O'Dell v. Department of Public Welfare

Full title: MICHAEL A. O'DELL Plaintiff, v. DEPARTMENT OF PUBLIC WELFARE OF THE…

Court: United States District Court, W.D. Pennsylvania

Date published: Nov 10, 2004

Civil Action No. 3:02-130J (W.D. Pa. Nov. 10, 2004)

Opinion

Civil Action No. 3:02-130J.

November 10, 2004

MEMORANDUM OPINION AND ORDER

KIM R. GIBSON, District Judge

This case comes before the Court on Defendant's Motion for Reconsideration (Document No. 55). Upon careful consideration of Defendant's Motion for Reconsideration, the Plaintiff's Brief in Opposition to the Defendant's Motion for Reconsideration (Document No. 58), and the record of the case sub judice, the Court denies the Defendant's motion for the following reasons.

JURISDICTION AND VENUE

Jurisdiction is proper in the Western District of Pennsylvania pursuant to 28 U.S.C. §§ 1331 and 1343, and pursuant to 42 U.S.C. § 12133. The Plaintiff's claims are authorized by 28 U.S.C. §§ 2201- 2202, 42 U.S.C. § 12133, and 29 U.S.C. § 794a. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 as the events which gave rise to this Complaint occurred in this judicial district.

PROCEDURAL BACKGROUND

In this Court's Memorandum Opinion and Order, dated September 28, 2004, the Court denied the Defendant's Motion for Summary Judgment (Document No. 35). Because the parties are familiar with the facts underlying this matter, the Court recounts only a brief procedural history.

On November 4, 2004, the Defendant filed a Motion for Reconsideration of this Court's Memorandum Opinion and Order dated September 28, 2004, which denied the Defendant's Motion for Summary Judgment (Document No. 55).

On November 9, 2004, the Plaintiff filed a Brief in Opposition to the Defendant's Motion for Reconsideration (Document No. 58).

DISCUSSION

Essentially, the Court notes that what the Defendant actually seeks by the Motion for Reconsideration is another bite at the summary judgment apple. For example, the following argument has been presented by the Defendant in its Motion for Reconsideration, which was already alluded to in its Motion for Summary Judgment: whether the Plaintiff is precluded from asserting a violation of Section 504 of the Rehabilitation Act when the Plaintiff was ultimately accommodated. Accordingly, the Court addresses the Defendant's argument and the procedural rule through which it is raised.

Motion for Reconsideration and Federal Rule of Civil Procedure 60(b)(6) ¹

1 The Defendant readily concedes that the present procedural posture of the case sub judice precludes a motion for reconsideration pursuant to Fed.R.Civ.P. 59(e), as such motion is untimely. (Document No. 55). Specifically, Rule 59(e) requires that a party must move a court to alter or amend its judgment no later than ten days after the entry of judgment. In the case sub judice, more than ten days have passed from this Court's Memorandum Opinion and Order dated September 28, 2004 denying Defendant's Motion for Summary Judgment. Accordingly, the Court proceeds in its analysis of Defendant's Motion for Reconsideration under Rule 60(b).

Rule 60(b) provides: "On motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding for . . . any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time. . . ." Fed.R.Civ.P. 60(b)(6). In determining whether to grant relief pursuant to Rule 60(b)(6), the Supreme Court in Klapprott v. United States, 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266 (1949) has held that Rule 60(b)(6) authorizes a district court to vacate a judgment whenever such action is appropriate to accomplish justice. See also Neal v. Ridge, 1995 WL 728589, *1 (E.D. Pa. 1995). The Third Circuit has also determined that Rule 60(b)(6) "is a grand reservoir of equitable power to do justice in a particular case." Martinez-McBean v. Government of the Virgin Islands, 562 F.2d 908, 911 (3d Cir. 1977) (quoting 7 J. Moore, Federal Practice ¶ 60.27[2], at 375 (2d ed. 1975)) (quoted in Davidson v. U.S., 1998 WL 314706, *2 (E.D. Pa. 1998)). Thus, in deciding whether to grant a Rule 60 motion, a district court must "strike a proper balance between the conflicting principles that litigation must be brought to an end and that justice must be done." Boughner v. Secretary of Health, Education and Welfare, 572 F.2d 976, 977 (3d Cir. 1978) (quoted in Davidson, 1998 WL at *2). For example, in Smith v. Holtz, 879 F.Supp. 435, 439 (M.D. Pa. 1995), the Middle District Court of Pennsylvania determined that granting a Rule 60 motion is justified in order "to afford the District Court an opportunity to correct plain errors and avoid . . . needless delay." Quoted in Davidson, 1995 WL at *2. "Other circuits have stated that supervening clarifications of controlling law by another court can afford sufficient basis for granting a Rule 60(b) motion." Davidson, 1995 WL at *2; see Adams v. Merrill Lynch, 888 F.2d 696 (10^th Cir. 1989); Cox v. Wyrick, 873 F.2d 200 (8^th Cir. 1989); Ritter v. Smith, 811 F.2d 1398, 1401 (11^th Cir.), cert. denied, 483 U.S. 1010, 107 S.Ct. 3242, 97 L.Ed.2d 747 (1987); but see Coltec Industries, Inc. v. Hobgood, 184 F.R.D. 60 (W.D. Pa. 1999) (district court held that ruling declaring statute unconstitutional did not constitute extraordinary circumstance warranting relief). Ultimately, a decision to vacate judgment should only be exercised in extraordinary circumstances. Ackermann v. United States, 340 U.S. 193, 71 S.Ct. 209, 95 L.Ed. 207 (1950); Stradley v. Cortez, 518 F.2d 488, 493 (3d Cir. 1975) (Third Circuit held that "Rule 60(b)(6) is available only in cases evidencing extraordinary circumstances").

Although this Court denies the relief requested in the Defendant's Motion for Reconsideration filed pursuant to Rule 60(b)(6), the Court determines that based upon the need for clarification of controlling law and based upon the principles of judicial economy, the Court takes this opportunity to avoid needless delay during the litigation process by addressing several of the Defendant's legal arguments presented in the Motion for Reconsideration.

A. Reasonable Accommodation and the Interactive Process

The Court first addresses the Defendant's claim that since the Defendant "ultimately provided [the Plaintiff] with a reasonable accommodation, [such accommodation] forecloses a claim that the interactive process was conducted in bad faith." (Document No. 56). Therefore, the Defendant argues, the Plaintiff has not met his burden to pursue a claim under Section 504 of the Rehabilitation Act.

Section 504 of the Rehabilitation Act provides, in pertinent part, that "no otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a); see also Speziale v. Bethlehem Area School District, 266 F.Supp.2d 366, 376 (E.D. Pa. 2003). To establish a prima facie case of discrimination under Section 504, an employee must demonstrate the following: "(1) that she or he has a disability; (2) that she or he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) that she or he was nonetheless terminated or otherwise prevented from performing the relevant job duties." Speziale, 266 F.Supp.2d at 376; see also Donahue v. Consolidated Rail Corp., 224 F.3d 226, 229 (3d Cir. 2000); Shapiro v. Township of Lakewood 292 F.3d 356, 360 (3d Cir. 2002).

The Court observes that "[i]n 1992 the Rehabilitation Act was amended to incorporate the standards of several sections of the [Americans with Disabilities Act]. . . ." Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjustment of Tp. of Scotch Plains, 284 F.3d 442, 455 (3d Cir. 2002) ( quoting Mengine v. Runyon, 114 F.3d 415, 420 (3d Cir. 1997)). For example, the Rehabilitation Act now provides:

The standards used to determine whether this section has been violated in a complaint alleging employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act of 1990 ( 42 U.S.C. 12111 et seq.) and the provisions of sections 501 through 504, and 510, of the Americans with Disabilities Act of 1990 ( 42 U.S.C. 12201- 12204 and 12210), as such sections relate to employment.

29 U.S.C. § 794(d) (quoted in Mengine, 114 F.3d at 420). Consequently, the 1992 amendment to the Rehabilitation Act included the ADA section defining "reasonable accommodation." Id. Under "a regulation issued pursuant to the ADA", Shapiro, 292 F.2d at 359, in order to determine a "reasonable accommodation" for a disabled employee, "it may be necessary for the [employer] to initiate an informal, interactive process ² with [the employee] 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) (quoted in Shapiro, 292 F.2d at 359) (emphasis added).

2 The ADA does not specifically refer to the "interactive process"; however, the Third Circuit in Mengine, supra, has embraced the concept of the "interactive process" as it applies to the ADA and the Rehabilitation Act.

The Third Circuit elaborated on the interactive process explaining it as follows:

When the interactive process works well, it furthers the purposes of the Rehabilitation Act and the ADA. The employer will not always know what kind of work the worker with the disability can do, and conversely, the worker may not be aware of the range of available employment opportunities, especially in a large company. Thus, the interactive process may often lead to the identification of a suitable position. If it turns out there is no job which the worker (with or without accommodation) is capable of performing, then the company cannot be held liable for an ADA or Rehabilitation Act violation.

Mengine, 114 F.3d at 420 (quoted in Shapiro, 292 F.3d at 359). Underlying the interactive process is the duty of the parties "to act in good faith" while searching for appropriate reasonable accommodation. Mengine, 114 F.3d at 420.

In order for Plaintiff to establish that the Defendant did not participate in the interactive process, the Plaintiff must show the following:

1) the employer knew about the employer'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 v. Phoenixville School District, 184 F.3d 296, 319-320 (3d Cir. 1999). Memorandum Opinion and Order, September 28, 2004, pp. 19-21.

In the case sub judice, the Plaintiff asserts that the Defendant failed to engage in good faith in the interactive process. Specifically, the Plaintiff argues that at least two vacant positions were available at the time his leave from employment was due to expire. Moreover, the Plaintiff claims that evidence exists to prove that accommodations were available to hasten the Plaintiff's return to work; nevertheless, the Defendant failed to reasonably accommodate the Plaintiff by failing to engage in the interactive process.

In spite of the Plaintiff's assertions, the Defendant argues that the Plaintiff's claim fails as a matter of law since the Defendant has provided the Plaintiff reasonable accommodations which allowed the Plaintiff to return to work. Specifically, the Defendant argues in the Motion for Reconsideration that pursuant to the dictum holding in Taylor v. Phoenixville School District, 184 F.3d 296 (3d Cir. 1999), and pursuant to the relevant decisions in Hanson v. Lucky Stores, 74 Cal. App. 4^th 215, 87 Cal Rptr. 2d 487 (1999), Tannlund-McCoy v. Golden Gate Bridge Hwy. and Transportation Dist., 2003 WL 21838378 (N.D. Cal.), and Watkins v. Ameripride, 375 F.3d 821 (9^th Cir. 2004), the Defendant is not liable for participating in bad faith in the interactive process where the employer ultimately accomplishes reasonable accommodation of a disabled employee. (Document No. 56).

1. Reasonable Accommodation

Under the ADA, "reasonable accommodation" includes "modifications or adjustments that enable a qualified individual with a disability to perform the essential functions of that position or to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situation employees without disabilities." Norman v. University of Pittsburgh, 2002 WL 32194730, *14 (W.D. Pa. 2002) (citing 29 C.F.R. § 1630.2(o)). Reasonable accommodations may include "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." 42 U.S.C. § 12111(9)(B) (quoted in Norman, 2002 WL at *14). Furthermore, in determining whether an accommodation is reasonable, the employer must consider the following: "(1) the particular job involved, its purpose, and its essential functions; (2) the employee's limitations and how those limitations can be overcome; (3) the effectiveness an accommodation would have in enabling the individual to perform the job; and (4) the preference of the employee. 29 C.F.R. § 1630.9(a)." Norman, 2002 WL at *14.

The Court observes that in order to withstand a summary judgment motion involving a failure-to-accommodate claim, the employee bears the burden of showing 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.]" Norman, 2002 WL at *14 ( quoting Mengine, 114 F.3d at 418 (3d Cir. 1997). This standard also requires the employee to show "not only that the proposed accommodation would enable [the employee] to perform the essential functions of [the] job, but also that the accommodation was feasible for the employer under the circumstances." Norman, 2002 at *14. If the employee meets this burden, then the employer has the opportunity to show that the proposed accommodation was not feasible. Id.

The Court also notes that questions regarding reasonable accommodation by an employer "turn heavily upon their facts and an appraisal of the reasonableness of the parties' behavior." Rennie v. United Parcel Service, 139 F.Supp.2d 159, 167 (D.Mass. 2001) ( quoting Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 515 (1 Cir. 1996)).³ However, "where the nature of the accommodation offered by an employer is undisputed and no reasonable jury could find the offered accommodation to be unreasonable, . . . summary judgment is appropriate." Kuehl v. Wal-Mart Stores, 909 F.Supp. 794, 803 (D.Colo. 1994) (quoted in Norman, 2002 WL at *14). Accordingly, the Court now addresses each disability discrimination case referenced in the Defendant's Motion for Reconsideration.

3 See also Watson v. SEPTA, 1997 U.S. Dist. LEXIS 13306, *11 (E.D. Pa. Aug. 28, 1997), aff'd, 207 F.3d 207 (3d Cir. 2000), cert. denied, 531 U.S. 1147 (2001); Hansen v. Runyon, No. 97 C 3672, 1999 WL 311693, *5 (N.D. Ill. May 13, 1999) (denying defendant's motion for summary judgment because there was "conflicting evidence regarding the availability and reasonableness of an accommodation."); Hurley-Bardige v. Brown, 900 F.Supp. 567, 572 (D.Mass., 1995) (denying defendant's motion for summary judgment because genuine issues of material fact existed as to "whether the accommodations provided by the [defendant] were made in a timely manner."); Merry v. A. Sulka Co., Ltd., 953 F.Supp. 922 (N.D. Ill., 1997) ("Ultimately whether an employer's accommodations are judged reasonable turns on whether the employer has made a good faith effort to assess the employee's needs and to respond to them. . . . This determination involves the careful resolution of issues of fact."); Feliberty, M.D. v. Kemper Corp., 98 F.3d 274, 280 (7^th Cir., 1996) ("Reasonableness does not depend solely on effectiveness or timeliness; in some circumstances, an accommodation can be reasonable even if it does not work as well as expected or if it takes time to take effect.").

2. Taylor v. Phoenixville School District

In Taylor, the plaintiff worked as a school principal's secretary for approximately twenty years before suffering from the onset of bipolar disorder, which resulted in her hospitalization at a psychiatric institution and subsequent leave of absence from work. Consequently, the plaintiff's son then informed her employer that doctors diagnosed her with bipolar disorder, and she "`would require accommodations when she returned to work.'" Taylor, 184 F.3d at 303. However, when the plaintiff returned to her position, the employer offered her no accommodations. Rather, her employer began to document her errors and eventually terminated her employment.

As a result of her termination, the plaintiff filed an ADA claim. Subsequently, the district court granted the employer's motion for summary judgment, determining that the only accommodation that the plaintiff requested was a transfer to another position, which was not possible. The Court of Appeals for the Third Circuit reversed the decision, holding that the plaintiff had presented sufficient evidence to create an issue of material fact as to whether the employer failed to engage in good faith in the interactive process. Id. at 319-320.

The Third Circuit decision in Taylor has been cited by the Defendant in the case sub judice for the following proposition contained in a footnote: "`We believe that where an employer has successfully made reasonable accommodation, a court can conclude as a matter of law that the employer did not act in bad faith.'" Taylor, 184 F.3d at 318, n. 9 (quoted in Document No. 56). According to the Defendant, the court in Taylor made this assertion for the following reason:

This dictum was uttered in response to a specific concern that had been expressed by the Ninth Circuit that allowing an employee with a disability to recover for the employer's failure to participate in one way or another in the interactive process would penalize the employer who ultimately accommodated. In Taylor[,] the Third Circuit sought to make it clear that the Court categorically eschewed such an interpretation of the duty to participate in the interactive process.

(Document No. 56).

The Court observes that the Ninth Circuit case referred to by the Defendant is Barnett v. U.S. Air, Inc., 157 F.3d 744 (9^th Cir. 1998), opinion amended and superseded by, 196 F.3d 979 (9^th Cir. 1998), rehearing en banc, 228 F.3d 1105 (9^th Cir. 2000), cert granted in part, 532 U.S. 970, 121 S.Ct. 1600, 149 L.Ed.2d 467 (2001). Specifically, in Barnett, 157 F.3d 744, the Ninth Circuit disagreed with the Third Circuit holding in Mengine v. Runyon, 114 F.3d 415 (3d Cir. 1997), which held that employers are obliged to participate in the interactive process. Consequently, the majority in Barnett was "worried that an employer could be held liable for failing to engage in the interactive process even though the employee was successfully accommodated." Taylor, 184 F.3d at 318, n. 9.

Although Defendant acknowledges the Third Circuit's awareness of the Ninth Circuit holding in Barnett (1998), this Court reminds the Defendant that the Ninth Circuit joined the majority of other circuits when it held that "the interactive process is a mandatory rather than a permissive obligation on the part of employers under the ADA and that this obligation is triggered by an employee or an employee's representative giving notice of the employee's disability and the desire for accommodation." Barnett, 228 F.3d 1105, 1114 (9^th Cir. 2000), cert. granted on other grounds, 532 U.S. 970, 121 S.Ct. 1600, 149 L.Ed. 2d 467 (2001).⁴ Furthermore, the Ninth Circuit concluded in an amended opinion that:

[E]mployers, who fail to engage in the interactive process in good faith, face liability for the remedies imposed by the statute if a reasonable accommodation would have been possible. We further hold that an employer cannot prevail at the summary judgment stage if there is a genuine dispute as to whether the employer engaged in good faith in the interactive process.

Barnett, 228 F.3d at 116 (quoted in Rowe, 186 F.Supp.2d at 1051).

4 In Barnett, 228 F.3d 1105, the Ninth Circuit carefully examined the "nature and scope of the interactive process between an employer and an employee seeking reasonable accommodations." Rowe v. City County of San Francisco, 186 F.Supp.2d 1047, 1051 (N.D. Cal. 2002). In particular, the Ninth Circuit "found that the process requires good faith communication by both parties as a means of achieving the shared goals of identifying an accommodation that would enable an employee to perform her job effectively." Rowe, 186 F.Supp. 2d at 1051 ( citing Barnett, 228 F.3d at 1114); see also EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Compliance Manual (CCH), § 902, No. 915.002 (March 1, 1999), at 5438. Thus, the Ninth Circuit held that, "[b]oth sides must communicate directly, exchange essential information and neither side can delay or obstruct the process." Barnett, 228 F.3d at 1114-15.

The Court also disagrees with the Defendant's interpretation of the reference to Barnett in Taylor, 184 F.3d at 318, n. 9. Indeed, the remainder of the footnote in Taylor goes on to state the following:

The Barnett majority also objected that it was not clear when an employer would incur process liability. Bad faith can, of course, take many different forms, just as negligence can, precluding easy statement of a general rule about when bad faith has occurred. However, we believe that jurors should be able to distinguish between stonewalling and assisting an employee in finding accommodations. The fact that there may be some hard cases is hardly unique in law.

Taylor, 184 F.3d at 318, n. 9. Where the Defendant claims that the Taylor court attempts to "eschew" an interpretation that employers would be liable for the failure to engage in the interactive process when an employee is "ultimately accommodated", this Court determines that rather than proposing such a categorical position regarding to bad faith interactive process claims, the Third Circuit underscores the factually-sensitive determinations to be made on a case-by-case basis. Additionally, the Third Circuit suggests that where a genuine issue of material fact exists regarding whether an employer has participated in good faith in the interactive process, or whether an employer has been "stonewalling" an employee's return to work, it is the role of the fact-finder to determine the reasonableness of the accommodation. Accordingly, this Court determines that it is not swayed by the Defendant's interpretation of the Third Circuit's holding in Taylor to support its Motion for Reconsideration. 3. Hanson v. Lucky Stores

In Hanson, the plaintiff filed a wrongful termination action alleging physical-disability discrimination against the defendant. Employed as a meat cutter for the defendant, the plaintiff suffered a hand injury while on the job. Hanson, 87 Cal.Rptr.2d at 489. The plaintiff took a series of leaves of absence from work, which amounted to sixteen months leave until he was released by his physician to return to work. Id. at 490. Due to physical restrictions, the plaintiff could no longer perform his job as meat cutter, and he was subsequently offered a position by the defendant as a part-time meat clerk. Id. The plaintiff however rejected the offer, and he failed to report to work in the meat clerk position. Id. Thereafter, the defendant terminated the plaintiff's employment. The plaintiff then filed a wrongful termination action. The district court granted summary judgment in favor of the defendant on the grounds that "(1) [the plaintiff] failed to demonstrate the proffered reasons for his termination were pretextual, and (2) [the plaintiff] failed to dispute that [the defendant] could not have made accommodations which would have allowed [the plaintiff] to return to his meat cutter job." Id. at 492.

In an appeal from the summary judgment entered in favor of the employer, the California Court of Appeals upheld the summary judgment order. Specifically, the Court of Appeals determined that the plaintiff "failed to raise a triable issue of material fact as to the [defendant']s prima facie showing." Hanson, 87 Cal.Rptr.2d at 489. In other words, "[o]nce the employer makes a `. . . sufficient showing of a legitimate reason for discharge, . . .' i.e., that it had a lawful, nondiscriminatory reason for the termination, then the discharged employee seeking to avert summary judgment must `. . . demonstrate either (by additional facts or legal argument) that the defendant's showing was in fact insufficient or (by competent evidentiary materials) that there was a triable issue of fact material to the defendant's showing'". Martin v. Lockeed Missiles Space Co., 29 Cal.App.4th 1718, 1735, 35 Cal.Rptr.2d 181 (1994) (quoted in Hanson, 87 Cal.Rptr.2d at 493). In Hanson, the Court of Appeals determined that where the defendant provided "16 months of leave, nearly twice the allowable period", and the plaintiff was offered the only available position in response to the physical restrictions suffered by the plaintiff, the plaintiff was reasonably accommodated by the defendant. Hanson, 87 Cal.Rptr.2d at 494-95.

The Court of Appeals also observed that in order to accommodate the plaintiff in Hanson, the defendant initiated the accommodation process where the plaintiff made no formal request for accommodation. For instance, the defendant met with the human resources manager, consulted the plaintiff's doctor reports, sought clarification of the reports by the plaintiff's doctor, and consulted on several occasions with the plaintiff's vocational and rehabilitation specialist. Hanson, 87 Cal.Rptr.2d at 496. Accordingly, the Court of Appeals determined that the plaintiff "raised no triable issue of material fact that [the defendant] provided him with no reasonable accommodation." Id.

The Defendant in the case sub judice offers the Hanson decision as an example of "the California Court of Appeals [upholding] summary judgment for an employer on a claim of bad faith participation in the interactive process" (Document No. 56). The Plaintiff counters that the defendant in Hanson offered the plaintiff " immediate accommodations in the form of an extension of leave . . . and then a job as soon as he was ready to return." (Document No. ____). (emphasis in original).

Initially, the Court observes that the dicta holding in Taylor, which is cited in Hanson and appropriately referenced by the Defendant, remains authoritative.⁵ Additionally, the Court notes that whether an accommodation provided by an employer is reasonable is a factual question to be determined by a jury where a genuine issue of material fact exists regarding the "reasonableness" of the accommodation. Consequently, in Hanson, the Court of Appeals concluded that the plaintiff failed to provide sufficient evidence that the defendant did not reasonably accommodate the plaintiff since the plaintiff was given more than adequate leave from work, and the plaintiff was offered the only position available which he could physically perform. The factual circumstances in Hanson, however, are distinguishable from the factual events in the case sub judice. ⁶

5 The Court recalls that the court in Taylor stated that where an employer makes reasonable accommodations, the employer as a matter of law did not act in bad faith. Taylor, 184 F.3d at 318, n. 9.

6 Although the Court declines to reproduce the entire factual record already set forth in its Memorandum Opinion and Order, dated September 28, 2004, the Court finds that the following factual history is relevant in the above discussion.

The Plaintiff began working as an Income Maintenance Caseworker for the Clearfield County Assistance Office ("CAO") in February of 1997. (Document Nos. 27 30). The CAO is "operated by the Pennsylvania Department of Public Welfare ("DPW")". (Document No. 27).

On February 23, 2000, the Plaintiff was involved in an automobile accident which rendered the Plaintiff quadriplegic. (Document Nos. 27 30). After the accident, the Plaintiff's mother was authorized to "handle all of his affairs through a `Power of Attorney'". (Document No. 27; see also Document No. 30). Acting under this authorization, the Plaintiff's mother requested on behalf of the Plaintiff a leave of absence from his employment. Id.

* * *

While the Plaintiff was hospitalized, supervisors from the CAO would visit the Plaintiff, reassuring the Plaintiff that he had a "place to come back to" when he recovered. (Document Nos. 27 30). However, during these early stages of the Plaintiff's recovery, the Plaintiff's occupational therapists did not know what accommodations would be required in order for the Plaintiff to return to work. Id. Thus, the Plaintiff did not request any accommodations from his supervisors. Id.

Before the Plaintiff's six month leave expired, the Plaintiff's mother requested an additional six month leave of absence for the Plaintiff. (Document Nos. 27 30). This second request for leave was "supported by a letter from Dr. Rocco Santarelli, who wrote that [the Plaintiff's] return to work could reasonably be expected with accommodation". Id. The letter also indicated that the Plaintiff's return to work would be approximately in one year. Id.

In a letter dated September 13, 2000, the CAO granted the Plaintiff's second request for "sick leave without pay without benefits from September 16, 2000" and ending on March 16, 2001. (Document No. 27; see also Document No. 30). The letter also stated that the Plaintiff needed to "notify the Personnel Office in writing 14 days prior to the expiration of the leave period of his intention to return to work." Id.

The second six month leave was covered by "Article 17, Section 6" of the agreement between the Commonwealth and PSSU which provided that the Plaintiff had a right to return to work only if a budgeted approved-to-fill vacancy existed "prior to the expiration of the [six]-month period." (Document No. 27).

In December of 2000, the Plaintiff attended a Christmas party at the CAO, "during which he verbally expressed his interest" to Anthony Gigliotti to return to work. (Document No. 27; see also Document No. 30). However, the Plaintiff did not indicate to Mr. Gigliotti whether he required accommodations to return to work, nor did the Plaintiff indicate the date for his return to work. Id. Indeed, at no time "between December 2000 and February 2001" did the Plaintiff inform the CAO of a date that he would return to work. Id.

In a letter dated February 27, 2001, Mr. Gigliotti informed the Plaintiff that his second six month leave of absence was to expire on March 16, 2001. (Document Nos. 27 30).

* * *

Sometime in March of 2001, the Plaintiff met with Christopher Roken, a representative from the Office of Vocational Rehabilitation ("OVR"), in order to "seek assistance for his return to work and to have [Mr.] Roken coordinate the process." (Document No. 27; see also Document No. 30). Thereafter, on March 13, 2001, Mr. Roken met with Mr. Gigliotti to discuss the Plaintiff's return to work. Id. During the meeting, Mr. Roken advised Mr. Gigliotti "that the Center for Assistive and Rehabilitative Technology (`CART') may be able to visit the CAO" in order to evaluate and make recommendations for necessary accommodations the Plaintiff will need in order to perform his job. Id.

On March 16, 2001, a work-site evaluation meeting was held at the CAO (Document Nos. 27 30). The Plaintiff, Mr. Gigliotti, Mr. Roken, union representatives, and representatives from OVR and CART were all present at the meeting. Id.

* * *

On March 16, 2001, the same date as the meeting, there were two vacancy postings at the CAO for two Income Maintenance Caseworker positions. (Document Nos. 27 30). According to the Defendant, the "filling of these positions . . . was subject to approval of a Complement Authorization Request" ("CAR"). (Document No. 27). CAR approval indicates that the Commonwealth of Pennsylvania has agreed to fund the position with its budget. Id. As of March 20, 2001, CAR approval was obtained for these two vacancy positions. Id; (see also Document No. 30).

The Defendant contends that according to the terms of the Collective Bargaining Agreement, Article 17, Section 6, the Plaintiff was not permitted to return to work on March 16, 2001 because CAR approval for the two vacancy positions was not obtained. (Document No. 27).

* * *

The parties agree that during the meeting on March 16, 2001 the Plaintiff presented to Mr. Gigliotti a note dated March 14, 2001 from Dr. Bruno Romeo. (Document Nos. 29 31). The note stated that the Plaintiff was able to return to work part-time on March 16, 2001, and that the Plaintiff could not work any longer than 20 hours per week. Id. Upon receipt of the note, Mr. Gigliotti stated that the CAO did not have any part-time work to offer the Plaintiff, thus, the note was unacceptable under the terms of the letter dated February 27, 2001, as it did not release the Plaintiff for full-time employment with the CAO. Id; see also Document No. 25, Exhibit G-4. Consequently, on the same day, the Plaintiff contacted Dr. Romeo, and a note from Dr. Romeo was faxed to the CAO "stating the [the Plaintiff] could work `full-time'." Id.

Upon receipt of the second note from Dr. Romeo, the Defendant determined that the second note releasing the Plaintiff for full-time employment was insufficient as it contradicted the earlier note from Dr. Romeo. (Document No. 30). Conversely, the Plaintiff asserts that the second note was sufficient as the first note was presented merely to ensure that the Plaintiff could continue his regime of physical therapy. (Document No. 27). Nevertheless, the Plaintiff was not permitted to return to work for the following two reasons: (1) the Plaintiff failed to provide Defendant with a sufficient medical release; and (2) an approved-to-fill vacancy did not exist on March 16, 2001. (Document Nos. 27 30).

Memorandum Opinion and Order, dated September 28, 2004, pp. 2-7.

In the present disability discrimination action, the Plaintiff requested to return to work on the day his twelve-month leave was to expire. On that day, March 16, 2001, the Plaintiff alleges that he provided the necessary paperwork to return to work. Conversely, the Defendant asserts that additional forms were needed in order to return the Plaintiff to work. Throughout the next sixteen months, certain forms were passed between the parties and various discussions were held between the parties and appropriate representatives. The Court determines that the nature of the forms, discussions, and delays which precluded the Plaintiff's return to work for approximately sixteen months raises a genuine issue of material facts regarding the reasonableness of the accommodation provided to the Plaintiff. Thus, the issue is not whether the Plaintiff was accommodated, clearly his subsequent return to work on July 15, 2002 evidences this accommodation. The issues raised are whether the Plaintiff was reasonably accommodated at the time the request for accommodation was made by the Plaintiff in 2001, and whether the Defendant attempted to provide reasonable accommodation as required by the ADA through the interactive process. See 29 C.F.R. § 1630.2(o)(3)(2001).⁷

7 The interpretive guidelines of the EEOC also provide the following:

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. § 1630, App. § 1630.9 (emphasis added) (quoted in Fjellestad, 188 F.3d at 951).

The Court observes that the ADA requires "reasonableness", not perfection. Likewise, the Third Circuit in Mengine, supra, and Taylor, supra, which embrace the concept of the "interactive process" as it applies to the ADA, does not require perfection, only reasonableness. Moreover, the Third Circuit in Taylor described the interactive process as follows:

The interactive process does not dictate that any particular concession must be made by the employer; nor does the process remove the employee's burden of showing that a particular accommodation rejected by the employer would have made the employee qualified to perform the job's essential functions. See Walton v. Mental Health Association of Southeastern Pennsylvania, 168 F.3d 661, 670 (3d Cir. 1999). All the interactive process requires is that employers make a good-faith effort to seek accommodations.

Taylor, 184 F.3d at 317. The Third Circuit further concluded:

. . . [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. On the other hand, as we explained in Mengine, `The ADA, as far as we are aware, is not intended to punish employers for behaving callously if, in fact, no accommodation for the employee's disability could reasonably have been made.' Mengine, 114 F.3d at 420 ( quoting Willis v. Conopco, Inc., 108 F.3d 282, 285 (11^th Cir. 1997)).

Taylor, 184 F.3d at 317-318. Adhering to the precepts established in Taylor, the Court determines that where other reasonable accommodations exist, as proffered by the Plaintiff in the case sub judice, then the Court's role is to permit the jury to evaluate the parties' participation in the interactive process, such that responsibility for the breakdown or unreasonable delay is assigned to the appropriate party. See Beck v. University of Wisconsin, 75 F.3d 1130, 1135-37 (7^th Cir. 1996).

The Plaintiff has provided the Court with sufficient evidence to permit a fact finder to conclude that actions of the employer resulted in an unreasonable delay in returning the Plaintiff to work. For example, the Plaintiff argues that the Defendant failed to do the following: to accept appropriate medical release forms, to consider part-time work as a reasonable accommodation, and to participate in the interactive process in good faith. (Document Nos. 31 58). Accordingly, the Court finds that the Plaintiff has proffered sufficient responsive evidence that a genuine issue of material fact exists whether the Defendant's delay in returning the Plaintiff to work was unreasonable and a pretext for disability discrimination.

4. Tannlund-McCoy v. Golden Gate Bridge Hwy. and Transportation Dist.

For purposes of the present analysis, the relevant claim presented in the employment-discrimination case of Tannlund-McCoy is an allegation by the plaintiff that her "employer failed to accommodate her mental disability in violation of federal and state law". Tunnlaund-McCoy, 2003 WL at *1. Essentially, the plaintiff, a bus driver, suffered a mental injury as the result of a verbal attack from a wheelchair-bound passenger. Id. Although the plaintiff was not immediately aware of her psychological condition, shortly after the incident on the bus, the plaintiff began missing work because of the anxiety caused by having to pick up the wheelchair-bound passenger during her route. Id.

Since the defendant bus company was "unable to make the accommodations that the plaintiff suggested", the defendant permitted the plaintiff to immediately take an unpaid leave of absence until the next bid process, whereby the plaintiff could enter a bid for a different bus route. Id. at *2. Subsequently, the plaintiff returned to work, but the defendant was unable to provide the requested accommodations. Thereafter, the plaintiff filed a civil action, attacking "defendant's initial refusal to grant her requested accommodations . . . and [the] defendant's decision to place her on leave of absence" the following year. Id. at *3.

The district court granted the defendant's motion for summary judgment because the defendant provided the plaintiff with reasonable accommodation "by providing her with a leave of absence from April to June 2000". Id. at *5. The district court held that "as a matter of law, the short leave of absence was a reasonable accommodation." Id. Furthermore, the "plaintiff's alternative requested accommodations were unreasonable" as plaintiff suggested that a route "carve-out" be provided to plaintiff where she would no longer have to confront the wheelchair-bound passenger. Id. at *5-6.

The Defendant in the case sub judice argues that pursuant to the holding in Tannlund-McCoy, "the fact that accommodation was accomplished foreclosed the claim". (Document No. 56). Indeed, as highlighted by the Defendant, the district court in Tannlund-McCoy cites to Hanson, supra, for the proposition that "[l]iability for failure to engage in the interactive process, to the extent that it existed as an independent violation under federal and state law in 2000, thus presupposes that an employee was not offered a reasonable accommodation." (citations omitted). Tannlund-McCoy, 2003 WL at *7. However, what the Defendant has failed to offer is the remainder of the district court's analysis in Tannlund-McCoy.

The district court continues in Tannlund-McCoy to conclude that "[h]ere, plaintiff was reasonably accommodated. Defendant cannot be liable for a failure to engage in the interactive process under these circumstances." Id. at *7 (emphasis added). Accordingly, this Court determines that Tannlund-McCoy does not categorically deny the existence of liability for failure to engage in the interactive process; rather, the district court has determined that where reasonable accommodations have been offered by an employer, an employer cannot be liable for failure to engage in the interactive process.⁸ The factual circumstances of Tannlund-McCoy are distinguishable from the case sub judice where the accommodations provided to the Plaintiff were not immediate (and arguably were unreasonably delayed), a genuine issue of material fact exists regarding the reasonableness of the accommodation, and a genuine issue of material fact exists regarding the reasonableness of the Defendant's engagement in the interactive process.

8 Although the Court does not set forth the proposition that independent liability exists based solely on an employer's failure to engage in good faith in the interactive process, the Court determines that a liability claim may exist, based upon the factual circumstances, where an accommodation was ultimately achieved, however, a genuine issue of material fact exists regarding the reasonableness of the accommodation. For example, evidence of unreasonable delay or postponement in returning an employee to work may provide sufficient evidence that an employer did not engage in good faith in the interactive process thereby causing an unreasonable accommodation for the employee. This illustrates how the failure to engage in good faith in the interactive process can be a critical element in the determination whether there has been a reasonable accommodation; even though such failure to engage in good faith does not of itself constitute a viable liability claim.
In addition, the Court observes that the Third Circuit has been identified by other courts as possibly permitting the proposition that an employer may be liable based upon the failure to engage in good faith in the interactive process. For example, the Eighth Circuit has stated the following:

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 [. . .]; Beck v. University of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7^th Cir. 1996); Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165 (5^th 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 [. . .]; Willis v. Conopco, Inc., 108 F.3d 282, 285 (11^th Cir. 1997); White v. York Int'l Corp., 45 F.3d 357, 363 (10^th 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.

Fjellestad, 188 F.3d at 951-952.

5. Watkins v. Ameripride

In Watkins, the plaintiff worked for the defendant performing such duties as "delivering uniforms and products to customers on his designated route and picking up soiled uniforms for laundering." Watkins, 375 F.3d at 824, While working, the plaintiff injured his wrist. Id. The injury rendered the plaintiff unable to perform the duties of his job. Id. As a result, the defendant arranged to have the plaintiff "deliver specials and perform some telephone duties" while "continuing to receive his former rate of pay". Id. However, a few months later, the defendant determined that it could not continue to pay the plaintiff "his former rate for doing specials work." Id. Therefore, the defendant offered the plaintiff a telephone position "because there were no other vacant positions" for which the plaintiff was qualified. Id.

The plaintiff rejected the defendant's telephone position offer, and the plaintiff was placed on a leave of absence. Id. The plaintiff's position, however, remained open for approximately one year while the plaintiff underwent surgery for his injury. Id. Unfortunately, the surgery was unsuccessful, and the plaintiff remained totally disabled. Id. Consequently, the plaintiff filed a reasonable accommodation claim against the defendant alleging that the defendant "should have accommodated him by offering him a full-time position as a `specials' driver." Id. at 828.

The Ninth Circuit in Watkins affirmed the district court's decision to grant the defendant summary judgment on the plaintiff's reasonable accommodation claim for the following reasons: (1) the defendant was only obligated to reassign the plaintiff to another position within the company if there was an existing, vacant position for which the plaintiff was qualified; (2) the defendant was not obligated to create a position for the plaintiff; (3) the defendant offered the plaintiff a telephone position, which he declined; (4) the defendant allowed the plaintiff to do specials work at his former rate of pay for two months; and (5) the defendant left the plaintiff's position open for approximately one year in order to permit the plaintiff to reclaim his position after the surgery. Id. at 828. Thus, the Ninth Circuit determined that the defendant reasonably accommodated the plaintiff's disability. Id. at 829.

The Defendant in the case sub judice has referred to the Watkins decision in the Motion for Reconsideration stating that the Watkins court granted "summary judgment for employer simply because the employee's disability [was] reasonably accommodated" (Document No. 56). While the Defendant has accurately stated the Ninth Circuit's conclusion, this Court also determines that the factual circumstances upon which the Ninth Circuit basis its analysis represents a clear example of an employer's good faith effort to reasonably accommodate its employee. Thus, without belaboring the Court's analysis above, the Court determines that the factual events in the case sub judice are distinguishable from those presented in Watkins. Accordingly, genuine issues of material fact exist regarding the reasonableness of the Defendant's accommodation for the Plaintiff.

6. Worthington v. City of New Haven

In addressing the Defendant's Motion for Reconsideration regarding the Plaintiff's reasonable accommodation claim, the Court has reviewed other district court cases which contain analyses of factual circumstances and/or legal issues similar to those present in this case.

In Worthington v. City of New Haven, 1999 WL 958627 (D.Conn. 1999), the district court addressed the plaintiff's ADA claim, which alleged that the "defendant repeatedly delayed consideration of and failed to implement" accommodations. Worthington, 1999 WL at *1.

The findings of fact established by the district court reveal that the plaintiff in Worthington suffered from a preexisting injury. Specifically, the plaintiff was injured in two separate automobile accidents, resulting in multiple orthopaedic injuries to her left knee, right leg, and right arm. Id. After several operations and rehabilitation, the plaintiff applied to work for the defendant as an account clerk. Id. at *2. Although her physical condition at the date of hire revealed no restrictions or limitations, the plaintiff subsequently suffered a fall at work which injured her back, neck, and knee. Id. Shortly thereafter, the plaintiff made specific requests for accommodation, such as an ergonomic chair with neck and back support and modification of her work duties to avoid prolonged standing. Id. at *2. The plaintiff alleges that these accommodations were provided after repeated delays, causing the plaintiff to become totally disabled. Id.

The conclusions of law determined by the district court regarding the reasonable accommodation claim were based upon the following burdens of production governing the reasonable accommodation inquiry:

It follows that the plaintiff bears the burden of proving that she can meet the requirements of the job without assistance, or that an accommodation exists that permits her to perform the job's essential function. . . . As to the requirement that an accommodation be reasonable, we have held that the plaintiff bears only a burden of production. This burden, we have said, is not a heavy one. It is enough for the plaintiff to suggest the existence of a plausible accommodation, the costs of which facially, do not clearly exceed its benefits. Once the plaintiff has done this, she has made out a prima facie showing that a reasonable accommodation is available, and the risk of nonpersuasion falls on the defendant. At this point the defendant's burden of persuading the factfinder that the plaintiff's proposed accommodation is unreasonable merges, in effect with its burden of showing, as an affirmative defense, that the proposed accommodation would cause it to suffer an undue hardship. For in practice meeting the burden of nonpersuasion on the reasonableness of the accommodation and demonstrating that the accommodation imposes an undue hardship amount to the same thing.

Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995) (quoted in Worthington, 1999 WL at *11-12).

Based upon the evidence, the district court in Worthington determined that the plaintiff made a prima facie showing that three accommodations existed. Id. at *12. Furthermore, the district court concluded that the defendant did not meet its burden by demonstrating that the requested accommodations were unreasonable or would have imposed an undue hardship. Id. Although the defendant argued that it ultimately "satisfied the plaintiff's request for accommodations", Id. at *13, the district court observed that the defendant "dragged its feet". Id. at *14. For example, even though "the defendant provided the plaintiff with an ergonomic chair . . . this came a full two years after [the plaintiff's] initial request, and nearly a year and a half after [the plaintiff] presented the defendant with [the doctor's] prescription for the chair." Id. In conclusion, the district court held that "the evidence show[ed] that the [defendant] failed to make a reasonable, good faith effort to determine and implement reasonable accommodations in consultation with the plaintiff,⁹ and thus discriminated against her in violation of the ADA and Section 504." Id.

9 The Court observes that the district court in Worthington noted that it "declined to follow the more restrictive view of the Eleventh Circuit Court of Appeals that the ADA does not provide a cause of action for an employer's failure to investigate or make reasonable efforts to identify reasonable accommodations. See Willis v. Concopco, Inc., 108 F.3d 282, 285 (11^th Cir. 1997)." Worthington, 1999 WL at *13, n. 3.

7. Hines v. Chrysler Corp.

In Hines v. Chrysler Corp. 231 F.Supp.2d 1027 (D.Colo. 2002), the plaintiff, a former employee of the defendant, brought an action against the defendant alleging a failure to accommodate under the ADA. Following the plaintiff's appeal of grant of summary judgment for the defendant, the Court of Appeals, 215 F.3d 1337, reversed. On remand, the district court held, inter alia, that where there was a question of fact as to whether the defendant participated in good faith with the plaintiff in the interactive process to identify vacant positions for which the plaintiff was qualified, with or without determination of whether accommodation was possible, the defendant was not entitled to summary judgment based on the plaintiff's alleged failure to establish prima facie element that reassignment was possible. In the district court's analysis of whether the failure to participate in the interactive process carries any legal significance, the court reviewed the seminal Tenth Circuit ADA reassignment case holding in Smith v. Midland Brake, Inc., 180 F.3d 1154 (10^th Cir. 1999).

The district court in Hines observed that the Tenth Circuit cited with approval the Third Circuit holding in Taylor, supra. Specifically, the Tenth Circuit held that "an employee withstands summary judgment if she can prove that there is a genuine issue of material fact as to whether the employer failed to participate in the interactive process in good faith." Hines, 231 F.Supp.2d at 1047 ( citing Smith, 180 F.3d at 1174). The district court in Hines also determined:

[C]onsistent with Phoenixville School District . . ., the law in [the Tenth Circuit] is that, if a court determines there is a genuine issue of material fact as to whether the employer participated in the interactive process in good faith, summary judgment for the employer must be denied, unless the court determines that the interactive process was unnecessary because the accommodation sought by the employee was unreasonable as a matter of law, obvious, or impossible.

Hines, 231 F.Supp.2d at 1048. The district court held that such reasoning is supported not only by the holding in Smith, but it is also supported by common sense.

The district court noted that in Smith the Tenth Circuit stated "that the ADA often requires affirmative action on the part of the employer." Hines, 231 F.Supp.2d at 1050 ( citing Smith, 180 F.3d at 1164). Accordingly, "common sense dictates that, if there is no mechanism in place to enforce the employer's duties in the interactive process, the ADA's requirements will be meaningless." Id. at 1050. Moreover, the district court in Hines observed that fairness to the parties supports its interpretation of the ADA's requirements. For example, the Hines court concluded:

If an employer is entitled to summary judgment because the employee cannot prove that a reasonable accommodation existed at the time the accommodation was requested, even though the employer impeded the employee's ability to identify a reasonable accommodation by failing to participate in the interactive process in good faith, not only would the employer successfully evade the ADA's requirements, it would benefit from its conduct. This could not be what Congress intended, nor the Tenth Circuit in Smith.

Hines, 231 F.Supp.2d at 1051.

This Court determines that the reasoning in Hines supports the Third Circuit's holding in Taylor. Furthermore, the Court finds that under the facts of the case sub judice, the Defendant was obligated to participate in the interactive process in good faith. The Court also finds that in the case sub judice, it need not reach a determination on whether the Defendant's failure to participate in good faith in the interactive process subjects it to liability; rather, the Court determines that Plaintiff has provided sufficient evidence such that a genuine issue of material fact exists regarding whether the Defendant provided the Plaintiff reasonable accommodation within a reasonable period from the date of Plaintiff's request. In other words, the Plaintiff's argument that the Defendant failed to participate in good faith in the interactive process is an essential component of the Plaintiff's claim that he was not reasonably accommodated.¹⁰ Accordingly, the Court denies the Defendant's Motion for Reconsideration regarding whether the Plaintiff is precluded from asserting a violation of Section 504 of the Rehabilitation Act when the Plaintiff was ultimately accommodated. However, the Court observes that this determination does not relieve the Plaintiff of his burden at trial to prove that a reasonable accommodation could have been made at the time it was requested or within some other reasonable time period, and that Defendant's actions caused such accommodation to be unreasonably refused or delayed. See Hines, 231 F.Supp.2d at 1051; Smith, 180 F.3d at 1174.

10 See Smith v. Midland Brake, Inc. 180 F.3d 1154, 1172 (10^th Cir. 1999) ("The obligation to engage in an interactive process is inherent in the statutory obligation to offer a reasonable accommodation to an otherwise qualified disabled employee. The interactive process is typically an essential component of the process by which a reasonable accommodation can be determined."); see also Fjellestad v. Pizza Hut of America, Inc., 1999 WL 642958, *6 (8^th Cir. 1999) ("Although an employer will not be held liable under the ADA for failing to engage in an interactive process where no reasonable accommodation was possible, we find that for purposes of a 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.")

An appropriate order follows.

ORDER

AND NOW, this 10^th day of November, 2004, after careful consideration, and for the reasons set forth in the accompanying Opinion, IT IS HEREBY ORDERED that the Motion for Reconsideration is denied.