual has
reasonable access; and the individual’s job training, experience, and expectations.
Helfter, 115 F.3d at 617; 29 C.F.R. § 1630.2(j)(3)(ii). In Webb v. Garelick Mfg. Co.,
94 F.3d 484, 488 (8th Cir. 1996), this court stated, “the ADA is concerned with
preventing substantial personal hardship in the form of significant reduction in a
person’s real work opportunities. A court must ask ‘whether the particular impairment
constitutes for the particular person a significant barrier to employment,’” and the
person’s expertise, background, and job expectations are relevant in defining the class
of jobs used to determine whether the person is disabled. Id. at 488 (citations omitted).
Finding that an individual is substantially limited in his or her ability to work requires
a showing that his or her overall employment opportunities are limited. Miller v. City
of Springfield, 146 F.3d 612, 614 (8th Cir. 1998).

      Fjellestad has created a factual dispute about whether her overall employment
opportunities are limited. Fjellestad lives in a rural town in South Dakota. She worked
nearly twenty years for Pizza Hut in the restaurant management business and
adequately performed her duties prior to her accident. Her entire work training,
experience, and expectations lie in restaurant management. After her accident and

                                            -5-
lengthy recovery, however, she is no longer able to work the long hours or perform her
duties to the level of success she previously achieved. Furthermore, Rick Ostrander,
an occupational specialist, reported that there were 28,000 available jobs in South
Dakota that fit her vocational profile, but that she is eligible for only about 1,300 of
these jobs due to her functional limitations. He found that this represented a 91 percent
reduction in employability, and a 95 percent reduction in labor market access based on
actual positions available. Significantly, Fjellestad has been unable to obtain
employment following her termination.

       It is undisputed that Fjellestad’s doctors have given her a permanent thirty
percent impairment of her upper right extremity, and have imposed restrictions that
limit her to working 35-40 hours per week with no more than three consecutive days
of work.2 These medical restrictions create a triable issue as to whether Fjellestad’s
impairments have significantly restricted the condition, manner, or duration in which
she can work as compared to an average person in the general population. See 29
C.F.R. § 1630.2(j)(1)(i)-(ii).3

Qualified Individual/Reasonable Accommodation



      2
       The facts in this case are thus distinguishable from those in Berg v. Norand
Corp., 169 F.3d 1140 (8th Cir. 1999), in which this court recently held that a plaintiff
who was limited to working 40-50 hours per week was not substantially limited in the
major life activity of working. The diabetic plaintiff in Berg could work 40-50 hours
per week, more than a full-time work week, and after being terminated, was never
unemployed, started her own tax and accounting practice, and became the chief
financial officer of a construction company. Id. at 1145.
      3
         Plaintiff also argues that Pizza Hut regarded her as disabled. Because we find
that a triable issue of material fact exists as to whether Fjellestad was actually disabled
under the first prong of the ADA’s definition of disability, we need not address her
“regarded as” claimed.

                                           -6-
       The next question is whether Fjellestad was qualified to perform the essential
functions of her job with or without reasonable accommodation. Fjellestad essentially
concedes that she could not perform the essential functions of the unit manager position
without reasonable accommodation. The district court found that she was not qualified
under the ADA because she could not perform the work of a unit manager with or
without accommodation. Under the circumstances, we must consider whether Pizza
Hut failed to provide reasonable accommodations to Fjellestad that would have allowed
her to perform the essential functions of the position. Fjellestad is only required to
make a facial showing that reasonable accommodation is possible. Benson, 62 F.3d
at 1112. At that point, the burden of production shifts to Pizza Hut to show that it is
unable to accommodate Fjellestad. Id.

       Fjellestad argues that two reasonable accommodations were possible. First,
Fjellestad contends that Pizza Hut could have accommodated her by creating a
permanent co-manager position in which she shared unit managerial responsibilities
with a co-manager, similar to the way in which she had earlier shared managerial
responsibilities with Linda Folkers. Second, Fjellestad contends that Pizza Hut could
have accommodated her by assigning her to the shift manager position that became
vacant when Linda Folkers was promoted to unit manager. The district court rejected
both of these suggested accommodations. The district court found the co-manager
accommodation to be unreasonable because the ADA does not require an employer to
create a new position to accommodate a disabled employee or to shift the essential
functions of the position to other employees. See Benson, 62 F.3d at 1114-15;
29 C.F.R. § 1630, App. § 1630.2(o).

       We agree that requiring Pizza Hut to create a co-manager position is not a
reasonable accommodation. Benson, 62 F.3d at 1112. While job restructuring is a
possible accommodation under the ADA, this court has held that an employer need not
reallocate or eliminate the essential functions of a job to accommodate a disabled
employee. Id. Pizza Hut is not obligated to hire additional employees or reassign

                                          -7-
existing workers to assist Fjellestad in her essential duties. See Moritz v. Frontier
Airlines, Inc., 147 F.3d 784, 788 (8th Cir. 1998). Neither is Pizza Hut required to
create a new position or to create a permanent position out of a temporary one as an
accommodation. See Benson, 62 F.3d at 1114.

        Fjellestad has, however, made a facial showing and created a genuine issue of
material fact as to whether Pizza Hut could have reassigned her to the shift manager
position that became vacant when it promoted Linda Folkers to unit manager.
Reassignment to a vacant position is a possible accommodation under the ADA. See
42 U.S.C. § 12111(9)(B);4 Benson, 62 F.3d at 1114; 29 C.F.R. § 1630.2(o)(2)(ii). The
fact that Fjellestad competently performed her duties as a unit manager for close to
twenty years creates a fact question as to whether she was qualified for the shift
manager position and whether moving her to this position would be a reasonable
accommodation. After Fjellestad made this facial showing that reasonable
accommodation was possible, the district court should then have shifted the burden to
Pizza Hut to prove that it was unable to accommodate Fjellestad through reassignment
to this position. See Benson, 62 F.3d at 1115.

       The district court did not shift the burden, and Pizza Hut has offered no evidence
that Fjellestad was unable to perform this position. In fact, Pizza Hut even mentioned
assigning Fjellestad to shift manager in its internal correspondence and in its January
4, 1996 letter to Fjellestad. Pizza Hut now argues that Fjellestad could not perform the
shift manager position because it is a full-time job. However, Linda Folkers testified
that she worked 35-40 hours per week as a shift manager. Fjellestad’s doctors had


      4
        Reasonable accommodations may include: “job restructuring, part-time or
modified work schedules, reassignment to a vacant position, acquisition or modification
of equipment or devices, appropriate adjustment or modifications of examinations,
training materials or policies, the provision of qualified readers or interpreters, and
other similar accommodations . . . .” 42 U.S.C. § 12111(9)(B).

                                          -8-
released her to work this same number of hours at the time she was terminated, but she
was limited to no more than three consecutive days of work. Pizza Hut has failed to
show that the shift manager position required more than three consecutive days of
work. Although this accommodation may prove unreasonable once the essential
requirements of the position are developed, summary judgment is inappropriate without
such development. See id.

       The district court summarily dismissed this suggested accommodation because
Fjellestad rejected this accommodation in her November 15, 1995 letter in which she
generally stated: “Demotion or termination would not be consistent with employer
reasonable accommodation duties.” We find the district court’s analysis ignored Pizza
Hut’s obligation under the ADA to help determine the appropriate reasonable
accommodation.

        An employer commits unlawful discrimination under the ADA if the employer
does “not mak[e] 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 [the employer].” 42
U.S.C. § 12112(b)(5)(A). The ADA’s regulations state that: “To determine the
appropriate reasonable accommodation it may be necessary for the [employer] to
initiate an informal, interactive process with the [employee] with a disability in need
of the accommodation. This process should identify the precise limitations resulting
from the disability and potential reasonable accommodations that could overcome those
limitations.” 29 C.F.R. § 1630.2(o)(3). (emphasis added). The EEOC’s interpretive
guidelines also state that: “Once a qualified individual with a disability has requested
provision of a reasonable accommodation, the employer must make a reasonable effort
to determine the appropriate accommodation.              The appropriate reasonable
accommodation is best determined through a flexible, interactive process that involves


                                          -9-
both the employer and the [employee] with a disability.” 29 C.F.R. § 1630, App. §
1630.9. (emphasis added).

       Other circuits have considered these regulations and interpretive guidelines and
have written differing interpretations of them. Some circuits have concluded that both
parties have a duty to act in good faith and assist in the search for appropriate
reasonable accommodations. See Taylor v. Phoenixville Sch. Dist., ___ F.3d ___,
1999 WL 184138 (3d Cir. 1999); Beck v. University of Wis. Bd. of Regents, 75 F.3d
1130, 1135 (7th Cir. 1996); Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165 (5th
Cir. 1996). Other circuits have concluded that no such obligation exists and that an
employer cannot be held independently liable under the ADA for simply failing to
engage in an interactive process to determine reasonable accommodations. See Barnett
v. U.S. Air, Inc., 157 F.3d 744, 752-53 (9th Cir. 1998); Willis v. Conopco, Inc., 108
F.3d 282, 285 (11th Cir. 1997); White v. York Int’l Corp., 45 F.3d 357, 363 (10th Cir.
1995).

       We tend to agree with those courts that hold that there is no per se liability under
the ADA if an employer fails to engage in an interactive process. However, we feel the
interpretive guidelines set forth when it is “necessary” for an employer to initiate an
informal interactive process with an employee in need of accommodation. The
guidelines set forth the predicate requirement that when the disabled individual requests
accommodation, it becomes necessary to initiate the interactive process. Although an
employer will not be held liable under the ADA for failing to engage in an interactive
process if no reasonable accommodation was possible, we find that for purposes of
summary judgment, the failure of an employer to engage in an interactive process to
determine whether reasonable accommodations are possible is prima facie evidence
that the employer may be acting in bad faith. Under these circumstances, we feel a
factual question exists as to whether the employer has attempted to provide reasonable
accommodation as required by the ADA.


                                           -10-
        In Taylor v. Phoenixville Sch. Dist., the Third Circuit held that once the
employer knows of an employee’s disability and the employee or the employee’s
representative has requested accommodation, the employer’s obligation to participate
in the interactive process has been triggered. Taylor, 1999 WL 184138, at *13. The
Third Circuit held that a disabled employee must demonstrate the following factors to
show that an employer failed to participate in the interactive process: “1) the employer
knew about the employee’s disability; 2) the employee requested accommodations or
assistance for his or her disability; 3) the employer did not make a good faith effort to
assist the employee in seeking accommodations; and 4) the employee could have been
reasonably accommodated but for the employer’s lack of good faith.” Id. at *19
(citations omitted).

       Applying this analysis in the present case, we find that Fjellestad has created a
genuine issue of fact about whether Pizza Hut failed to participate in the interactive
process. First, Pizza Hut had more than enough information to put it on notice that
Fjellestad might have a disability. Pizza Hut knew that she was involved in a car
accident in which she suffered serious physical injuries that required hospitalization for
nearly a month. Pizza Hut had several notes on record from her physicians that
contained various work restrictions, and they knew that at full recovery she was
diagnosed with a permanent thirty percent impairment of her upper right extremity.
They also knew that she was not performing her job to the level she had been
performing in the nearly twenty years preceding her accident.

       Second, Fjellestad specifically requested reasonable accommodation. In
response to the criticism and warnings she had received from Swanson, she submitted
her November 15, 1995 grievance letter to Pizza Hut in which she wrote, “I request
that I be reasonably accommodated.”5 Once Fjellestad made this request, Pizza Hut


      5
      Although in this case Fjellestad made a written request and used the relevant
words of “reasonable accommodation,” as the Third Circuit stated in Taylor, an

                                          -11-
was required to initiate an interactive process with Fjellestad to determine the
appropriate reasonable accommodation.

       Third, viewing the evidence in the light most favorable to Fjellestad, we believe
a dispute exists whether Pizza Hut made a good faith effort to engage in the interactive
process, and that a reasonable jury could conclude that Pizza Hut has not met its burden
to engage in an interactive process to determine whether an appropriate reasonable
accommodation existed.6 Prior to her accident, Fjellestad performed her job
competently for nearly twenty years. After her accident, however, Swanson
documented her deficiencies and repeatedly warned her about declining performance.
Fjellestad requested accommodation. Instead, Fjellestad has presented evidence that
Pizza Hut placed her on a sixty-day performance plan, terminated her on day forty-
seven or forty-eight of the plan when she failed to meet the performance expectations
outlined in the plan, and never offered her reassignment or discussed whether other
accommodations were available. Although her grievance letter generally rejected
demotion as a possible reasonable accommodation, Pizza Hut had never previously
discussed accommodation options with Fjellestad or explained that assignment to a
shift manager might be the only possible accommodation. It is undisputed that this
position was never offered to Fjellestad. Her perception that demotion was an




employee is not required to request accommodation in writing, or to use the magic
words of “reasonable accommodation.” See Taylor, 1999 WL 184138, at *12. The
notice must merely make it clear to the employer that the employee wants assistance
for his or her disability. Id.
      6
        That is not to say, however, that Pizza Hut did nothing to accommodate
Fjellestad’s recovery. Indeed, Pizza Hut held her position open during her
hospitalization, had another employee perform her duties during her absence and help
her after she returned, and scheduled her within her doctor’s hourly restrictions.

                                         -12-
unacceptable accommodation did not relieve Pizza Hut from the obligation of
discussing with her the possible accommodations that were appropriate and available.7

      Finally, assuming Pizza Hut failed to act in good faith by engaging in such a
process, Pizza Hut has presented no evidence that it would have been unable to
accommodate Fjellestad by assigning her to the vacant shift manager position. Pizza
Hut and the district court emphasize that Fjellestad did not specifically request any of
the accommodations that she now suggests are reasonable. As the Third Circuit
recognized in Taylor, however, this fact is not fatal to Fjellestad’s claim:

      The interactive process, as its name implies, requires the employer to take
      some initiative. . . . The interactive process would have little meaning if
      it was interpreted to allow employers, in the face of a request for
      accommodation, simply to sit back passively, offer nothing, and then, in
      post-termination litigation, try to knock down every specific
      accommodation as too burdensome. That’s not the proactive process
      intended: it does not help avoid litigation by bringing the parties to a
      negotiated settlement, and it unfairly exploits the employee’s comparative
      lack of information about what accommodations the employer might
      allow.

Taylor, 1999 WL 184138, at *15 (footnote omitted). An employer who has received
notice that reasonable accommodation is requested “cannot escape its duty to engage
in the interactive process simply because the employee did not come forward with a
reasonable accommodation that would prevail in litigation.” Id. at *16.


      7
       The Third Circuit recognized that employers can show their good faith attempt
to find a reasonable accommodation in a many ways, such as meeting with the
employee who requests accommodation, requesting information about the condition and
what limitations the employee has, asking the employee what he or she specifically
wants, showing some sign of having considered the employee’s request, and offering
and discussing available alternatives when the employee’s request is too burdensome.
Taylor, 1999 WL 184138, at *17.

                                         -13-
       In sum, we find that summary judgment is typically precluded when there is a
genuine dispute as to whether the employer acted in good faith and engaged in the
interactive process of seeking reasonable accommodations. In Taylor, the court stated:

      [B]ecause employers have a duty to help the disabled employee devise
      accommodations, an employer who acts in bad faith in the interactive
      process will be liable if the jury can reasonably conclude that the
      employee would have been able to perform the job with accommodations.
      In making that determination, the jury is entitled to bear in mind that had
      the employer participated in good faith, there may have been other,
      unmentioned possible accommodations. . . .

             When an employee has evidence that the employer did not act in
      good faith in the interactive process, however, we will not readily decide
      on summary judgment that accommodation was not possible and the
      employer’s bad faith could have no effect.              To assume that
      accommodation would fail regardless of the employer’s bad faith would
      effectively eliminate the requirement that employers must participate in
      the interactive process.

Id. at *17-18.

       We must emphasize, however, that by requiring the employer to engage in an
interactive process, we do not hold that any particular accommodation must be made
by the employer. The employee still carries the burden of showing that a particular
accommodation rejected by the employer would have made the employee qualified to
perform the essential functions of the job. See id. at *16. “All the interactive process
requires is that employers make a goodfaith effort to seek accommodations.” Id.

       We, therefore, reverse the district court’s determination that Fjellestad was not
disabled within the meaning of the ADA and not qualified to perform the essential
functions of the position with reasonable accommodation. We find that material issues
of fact remain on these issues that preclude summary judgment.

                                         -14-
       We reverse the district court’s order granting summary judgment and remand the
case for further proceedings.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                        -15-
