Conneen v. MBNA Amer Bank NA ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
6-27-2003
Conneen v. MBNA Amer Bank NA
Precedential or Non-Precedential: Precedential
Docket No. 02-1504
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PRECEDENTIAL
Filed June 27, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-1504
MARGARET D. CONNEEN,
Appellant
v.
MBNA AMERICA BANK, N.A.
On Appeal from the United States District Court
for the District of Delaware
(Dist. Ct. No. 00-cv-00944)
District Judge: Hon. Gregory M. Sleet
Argued: November 7, 2002
Before: McKEE, GREENBERG, Circuit Judges and
LIFLAND,* District Judge
(Opinion Filed: June 27, 2003)
JEFFREY. K. MARTIN, ESQ. (Argued)
Jeffrey K. Martin, P.A.
1509 Gilpin Avenue
Wilmington, Delaware 19806
Attorney for Appellant
* Honorable John C. Lifland, Senior Judge of the United States District
Court for the District of New Jersey, sitting by designation.
2
BENJAMIN N. GUTMAN, ESQ.
(Argued)
Equal Employment Opportunity
Commission
1801 L. Street, N.W.,
Washington, DC 20507
Attorney for Amicus-Curiae-EEOC
SHELDON N. SANDLER, ESQ.
(Argued)
JOANNE C. SPRINGER-MESSICK
Young Conaway Stargatt &
Taylor, LLP
The Brandywine Building
1000 West Street, 17th Floor
P.O. Box 391
Wilmington, Delaware 19899-0391
Attorneys for Appellee
OPINION OF THE COURT
McKEE, Circuit Judge.
Margaret Conneen1 appeals the district court’s dismissal
of the suit she brought against MBNA America Bank, N.A.,
her former employer. She alleges that her termination from
MBNA was a violation of the Americans with Disabilities Act
of 1990, 42 U.S.C. § 12101 and 28 U.S.C. § 1343(a)(4) (the
“ADA”), and a breach of obligations imposed on MBNA by
the covenant of good faith and fair dealing implied under
Delaware law. The district court granted summary
judgment in favor of MBNA, and against Conneen, and this
appeal followed. The court concluded that Conneen was not
entitled to the protection of the ADA because she could not
demonstrate that she could perform the essential functions
of her job with or without an accommodation. Although we
disagree with that conclusion, we nevertheless affirm the
grant of summary judgment in favor of MBNA as there is no
genuine issue of material fact that would allow a reasonable
1. Margaret Conneen is now known as Margaret Dayton. To avoid
confusion, we will refer to her as “Conneen.”
3
juror to conclude that MBNA terminated Conneen because
of her disability or that MBNA failed to engage in the
interactive process as required under the ADA.
I. BACKGROUND
Conneen was employed by MBNA from July 21, 1986
through June 25, 1998. During that time she rose to the
position of Marketing Production Manager. She went on
short-term disability leave in September of 1996, after she
began suffering from clinical depression. Her treating
psychiatrist, Dr. Alan Seltzer, diagnosed her as suffering
from a “major depressive episode with severe psychotic
symptoms.” The medications he prescribed included
Effexor, an antidepressant.
In December of 1996, Dr. Seltzer noted that Conneen was
“in partial remission” and “no longer psychotic,” and he
removed her from all medications except Effexor. Shortly
thereafter, on February 18, 1997, Conneen met with an
MBNA Health Services nurse, who approved Conneen’s
return to work. The very next day, Conneen returned to
work on a part-time basis, working four hours per day. In
March of 1997, Conneen resumed her regular hours
working full-time from 8:00 a.m. to 5:00 p.m. with no
restriction or accommodation for her depression. However,
Conneen continued to take Effexor pursuant to Dr. Seltzer’s
recommendation, and that medication purportedly resulted
in “morning sedation,” which made it difficult for her to
function in the mornings.2
John Miller, Conneen’s manager at the time, expressed
concern about Conneen’s frequent tardiness, and suggested
to Conneen that she speak with a representative of MBNA’s
Health Services unit if her tardiness was related to illness.
2. Dr. Seltzer was actually quite equivocal about the relationship
between Conneen’s medication and difficulties she had arriving for work
on time. At his deposition he testified that “[i]t is possible but not likely,”
that the Effexor was the cause of Conneen’s tardiness in the morning.
App. at B116. However, inasmuch as we are reviewing a grant of
summary judgment we must view this evidence in the light most
favorable to Conneen. Matczak v. Frankford Candy and Chocolate
Company, 136 F.3d 933 (3rd Cir. 1997).
4
On June 5, 1997, Conneen met with an MBNA nurse. As a
result of that conversation, MBNA agreed to accommodate
Conneen by allowing her to begin work at 8:30 a.m. instead
of 8:00 a.m.
In a subsequent visit on June 16, 1997, Dr. Seltzer
concluded that Conneen’s depression was in partial
remission, and by October 28, 1997, Dr. Seltzer concluded
that Conneen was “doing well.” Nevertheless, sometime in
1997, Conneen was allowed to begin reporting to work at
9:00 a.m. and working until 6:00 p.m. rather than working
from 8.00 a.m. to 5:00 a.m. However, in spite of this
further accommodation, Conneen’s punctuality was
“substandard,” sometimes arriving as late as 9:30 a.m. On
November 4, 1997, MBNA gave Conneen a “final warning”
because she had reported to work intoxicated two days
earlier. In that warning, MBNA warned Conneen that she
would be terminated for any further misconduct.
Conneen next visited Dr. Seltzer on January 20, 1998,
and the doctor noted that she had been “doing well for six
months.” Nevertheless, the doctor decided against altering
Conneen’s dose of Effexor because she was then struggling
through divorce proceedings and the doctor was concerned
about the impact of those proceedings on Conneen’s
depression.
On January 30, 1998, Conneen met with her new
manager at MBNA, Rose Behm, to discuss her schedule.
Behm did not know that Conneen had an adjusted
schedule nor was she aware of Conneen’s history of
depression or morning sedation resulting from her
medication. Conneen told Behm that her schedule had
been adjusted to allow her to start work an hour later, but
she did suggest that the adjustment was related to an
accommodation for a medical condition. Behm asked
Conneen if anything prevented her from returning to a
normal 8:00 a.m. to 5:00 p.m. schedule. Despite the
problems Conneen was continuing to have with
punctuality, she assured Behm that there was no reason
she could not resume reporting to work at 8:00 a.m. and
working until 5:00 p.m. Conneen did not request
continuation of the accommodation of a later starting time,
5
nor did she give Behm any reason to believe that an
accommodation may be necessary.
Accordingly, Conneen began reporting to work at 8:00
a.m. on February 9, 1998. However, Conneen’s tardiness
soon resurfaced and she was late for work on February 18,
19, 20, and 24, 1998. On February 24, 1998, Conneen’s
acting supervisor, Anne Casey,3 and Fran Hahn, Casey’s
supervisor, met with Conneen to discuss the recurring
tardiness. During this conversation, Conneen was asked
once again if there was any reason why she (Conneen) was
unable to report to work on time, and she once again said
there was no reason she could not do so. Conneen was
then warned that “continued excessive, unexcused
tardiness would not be tolerated,” Appellee’s Br. at 6, and
Conneen agreed to be on time in the future.
Despite that promise of punctuality, less than a week
went by before Conneen was again late for work. She
reported late on February 26 and 27 as well as March 2, 3,
4, and 5, 1998. On March 6, 1998, Conneen again met with
Hahn, Casey, and Catherine Willey, a representative from
MBNA’s Personnel Department. At that meeting, Conneen
was told that her continued tardiness could result in
dismissal. Conneen then informed them for the first time
that she had a medical condition that caused her to be late,
and that she could provide documentation from her
physician to justify her need for an accommodation.
Conneen’s managers requested the offered documentation
and Conneen asked Dr. Seltzer to supply it.
In response to Conneen’s request, Dr. Seltzer drafted a
letter to MBNA in which he stated: “because of Ms.
Conneen’s condition, she will be generally unable to begin
work before 9:00 a.m.” App. at B3, B122. Based upon that
documentation, MBNA allowed Conneen to work from 9:00
a.m. to 6:00 p.m. each day.
However, inasmuch as there was some question as to
how long Conneen would need that accommodation, Nurse
Patricia Peterson obtained Conneen’s permission to contact
3. Ms. Behm, Conneen’s actual supervisor, was on maternity leave
during this time.
6
Dr. Seltzer on behalf of MBNA to determine when Conneen
could resume a regular schedule.4 Nurse Peterson
subsequently testified that, based upon the ensuing
conversation with Dr. Seltzer on April 7, she concluded that
Conneen’s morning sedation was a temporary reaction to
medication, that the dosage would be corrected, and that
Conneen would be able to resume her regular schedule in
a couple of weeks.5
Dr. Seltzer also filled out an MBNA disability form in
response to Nurse Peterson’s request for documentation to
support affording Conneen a later starting time. On the
form, Dr. Seltzer described Conneen as suffering from
“dysphoria.” Dr. Seltzer did not, however, suggest that an
adjusted schedule was necessary, nor did he affirm that
Conneen’s condition or medication interfered with her
getting to work on time.
As a result of Nurse Peterson’s conversation with Dr.
Seltzer, Casey advised Conneen that she could continue to
report to work at 9:00 a.m. through April 22, 1998, but
that she must thereafter resume reporting at 8:00 a.m.
Conneen testified at her deposition that she relied on Nurse
Peterson’s description of the contents of her conversation
with Dr. Seltzer. However, Conneen also testified that she
did tell Nurse Peterson that she was not comfortable with
the change, and that she disagreed with the decision to
remove the accommodation of an hour extra to report for
4. Dr. Seltzer testified at his deposition that he intended to allow
Conneen to arrive at 9:00 temporarily, not permanently.
5. The precise content of Nurse Peterson’s April 7 discussion with Dr.
Seltzer is disputed. In his deposition, Dr. Seltzer denied that he told
Nurse Peterson or anyone else at MBNA that Conneen would be able to
return to work at 8:00. Dr. Seltzer testified that he was certain of this
because he never allows a patient to have her schedule modified without
first seeing and speaking with the patient. However, Dr. Seltzer also
testified that Nurse Peterson’s notes of their conversation corroborated
her recollection of the conversation and that Conneen returning to the
earlier schedule in two weeks “made sense medically,” because two
weeks is a reasonable time to adjust to a change in medication.
Moreover, Dr. Seltzer stated in his affidavit, “if the nurse said that she
spoke with me on that date, . . . I had no reason to doubt it.” App. at
A36, B126-7.
7
work in the morning. Conneen nevertheless asserts that
she felt that she had no alternative but to begin working at
8:00 as Peterson requested. Nevertheless, despite being
allowed to report at 9:00 a.m. for a few more weeks,
Conneen showed up for work after 9:00 a.m. on April 17.6
On April 24, Casey and Willey met with Conneen yet
again to remind her that she was to begin work at 8:00
starting on April 27, and Conneen agreed to resume
starting at 8:00 a.m. She did not request continuation of
the accommodation of the later start time of 9:00 a.m.
Conneen explains her failure to ask for continuation of the
accommodation at this meeting by arguing that she did not
feel comfortable discussing her medical situation with her
manager or anyone from the personnel department at
MBNA. Appellant’s Br. at 9. However, it is uncontested that
she also failed to thereafter ask Dr. Seltzer to contact
MBNA on her behalf or to suggest that Nurse Peterson have
another conversation with Dr. Seltzer to confirm that she
was ready to resume reporting to work at 8:00 a.m. Rather
than attempting to have MBNA continue an adjusted work
schedule or contact Dr. Seltzer before making a final
decision in that regard, Conneen agreed to the resumption
of her 8:00 a.m. to 5:00 p.m. schedule and assured Casey
and Willey that she would be punctual.
However, Conneen’s history was a more accurate
predictor of her future performance than those assurances
were. Despite the assurances of punctuality, Conneen
arrived late on April 27, 28, and 29 as well as May 1, 1998.
On May 1, Willey urged Conneen to speak with Nurse
Peterson. Conneen did meet with Nurse Peterson and the
two discussed Conneen’s adjustment to her medication as
well as concerns about Conneen’s punctuality. During that
meeting Conneen again failed to even suggest that her
tardiness might be related to her medication or history of
depression. Moreover, despite that meeting, Conneen’s
pattern of late arrivals continued and she was late for work
again on May 6, 8, and 11, 1998.
6. Conneen does not suggest that she needed more than an extra hour
to report for work in the morning.
8
On May 15, Conneen and Willey met and Willey offered
Conneen a brief leave of absence with pay so that Conneen
could consider whether she wanted to continue working as
an officer at MBNA. Willey also offered Conneen the
opportunity to transfer to a non-officer, non-manager
position, which would have allowed her to work a different
schedule. Finally, Willey told Conneen that in lieu of
termination, she would accept her resignation if Conneen
wished to pursue that path. On May 18, 1998, Conneen
rejected each of those alternatives and told Willey that she
would be on time each day.
Following that meeting, Conneen did begin to report for
work on time, but her punctuality was again short lived.
After reporting punctually at 8:00 a.m. for almost a full
month, she lapsed back into tardiness and was late on
June 16, 17, 18, and 22. Willey met with her once again on
June 23 to discuss the situation. Amazingly, given her
current claims under the ADA, Conneen still refrained from
suggesting a link between her medication and her tardiness
at the June 23 meeting despite warnings of termination and
offers to accept her resignation. Conneen still requested no
further accommodation. Rather than suggest a medicinal
reason for her behavior or attempt to involve her treating
physician, she attempted to explain her most recent
tardiness by claiming: she had been “stuck in traffic,” her
dog “made a mess,” and that she needed to give her mother
a ride one day.7
On June 25, 1998, MBNA finally terminated Conneen for
her excessive tardiness. Immediately following her
termination, Conneen contacted Dr. Seltzer, who informed
her that he had never told Nurse Peterson that Conneen
was ready to begin working at 8:00 a.m. Shortly after that
contact with Conneen, Dr. Seltzer wrote a letter to MBNA in
which he stated that Conneen needed to be allowed to
arrive late for work because of her condition and asking
MBNA to reinstate her.8
7. She later admitted that each of the excuses was a lie.
8. On January 14, 2000, MBNA in-house counsel, Omar McNeill, and
Nurse Peterson contacted Dr. Seltzer to discuss his April 1998
conversation with Nurse Peterson. During that conversation, Peterson
9
II. PROCEDURAL HISTORY
Conneen subsequently filed this civil action against
MBNA in the United States District Court for the District of
Delaware. In the first count of her complaint she alleges
that MBNA violated the ADA by “withdrawing from the
previously granted accommodation which permitted her to
report to work one hour later than other managers.”
Conneen v. MBNA Am. Bank, 182 F. Supp. 2d 370, 373 (D.
Del. 2002). In the second count she alleges that MBNA
breached its duty of good faith and fair dealing under
Delaware law.
The district court granted MBNA’s motion for summary
judgment and dismissed both claims. The court held that
MBNA did not “fail to accommodate Conneen because it did
not have notice of her disability at the relevant time.” Id. at
377. The court also held that reporting to work at 8:00 a.m.
was an essential function of Conneen’s job. Accordingly, the
court concluded that Conneen could not establish a prima
facie case of disability discrimination since she “could not
perform the essential functions of her job with
accommodation,” id., and she was therefore not protected
under the ADA. The court also rejected Conneen’s assertion
that MBNA had acted in bad faith. This appeal followed.
In addition to appealing the aforementioned rulings,
Conneen argues that the district court’s finding that Dr.
Seltzer authorized resumption of the 8:00 a.m. schedule
was error because the Unemployment Insurance Appeal
Board had reached a contrary conclusion and the court
was therefore collaterally estopped from reaching a different
factual conclusion.
and McNeill formed the impression that Dr. Seltzer had indeed approved
Conneen’s return to her 8:00 starting time. McNeill sent Dr. Seltzer a
letter confirming that understanding and Dr. Seltzer verified the
accuracy of it with a handwritten note.
Conneen later produced an affidavit in which Dr. Seltzer alleged that
he found several inaccuracies in McNeill’s letter after he signed and
verified it. In the affidavit, Dr. Seltzer reiterated that he never told MBNA
that Conneen was ready to begin working at 8:00 a.m.
10
III. DISCUSSION9
A. The ADA Claims
Conneen first claims that MBNA’s withdrawal of the
accommodation of allowing her to start work an hour later
was unreasonable. She argues that the continuing effects of
her medication made it exceedingly difficult to consistently
report for work at 8:00 a.m. and insists that she could have
performed the essential functions of her job had MBNA
continued allowing her to report for work at 9:00 a.m.
An employer commits unlawful disability discrimination
under the ADA if he/she “does not mak[e] reasonable
accommodations to the known physical or mental
limitations of an [employee who is an] otherwise qualified
individual with a disability. . . .” 42 U.S.C. § 12112(b)(5)(A);
Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 311 (3d Cir.
1999). Here, MBNA does not contest that Conneen suffered
from a disability, nor that it was aware of the disability.
Indeed, MBNA accommodated that disability for some time.
“Rather, the dispute centers around whether Conneen
voiced her desire for further accommodation to MBNA after
the initial accommodation.” Conneen, 182 F. Supp. 2d at
377. Put another way, the issue before us is whether the
breakdown in the interactive process required under the
ADA is attributable to MBNA or Conneen. Before resolving
that question, however, we must first determine if reporting
to work at 8:00 a.m. was an essential function of Conneen’s
job. As noted, the ADA prohibits discrimination against one
who is a “qualified individual with a disability.” 42 U.S.C.
§ 12112(a). A qualified individual with a disability is defined
as a person “with a disability who, with or without
9. Our review of the district court’s decision to grant summary judgment
is plenary. Summary judgment should be affirmed if there is “no genuine
issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986). We must examine the evidence in the light most favorable
to the nonmoving party, Conneen, and resolve all reasonable inferences
in her favor. Stewart v. Rutgers, 120 F.3d 426, 431 (3d Cir. 1997). In
employment discrimination cases, the summary judgment standard is
“applied with added rigor” because “intent and credibility are crucial
issues.” Id. (quoting Robinson v. PPG Indus. Inc., 23 F.3d 1159, 1162
(7th Cir. 1994)).
11
reasonable accommodation, can perform the essential
functions of the employment position that such individual
holds or desires.” 42 U.S.C. § 12111(8). MBNA argues that
Conneen cannot recover under the ADA because starting
work at 8:00 a.m. was an essential function of her job. The
district court agreed and concluded that MBNA is therefore
entitled to judgment as a matter of law.
1. Was The Earlier Starting Time An Essential
Function of Conneen’s Job?
In order to establish that a plaintiff is “qualified” under
the ADA, the employee must show that he/she “satisfies
the requisite skill, experience, education and other job-
related requirements of the employment position that such
individual holds or desires.” Skerski v. Time Warner Cable
Co., 257 F.3d 273, 278 (3rd Cir. 2001). If the plaintiff is
able to make that showing, he/she must then establish
that “with or without reasonable accommodation, [he/she]
can perform the essential functions of the position held or
sought.” Id. MBNA does not contest that Conneen
possesses the requisite “skill, experience, education,” her
job requires or that she has the ability to satisfactorily
perform her duties. Rather, as noted above, MBNA insists
that reporting for work is an essential component of
Conneen’s job, and her inability to do that on a consistent
basis renders her unqualified for the managerial position
she claims she is entitled to. However, we disagree with
that position and conclude that the district court erred in
accepting it.
“Essential functions” must be “fundamental” to one’s job
and not simply “marginal.” Skerski, 257 F.3d at 279(quoting 29 C.F.R. § 1630.2(n)(1)). The inquiry into whether
a job requirement is essential to one’s job “is a factual
determination that must be made on a case by case basis
[based upon] all relevant evidence.” Deane v. Pocono Med.
Ctr., 142 F.3d 138, 148 (3rd Cir. 1998) (en banc)) (quoting
29 C.F.R. pt. 1630, app. § 1630.2(n)). Relevant evidence
may include, but is certainly not limited to, “ ‘the
employer’s judgment as to which functions are essential’
and ‘written job descriptions prepared before advertising or
interviewing applicants for the job.’ ” Id. However, the
12
employee’s actual experience is also relevant to the inquiry.
Skerski, 257 F.3d at 281.
The plaintiff in Deane was a nurse who was unable to lift
heavy weights because of a work related injury. The
employer/hospital claimed that lifting heavy objects was an
essential function of Deane’s job as evidenced by the job
description. That job description included “frequent lifting
of patients” as one of the “major tasks, duties and
responsibilities” of a nurse in Deane’s position. Deane, 142
F.3d at 148. Deane admitted that lifting heavy objects,
including patients, was a “critical job demand[ ],” and the
hospital insisted that a “nurse’s inability to lift patients”
could create a dangerous situation for Deane’s patients. Id.Deane countered the hospital’s claim of job necessity
with a vocational expert who asserted that heavy lifting was
not one of the “four critical tasks” for nurses under the
Department of Labor’s Dictionary of Occupational Titles Job
Descriptions. 142 F.3d at 147. The expert drew a
distinction between nurses who did not need to lift
patients, and orderlies who did. The latter are classified as
“heavy-duty labor.” Id. The expert criticized the hospital’s
job description to the contrary for incorrectly characterizing
the lifting requirements for nurses. Deane’s expert insisted
that nurses are required to lift much less frequently than
the hospital’s job description suggested. Id. Despite the
intuitive appeal of the hospital’s argument, we concluded
that the factual question remained for the jury. Id. at 148.
The employer in Skerski also made an argument that had
superficial appeal. There, plaintiff was employed by Time
Warner to service cables, wires, and aerial cable plants
Time Warner maintained as part of its cable television
service. This required both climbing poles and working at
heights. After approximately ten years on the job, Skerski
was diagnosed with panic and anxiety disorder, and his
doctor recommended that he stop climbing and working at
heights. 257 F.3d at 276. Thereafter, Skerski asked his
supervisor to provide him with a bucket truck so that he
could continue working at heights, but the supervisor
claimed that the company did not have any. Id.10 The
10. There was some discrepancy about whether the company had a
bucket truck or not. Skerski claimed the company had an old one that
13
employer did offer to retrain Skerski to allow him to “re-
acquire the climbing skills necessary to continue his job as
a technician,” but the training program abruptly stopped
without explanation after Skerski’s doctor confirmed that
Skerski’s incapacitating anxiety prevented him from
working at heights. Id. at 277. Skerski eventually accepted
another position with the company at a significantly lower
salary while expressing a desire to continue doing
underground repair work as he had since the onset of his
anxiety disorder. Id. Skerski subsequently injured his back
and began receiving workers’ compensation benefits, and
thereafter filed suit under the ADA to recover money
damages and reinstatement to his “ ‘modified duty status’
as an installer technician.” Id.The district court granted Time Warner’s motion for
summary judgment even though it found a genuine issue of
material fact as to whether Skerski was disabled and
whether the alternative position he was offered constituted
a reasonable accommodation under the ADA. Id. The court
reasoned that “climbing was an essential function of the
installer technician’s job that Skerski could not perform
. . . .” Id. Accordingly, the court held that Time Warner was
entitled to judgment as a matter of law because Skerski
was not “an otherwise qualified individual” under the ADA
and therefore could not establish a prima facie case for
disability discrimination. Id. We reversed.
After discussing the definition of “essential functions” set
forth in 29 C.F.R. § 1630.2(N)(1), we stated:
[t]he regulations list several factors for consideration in
distinguishing the fundamental job functions from the
marginal job functions, including: (1) whether the
performance of the function is the reason the position
exists; (2) whether there are a limited number of
employees available among whom the performance of
that job function can be distributed; and (3) whether
could have been made available to him, but his supervisor denied that.
The supervisor also insisted that Skerski had to be “100%” to continue
working at heights. 257 F.3d at 277.
14
the function is highly specialized so that the incumbent
in the position is hired for his or her expertise.
257 F.3d at 279 (internal quotation marks omitted). We
also noted the non-exhaustive list of examples of probative
evidence set forth in the regulations. Id. That evidence
includes:
(I) The employer’s judgment as to which functions are
essential;
(ii) Written job descriptions prepared before advertising
or interviewing applicants for the job;
(iii) The amount of time spent on the job performing the
function;
(iv) The consequences of not requiring the incumbent
to perform the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the
jobs; and/or
(vii) The current work experience of incumbents in
similar jobs.
Id. (citing 29 C.F.R. § 1630.2(n)(3)).
After analyzing the evidence submitted by Skerski and
Time Warner in context with the aforementioned
regulations, we concluded that a genuine issue of material
fact remained as to whether climbing was an essential job
function for a cable installer. In doing so, we did not ignore
Time Warner’s claim that it was an essential function, nor
the fact that the written job description identified climbing
as a job requirement. However, neither did we ignore
Skerski’s testimony that his own experience suggested that
he had been able to satisfactorily perform as a cable
installer even though he had not been able to climb for
three years. We reasoned: “consideration of the seven
evidentiary examples included in § 1630.2(n)(3) suggests
caution against any premature determination on essential
functions as at least some of them lean in Skerski’s favor.”
257 F.3d at 280. Here, of course, MBNA’s assertion that an
8:00 a.m. start time is an essential function of the job is
15
substantially weaker than Time Warner’s position in
Skerski, or the hospital’s position in Deane.
Here, MBNA rests its claim of the importance of
punctuality largely upon the need for its officers to set an
example by coming to work “on time.” It can hardly be
seriously doubted that an employer has a right to expect its
managerial employees to set an example for other
employees. MBNA thus argues that “the responsibility of
showing an example is an essential function.” Appellee’s Br.
at 34. However, that argument can attach with equal force
to any one of numerous aspects of a bank officer’s job that
an employer might justifiably want employees to emulate. It
could include a requirement that male managers wear
business suits and ties. Though such examples may be
justifiable from the employer’s point of view, even important
to the professional atmosphere and decorum that is largely
defined by the conduct of managers, that hardly elevates
such preferences to fundamental functions. Absent more
than appears on this record, we are not prepared to
conclude that beginning work at 8:00 a.m. as opposed to
9:00 a.m. is an essential job function. That is especially
true here as MBNA does not suggest that Conneen did not
perform her job satisfactorily once she did arrive, or that
MBNA’s business was injured by the extra hour it gave her
to report for work during the period of the accommodation.
MBNA cites Earl v. Mervyns Inc., 207 F.3d 1361 (11th
Cir. 2000) to support its assertion that setting an example
can be an essential job function. However, there the
employee was charged with opening a department in a
small retail store. Earl, 207 F.3d at 1366. Obviously,
customers will go elsewhere and sales will be lost if a retail
establishment (especially one as small as the defendant in
Earl) cannot open according to its posted hours.
Accordingly, an employer in those circumstances may be
able to establish that punctuality is essential to the
employee’s job.
However, Conneen’s situation is in no way analogous to
that. Nor are we persuaded that allowing flexibility in an
officer’s starting times “ignores the wishes of the employer
and sends a message to all employees that starting work at
16
the prescribed time does not matter, as long as you get
your work done,” as MBNA argues. Appellee’s Br. at 34.11
MBNA has every right to require its employees to start
work “at the prescribed time.” Id. That is not the issue here.
Rather, the issue is whether MBNA can define an essential
job function for an employee in a managerial position in an
office setting with nothing more to substantiate the
importance of that requirement than a desire that a
manager set a good example. We can find nothing on this
record beyond MBNA’s own ipse dixit to suggest that
Conneen’s delayed starting time injured MBNA or interfered
with Conneen doing her job.
MBNA’s argument that it “explained to Conneen that
because she was employed as an officer she was required to
start work at 8:00 a.m,” is relevant to our inquiry, but not
determinative. Appellee’s Br. at 35. “Describing
[punctuality] as a requirement is not necessarily the same
as denominating [punctuality] is an essential function.”
Skerski, 257 F.3d at 280.12
Although there clearly may be some situations where an
employee’s starting time cannot be altered because it is an
essential function of the job, nothing on this record leads
us to conclude that to be the case here. Accordingly, we
hold that the district court erred in concluding that
Conneen was not a “qualified individual” under the ADA
because she could not perform an essential job function.
11. MBNA’s insistence that managers arrive on time to set an example
also ignores the rather obvious fact that Conneen would demonstrate
punctuality as long as she consistently arrived at work promptly before
her designated starting time even if the starting time was 9:00.
12. Ironically, Conneen concedes that punctuality and attendance are
essential functions of any position of employment. She states that she
“believe[s] that attendance and punctuality are essential functions of any
position.” See Appellant’s Br. at 29. However, she claims that the issues
here “do not involve attendance and punctuality.” Id. In spite of this
concession, Conneen goes on to argue that “changing of the work time
by one hour was not an essential function for the position.” Id. at 32. We
interpret this to mean that she does not concede that it was essential for
her to report at 8:00 as opposed to 9:00 a.m. insofar as an analysis of
“essential job functions” under the ADA is concerned.
17
She presented sufficient evidence to establish that she was
a qualified individual under the ADA despite her tardiness.
Nevertheless, we hold that the district court correctly
entered summary judgment in favor of MBNA and against
Conneen because Conneen is responsible for the
breakdown of the interactive process required under the
ADA.
2. The Interactive Process
“The ADA itself does not refer to [an] ‘interactive
process.’ ” Shapiro v. Township of Lakewood, 292 F.3d 356,
359 (3d Cir. 2002). Rather, the text of the ADA requires
only that an employer make a reasonable accommodation
to the known physical or mental disability of a qualified
person with a disability unless the employer can show that
the accommodation would impose an undue hardship on
the employer. 42 U.S.C. § 12112(b)(5)(A). However,
applicable regulations provide that in order “[t]o determine
the appropriate reasonable accommodation it may be
necessary for the [employer] to initiate an informal,
interactive process with the [employee] in need of
accommodation. This process should identify the precise
limitations resulting from the disability and the potential
reasonable accommodations that could overcome those
limitations.” 29 C.F.R. § 1630.2(o)(3).
Similarly, the EEOC’s interpretive guidelines provide
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 both the employer and the
[employee] with a disability.” 29 C.F.R. pt. § 1630, app.
1630.9 at 359.
In Mengine v. Runyon, we held that “both parties have a
duty to assist in the search for an appropriate reasonable
accommodation and to act in good faith.” 114 F.3d 415, 420.13
13. Mengine involved the interactive process implicated under the
Rehabilitation Act, but the discussion applies with equal force to
accommodations under the ADA. See, Taylor v. Phoenixville School
District, 184 F.3d at 312, n.5.
18
In Taylor v. Phoenixville Sch. Dist., we concluded that the
interactive process must include sufficient notice to inform
the employer that an employee is requesting an
accommodation followed by good faith participation of the
employer and employee in that interactive process. 184
F.3d 296, 319-20 (3d Cir. 1999). “[T]he purpose of the
interactive process is to determine the appropriate
accommodations: ‘[t]his process should identify the precise
limitations resulting from the disability and the potential
reasonable accommodations that could overcome those
limitations.’ ” Id. at 316. “When the interactive process
works well, it furthers the purposes of the . . . ADA.”
Mengine, 114 F.3d at 420. It may, in fact, not only lead to
identifying a specific accommodation that will allow a
disabled employee to continue to function as a dignified
and valued employee, it may also help sensitize the
employer to the needs and worth of the disabled person. It
therefore furthers the interest of the employer, and the
dignity and humanity of the disabled employee.
Here, MBNA and Conneen did engage in the interactive
process as required under the ADA. However, not
surprisingly, each side blames the other for the breakdown
in that process. Conneen argues:
Query: Which party was responsible for the breakdown
in the interactive process? The facts are abundantly
clear that the reasonable accommodation requested by
Ms. Conneen had been granted and it was only
through the unilateral actions of the employer that the
accommodation was withdrawn from plaintiff. We
submit that there is no other way to interpret these
facts. The accommodation was there, it was agreed
upon and there was medical support for same.
Appellant’s Br. at 22.
MBNA argues:
While the employer’s duty to accommodate is a
continuing one that is not exhausted by a single effort
alone, the employee still needs to keep her employer
current on her situation. Failure to accommodate
claims are extinguished when, as here, the employee
19
fails to renew a request for an accommodation after
problems resurface.
Appellee’s Br. at 26. In Taylor, we stated that an employee
who tries to hold his/her employer responsible for a
breakdown in the interactive process under the ADA must
show:
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.
Taylor, 184 F.3d at 319-20. Here, MBNA concedes that it
knew of Conneen’s disability, and that Conneen initially
requested an accommodation. However, MBNA claims that
it had no reason to believe that the accommodation it
initially provided was still necessary and that Conneen has
no one other than herself to blame for that. MBNA argues:
Here, all evidence available to MBNA in June 1998
indicated that the alleged disability had ended. MBNA
had returned Conneen to the normal 8 a.m. starting
time and, after some false starts, she was warned, and
proceeded to arrive on time for a month. When she was
again tardy repeatedly and was asked for an
explanation, she said nothing about a medical
condition, even when asked if this was the problem.
Under these circumstances, MBNA acted reasonably in
concluding that no disability issue existed at the time.
Appellee’s Br. at 25-26 (citations omitted). We agree.
Although an employer is liable for discriminating against
an employee in need of accommodation based upon the
employee’s known disability, neither the law nor common
sense can demand clairvoyance of an employer in MBNA’s
position. See 42 U.S.C. § 12112(b)(5)(A) (requiring only
reasonable accommodations to known disability); Beck v.
Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1134 (7th Cir.
1996) (noting initial duty of employee to inform employer of
disability is dictated by “common sense lest a disabled
20
employee keep his disability a secret and sue later for
failure to accommodate.”) Although MBNA clearly knew of
Conneen’s allegedly disabling morning sedation, it had
every reason to believe that the condition no longer existed
at the time of the June 1998 meeting, and Conneen did
nothing to inform MBNA that it did. In fact, through words
and deeds she confirmed and corroborated MBNA’s
conclusion that it did not.
We realize, of course, that there is a dispute of fact about
the exact contents of the April 7 conversation Dr. Seltzer
had with Nurse Peterson regarding the duration of
Conneen’s disability. However, given what is not disputed,
that discrepancy does not rise to the level of a material fact.
Dr. Seltzer’s March 13, 1998 note to MBNA simply states
that Conneen should be allowed to report at a later time
without stating any medical basis for the request. All
parties to this controversy, including Dr. Seltzer, viewed the
accommodation of a later starting time as temporary.
Moreover, even Dr. Seltzer agrees that Nurse Peterson’s
conclusion that the accommodation would only be
necessary for two more weeks following her April 7
discussion with him was medically reasonable. More
importantly, however, when Conneen was asked numerous
times to explain her tardiness after the initial
accommodation was terminated, she never once suggested
a medical problem or medication interfered with arriving at
8:00 a.m. Rather, she assured MBNA that she could report
at 8:00 a.m. and then blamed her failure to do so on traffic,
giving her mother a ride, and her dog’s gastric and/or
urinary distress. Moreover, Conneen was given numerous
chances after initially being warned on March 6, 1998, that
any further tardiness would result in dismissal. Each
warning was accompanied with an opportunity to offer an
explanation that should have opened the door for Conneen
to communicate about her morning sedation or involve Dr.
Seltzer in the discussions.
We realize, of course, that someone with a disability may
be reluctant to discuss it with anyone, particularly his/her
employer. This is especially true where, as here, the
underlying problem implicates one’s mental or emotional
stability. See Taylor, 184 F.3d at 315 (noting that
21
“[d]isabled employees, especially those with psychiatric
disabilities, may have good reasons for not wanting to
reveal unnecessarily every detail of their medical records
. . . the information may be irrelevant . . . and . . . could
be embarrassing, and might actually exacerbate workplace
prejudice.”). However, that does not alter our analysis
under these circumstances.
Although we can envision situations where an employee
would be reluctant to admit to having a disability even if
the employer already knows, Conneen had already given
MBNA permission to speak with her psychiatrist, and she
was aware that the appropriate personnel from MBNA had
spoken to him. Moreover, nothing here suggests that the
work environment was anything other than supportive of
Conneen, and conducive to candid and sensitive discussion
about the underlying cause of her tardiness. MBNA invited
that communication numerous times, and we are less than
persuaded by Conneen’s attempt to charge MBNA for the
fact that she declined the invitations and openings it
afforded her.
The law does not require any formal mechanism or
“magic words,” to notify an employer such as MBNA that an
employee needs an accommodation. Taylor, 184 F.3d at
313. Moreover, as the court noted in Bultemeyer v. Fort
Wayne Cmty. Sch., 100 F.3d 1281, 1285 (7th Cir. 1996),
circumstances will sometimes require “[t]he employer . . . to
meet the employee half-way, and if it appears that the
employee may need an accommodation but doesn’t know
how to ask for it, the employer should do what it can to
help.” However, either by direct communication or other
appropriate means, the employee “must make clear that the
[he/she] wants assistance for his or her disability.” Jones v.
United Parcel Serv., 214 F.3d 402, 408 (3d Cir. 2000). The
employer must have enough information to know of “both
the disability and desire for an accommodation,” Taylor,
184 F.3d at 313, or circumstances must at least be
sufficient to cause a reasonable employer to make
appropriate inquiries about the possible need for an
accommodation.
The quantum of information that will be required will,
therefore, often depend on what the employer already
22
knows. Taylor, 184 F.3d at 313. However, nothing that
MBNA knew here suggested that Conneen was still
suffering from the effects of her medication. She told MBNA
that she was not, and MBNA is not to be faulted for taking
her at her word under these circumstances.14
Despite MBNA’s prior knowledge of Conneen’s morning
sedation, the interactive process requires an employee in
her position to do something more than proffer excuses of
heavy traffic, giving a parent a ride, or cleaning up after a
pet when asked to explain tardiness. This is especially true
given the repeated warnings MBNA had given Conneen.15
After being given repeated chances and offering repeated
assurances of punctuality, Conneen was on time for nearly
a month before she was finally terminated. MBNA cannot
be held liable for failing to read Conneen’s tea leaves.
Conneen had an obligation to truthfully communicate any
need for an accommodation, or to have her doctor do so on
her behalf if she was too embarrassed to respond to
MBNA’s many inquiries into any reason she may have had
for continuing to be late.
As we have noted here and elsewhere many times,
both the employer and the employee have a duty to act in
good faith once the interactive process begins. Taylor, 184
F.3d at 312 (quoting Mengine, 114 F.3d 415, 419-20 (3d
Cir. 1997)). “All the interactive process requires is that
employers make a good-faith effort to seek
accommodations.” Id. at 317.
14. Cf. Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 163-64 (5th
Cir. 1996) (where employee only asked employer to reduce workload,
employee failed to provide evidence that employer knew of limitations
arising out of disability); Taylor v. Phoenixville Sch. Dist., 184 F.3d at
313-14 (employee’s psychotic episode at work coupled with employer’s
plan to discuss situation with employee’s doctor was sufficient to trigger
employer’s obligation to engage in interactive process).
15. It must be remembered that the pattern of tardiness here included
Conneen’s reporting for work late and inebriated on one occasion.
Nothing suggests that her apparent inebriation was in any way related
to her medication or that MBNA had reason to suspect a medical cause
for that behavior.
23
The district court’s analysis of MBNA’s good faith is very
instructive and merits quoting at length. The court stated:
Although the court can understand her reluctance to
share every detail of her illness, three factors weigh
heavily against Conneen.
First, [she] had previously requested—and was granted
—accommodation on at least three occasions.
Therefore, she knew what needed to be done in order
receive accommodation. For example, in March 1998,
when Conneen was told to provide medical
documentation of her condition in order to be granted
accommodation, she immediately contacted Dr. Seltzer
and obtained a medical excuse. However, once MBNA
threatened to withdraw the accommodation, Conneen
remained silent. Conneen never contacted Dr. Seltzer,
and never notified the MBNA health staff of her
condition. Although Conneen argues that she relied on
Nurse Peterson’s statements regarding Dr. Seltzer’s
opinion, the record fails to reveal any explanation as to
why—if Conneen disagreed with these purported
statements—she did not immediately contact Dr.
Seltzer for clarification. . . . [Conneen] cannot
reasonably expect that MBNA was required to obtain
the medical information necessary for her
accommodation on its own volition.
The second factor that weighs against Conneen is the
fact that all parties—including Dr. Seltzer—understood
that the initial accommodation was temporary.
Conneen was thus on notice that at some point in
time, if her problems continued, she would have to go
back to MBNA and provide further documentation.
Nevertheless, she failed to take the steps necessary to
notify MBNA that she required further assistance.
The final factor that causes the court to find that
Conneen was the party that acted in bad faith is the
fact that not only did she fail to communicate, she
affirmatively misrepresented her situation, thus
thwarting MBNA’s attempts to learn about her
condition. . . .
24
Conneen, 182 F. Supp. 2d at 380 (citations omitted). The
court also noted the following undisputed evidence
supported MBNA’s good faith:
First, when Conneen presented documentation to
MBNA in March 1998, she was immediately
accommodated. Second, MBNA did not withdraw any
accommodations without Conneen’s knowledge or
consent. For example, MBNA only terminated
Conneen’s accommodation in February 1998 after she
assured her supervisors that she was able to report on
time. Third, even after the accommodations were
withdrawn, MBNA always provided Conneen with time
to adjust, rather than making the changes effective
immediately. Fourth and most important, MBNA’s
supervisory and medical staff met with Conneen on
multiple occasions in an attempt to encourage her to
discuss any medical reasons for her tardiness. The
defendant even offered her another position with a
schedule more conducive to her needs.
Id. (citations omitted). Finally, the district court concluded
that “MBNA acted with patience and prudence in this
situation, given the information available to it at the time.”
Id. at 381. We agree. On this record, we can confidently
conclude as a matter of law that MBNA made a good faith
effort to engage in the interactive process and assist
Conneen with her frequent tardiness, and no reasonable
juror could conclude otherwise.
B. The Implied Covenant of Good Faith and Fair
Dealing
Next, Conneen alleges that MBNA breached its implied
covenant of good faith and fair dealing under Delaware law.
Delaware courts have been reluctant to recognize a broad
application of this covenant out of concern that the implied
covenant of good faith and fair dealing could swallow the
doctrine of employment at will. E.I. Dupont de Nemours &
Co. v. Pressman, 679 A.2d 436, 442 (Del. 1996). While
employment at will remains a strong presumption, the
Delaware Supreme Court has recognized the limited
application of the covenant to an at-will employment
25
contract. Id. at 440 (citing Merrill v. Crothall-American, Inc.,
606 A.2d 96 (Del. Super. Ct. 1992)).
Accordingly, Delaware law recognizes four situations
where a breach of the implied covenant of good faith and
fair dealing may occur in an at-will employment situation:
(I) where the termination violated public policy;
(ii) where the employer misrepresented an important
fact and the employee relied thereon either to accept a
new position or remain in a present one;
(iii) where the employer used its superior bargaining
power to deprive an employee of clearly identifiable
compensation related to the employee’s past service;
and
(iv) where the employer falsified or manipulated
employment records to create fictitious grounds for
termination.
Lord v. Souder, 748 A.2d 393, 400 (Del. 2000) (citing
Pressman, 679 A.2d at 442-44). Conneen alleges that
MBNA breached its implied covenant of good faith and fair
dealing on grounds (I), (ii), and (iv) above. Appellant’s Br. at
34-6.
Given the preceding discussion of Conneen’s
responsibility for the breakdown in the interactive process,
and MBNA’s good faith, we need not even respond to her
attempt to rely upon grounds (I) or (ii), and we need only
offer brief discussion of her attempt to establish liability
under ground (iv). That latter claim rests upon Conneen’s
allegation that “Nurse Peterson falsely stated the opinion of
Dr. Seltzer with regard to plaintiff ’s prospective change in
her work schedule.” Appellant’s Br. at 36. She insists that
Dr. Seltzer never told Nurse Peterson that she could resume
her normal work schedule at 8:00 a.m. However, even if we
assume that Dr. Seltzer did not specifically tell Nurse
Peterson that Conneen could begin reporting to work at
8:00 a.m., it is clear from Dr. Seltzer’s own testimony that
Conneen can establish, at best, a misunderstanding on the
part of Nurse Peterson regarding the April 7 conversation.
Moreover, given Dr. Seltzer’s further testimony that Nurse
Peterson’s conclusion was not unreasonable, Conneen
26
cannot elevate that misunderstanding into a deliberate
attempt to falsify records even under the deferential
summary judgment standard that we must apply to that
“dispute.” As noted above, no one from MBNA contacted Dr.
Seltzer without Conneen’s prior consent, and the record
does not support Conneen’s attempts to impute nefarious
motives to Nurse Peterson or anyone else at MBNA.16
IV. CONCLUSION
For the reasons set forth above, we will affirm the district
court’s grant of summary judgment in favor of MBNA
America Bank.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
16. We do not reach Conneen’s claim that MBNA is collaterally estopped
from litigating the precise contents of Dr. Seltzer’s April 7 conversation
with Nurse Peterson because we agree with the district court’s
conclusion that it is irrelevant. Even if we view that conversation in the
light most favorable to Conneen, as we must when reviewing summary
judgment, we would still be left with Conneen’s failure to engage in the
interactive process for months after that conversation. Moreover, despite
Conneen’s view of that conversation, it is undisputed that Dr. Seltzer
testified that Nurse Peterson’s recollection of the conversation was not
unreasonable. This combined with the information that Dr. Seltzer had
initially put on Conneen’s disability form clearly supports MBNA’s
conclusion that Conneen’s disability was a temporary reaction to
medication. In fact, Dr. Seltzer’s testimony is not to the contrary. Thus,
the dispute about the content of the April conversation is hardly fatal to
MBNA’s summary judgment.