Taylor v. Pathmark Stores, Inc. (177 F.3d 180, 1999)

OPINION OF THE COURT

BECKER, Chief Judge.

This case arises under the Americans with Disabilities Act (“ADA”). The plaintiff, Joseph B. Taylor, sued Pathmark Stores, Inc. (“Pathmark”) in the District Court, alleging that Pathmark had discriminated against him on the basis of his disability or, in the alternative, that Path-mark wrongly regarded him as disabled. The District Court granted judgment as a matter of law for Pathmark on both claims. We will affirm the District Court’s judgment on Taylor’s claim that he was disabled within, the meaning of the ADA, but reverse the judgment insofar as the District Court determined that Taylor was not regarded as disabled for the period between December 1995 and his rehiring in July 1997. In so doing, we reaffirm that, to successfully claim that he was wrongly regarded as disabled from working, a plaintiff need not be the victim of negligence or malice; an employer’s innocent mistake (which may be a function of “goofs” or miscommunications) is sufficient to subject it to liability under the ADA, see Deane v. Pocono Med. Ctr., 142 F.3d 138, 143 n. 4 (3d Cir.1998) (en banc), although the employer’s state of mind is clearly relevant to the appropriate remedies. We recognize, however, a limited defense of reasonable mistake where the employee is responsible for the employer’s erroneous perception and the employer’s perception is not based on stereotypes about disability. Under these tests, material issues of fact remain for resolution at trial.

Because of its structure and subject matter, the ADA is often a difficult statute for courts and employers to interpret and, sometimes, to follow. This case is also a difficult one, not only conceptually but also because of the odd (if not convoluted) factual background, punctuated by glitches and apparent misinterpretations of medical records, to which we now turn.

I. Factual Background

Taylor began working at Pathmark in May 1981 and was eventually promoted to frozen food manager. In December 1991, he slipped on a piece of cellophane at work and strained his right ankle. His doctor instructed him to rest the ankle for ten minutes each hour, and to refrain from walking or standing for extended periods of time. Taylor aggravated the injury in January 1992 when he fell down a flight of stairs. He took time off from work, and when he returned in November 1992 he was told that the frozen food manager post had been filled during his absence. In the following months, he was given various fight duty assignments that accommodated his limitations. He stocked shelves, occasionally sitting on a milk crate to do so, and worked in the service center, which allowed him to sit at a desk for a portion of the day. He was often allowed to work on the “bag your own” register at which customers bagged their groceries and he could sit on a stool. In November 1993, Taylor had arthroscopic surgery, a minimally invasive procedure, on his ankle.

The parties have stipulated that Taylor has a 16% permanent disability in his right ankle. When he was working on light-duty assignments, Taylor wore either an air cast or a cast type shoe, and when he exceeded his limits on standing and walking for more than fifty minutes an hour, he used a crutch or cane. Pathmark allowed this periodic resting and use of a crutch or cane until April 29, 1994. While accommodated in this fashion, Taylor was productive and Pathmark’s manager considered him a problem-free employee.

In early March 1994, Taylor’s store manager asked him to provide an updated note from his doctor setting forth any continuing restrictions on work assignments. His family doctor, Dr. Moore, provided a note stating that Taylor could continue to work, but without prolonged standing. Later that month, without Taylor’s knowledge, Pathmark’s corporate headquarters sent a request for an updated record for Taylor to his orthopaedic specialist, Dr. Gelman. Dr. Gelman replied, in an April 7, 1994, letter, that he had not seen Taylor since December of 1993 but that he believed that Taylor could return to work without any restrictions, basing his opinion on the fact that Taylor had not returned to see him.

Relying on Dr. Gelman’s letter, Taylor’s manager told him on April 29 that he had to work a full-duty cash register for a day. Taylor felt that he could not comply, refused, and eventually left the store. He contacted Pathmark’s workers’ compensation representative and learned for the first time of Dr. Gelman’s letter. He sought an examination with Dr. Gelman, after which, on May 5, the doctor sent Pathmark another letter stating that Taylor could engage in “full-time work — limited standing.” Pathmark’s administrative offices, however, never forwarded the letter to Taylor’s manager and he was not asked to return to work. Pathmark’s internal email suggested that there was a “glitch” in this series of events because of Dr. Gelman’s initial problematic evaluation. Taylor’s store manager likewise admitted that Dr. Gelman’s first letter was incorrect and that Dr. Moore’s note was probably more accurate, but the manager was never given Dr. Gelman’s updated note of May 5. When Taylor called his manager about getting back on a work schedule, his manager told him, “I don’t care.”

On May 27 and September 2, 1994, Pathmark sent Taylor to Dr. Case, an orthopaedic surgeon. After the first visit, Dr. Case wrote to Pathmark counsel that Taylor could work with restrictions, but Pathmark did not invite him to return to work. After the September visit, Dr. Case told Pathmark that Taylor could return to work with an air splint. Pathmark apparently took no action for approximately one year thereafter.

In September 1995, Pathmark’s ADA Committee evaluated Taylor and sent Dr. Moore a questionnaire asking about Taylor’s restrictions. Dr. Moore reported to the committee on October 5, 1995, that Taylor was temporarily subject to increased work restrictions due to an aggravation of his ankle injury in July 1995. The form Pathmark provided allowed him to check either “permanent” or “temporary,” and Dr. Moore checked “temporary,” writing in that the restrictions would last for six months or more. Taylor wrote to Pathmark on December 19, 1995, representing that his temporary restrictions had been lifted and that he could work under his permanent limitations as he had been doing prior to April 1994. The evidence was that Pathmark’s ADA Committee evaluated his case in late 1995, but took no action on it for approximately seven months, for reasons that are not apparent.

Pathmark fired Taylor by letter dated May 13, 1996. The letter, which was written by the ADA Committee, stated that Taylor’s inability to work “effectively severs your employment relationship with Pathmark as of May 13, 1996.” The letter recited that Dr. Moore’s restrictions allowed Taylor to: stand one hour at a time up to four hours a day; walk one hour at a time not to exceed one hour a day; lift, carry, push, and pull ten pounds frequently, up to twenty pounds occasionally, and never over twenty pounds; and occasionally bend, squat, climb, and reach. The letter further stated that Taylor’s restrictions precluded crawling or repetitive pushing and pulling of leg controls and required breaks to be taken as necessary. The letter continued that, comparing the restrictions with the physical requirements of the frozen food manager job,

[tjhese restrictions on your work related activities are such that any reasonable accommodation which Pathmark might provide are insufficient to enable you to function to standard in your position as a Frozen Food Manager which regularly requires:

* Regularly lifting and carrying 25 pounds

* Frequently stooping, crouching and reaching

* Extended standing and walking Furthermore, your restrictions are

such that you cannot perform the essential functions of any other available position, all of which require extended standing and/or walking and regular reaching. We have been advised your restrictions are permanent.

App. at A55-56 (emphasis added).

After Taylor received this letter, he contacted Dr. Moore, who clarified his position that Taylor had been temporarily, but not permanently, heavily restricted and that Taylor could work with either ten minute rest breaks per hour or the use of a cane or crutch. Pathmark asked Dr. Moore to fill out a new capabilities form, which he did on June 19, 1996, restating these restrictions, but Taylor was not reinstated. There was testimony that the ADA Committee realized that its May 13 letter was mistaken, but it never reconsidered Taylor or looked into giving him a cashier’s job with a stool, though he could have been accommodated. Instead, the Committee referred the matter to Path-mark’s legal department and heard no more about it. Meanwhile, Pathmark’s workers’ compensation department was insisting that he could return to work full-time. From 1994 on, Taylor had regularly contacted Pathmark, asking for work, and his union representative had also tried to get him back to work. After he was fired, he brought this suit. He was rehired in July 1997, during the pendency of this litigation, and is currently employed as a third-shift nonfoods clerk.

Taylor argues that Pathmark should have given him a job that he could do. Pathmark’s Store Operations Employment Compliance Manual provides for reasonable accommodation in cashier positions for people who have trouble standing for extended periods. Pathmark’s ADA Training for Management Associates manual also suggests that stools are reasonable accommodations for people who cannot stand for long periods. Taylor’s last store manager conceded that when Taylor was out on disability he should have been considered for a cashier position with a stool. Moreover, Taylor and his vocational expert, Thomas Yohe, offered testimony that the frozen food manager job requires a significant amount of book work, sales planning, schedule writing, looking up orders, checking bills, preparing signs, and using a computer, all of which can be done while sitting. This amounts to forty-five minutes to an hour of sitting per day. Combined with sitting during Taylor’s morning, afternoon, and lunch breaks, which amount to forty minutes per day, Taylor argues that he would be off his feet ten minutes per hour without accommodation. Yohe testified that Taylor’s restrictions could be accommodated in his previous Pathmark jobs, including the frozen food manager job, with the “minor” accommodation of allowing him to use a milk crate to sit on or to prop up his foot.

After Taylor had presented his evidence at trial, the District Court granted “summary judgment” for Pathmark. It would be more accurate to state that the District Court granted a motion under Fed. R. Civ. Proc. 50(a). Because the District Court dismissed the case after Taylor presented his evidence to a jury, Pathmark suggests that we should give increased deference to the trial judge. Unsurprisingly, Pathmark cites no authority for this proposition and, since Taylor’s claims were not in fact evaluated by his chosen finder of fact, we disagree. At all events, Pathmark concedes that the proper test is the standard one: We must view the facts in the light most favorable to Taylor.

II. Was Taylor “Disabled” Under the ADA? (Was He Substantially Limited in the Major Life Activities of Walking and Standing?)

Taylor’s first theory is that he has a “disability” under the ADA, which covers impairments that substantially limit a major life activity. EEOC regulations provide, and no one here contests, that walking and standing are major life activities. See 29 C.F.R. § 1630.2© App. (1996). “Substantial limitations” are those that render an individual

(i) unable to perform a major life activity that the average person in the general population can perform; or

(ii) significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity-

29 C.F.R. § 1630.2