On Appeal from the United States District Court for the Western District of Pennsylvania
BEFORE: MANSMANN, GREENBERG, and ALARCON, *fn* Circuit Judges
GREENBERG, Circuit Judge.
Karen Kralik appeals from the district court's December 16, 1996 order entering summary judgment against her under the Rehabilitation Act, 29 U.S.C. Section(s) 701 et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. Section(s) 12101 et seq., and from the district court's January 14, 1997 order denying her motion for reconsideration. The appellee, John Durbin, cross appeals from the portion of the December 16, 1996 order denying summary judgment as to one issue even though the order dismissed Kralik's complaint. We will affirm the orders granting summary judgment and denying the motion for reconsideration and will dismiss the cross appeal.
Kralik alleged in her complaint that she is an individual with a disability employed as a toll collector by the Pennsylvania Turnpike Commission, an instrumentality of the Commonwealth of Pennsylvania, at its Allegheny Valley Interchange. Durbin is Executive Director of the Commission so as a matter of convenience and reality we will refer to him as the "Commission." Kralik asserted that she suffered a back injury in an automobile accident unrelated to her work. She further asserted that she sought from the Commission the reasonable accommodation of being relieved from forced overtime "as she cannot work for more than eight hours at a time" because of her injuries. The Commission, however, refused to grant the accommodation except on a temporary basis. After the Commission filed an answer, it moved for summary judgment on the grounds that Kralik is not a qualified individual with a disability and that, in any event, the Commission is not obligated to make the requested accommodation. *fn1
In its opinion dated December 13, 1996, the district court noted that Kralik had worked for the Commission since 1988 as a toll collector and in 1990 had become a permanent Commission employee at the Allegheny Valley Interchange. Kralik was in a bargaining unit represented by Teamsters Local Union No. 250. At all relevant times the union was a party to a collective bargaining agreement with the Commission which included the following overtime provision:
Section 11. In a twenty-four (24) hour operation, if the Commission experiences difficulty in obtaining a replacement for any work shift, they will call employees using the seniority system described herein. If no employee accepts the assignment, it shall be offered by seniority to employees at the work site. In the event they refuse, the least senior employee, including any temporary employees in the needed job classifications, shall remain as the replacement. A temporary employee shall not be permitted to work overtime when a full-time employee is ready, willing and able to perform the overtime work in question. Temporary Toll Collectors who are scheduled to work forty (40) hours or who have already worked forty (40) hours in a given work week are not to be asked to work a vacant shift unless all the Temporary Toll Collectors who are not scheduled to work nor have worked forty (40) hours and all the permanent Toll Collectors have refused to work the vacant shift. All hours worked by a Temporary Toll Collector will be counted towards the forty (40) hours requirement except those hours worked which were first offered to and refused by all eligible permanent Toll Collectors.
Scheduled work time must be adjusted to comply with the above.
A. Consistent with Article IX, in the event that overtime opportunities are refused by all employees, the overtime shift shall be assigned to the employee currently working with the least amount of seniority. This will be known as a `forced overtime assignment'.
The court observed that after two medical leaves of absence due to her back injury, Kralik on November 7, 1994, submitted a "Reasonable Accommodation Form" to the Commission requesting exemption from forced overtime requirements. Kralik subsequently filed a charge with the Equal Employment Opportunity Commission ("EEOC") asserting that the Turnpike Commission had violated the ADA in not making an accommodation and that the union, Kralik, and the Commission later had entered into an agreement temporarily excusing her from being forced to work overtime. Then, as the court noted, she filed this action seeking relief under both the ADA and section 504 of the Rehabilitation Act, 29 U.S.C. Section(s) 794.
The court, citing Helen L. v. DiDario, 46 F.3d 325, 331 (3d Cir.), cert. denied, 116 S.Ct. 64 (1995), held that the similarities between the two statutes permit a joint analysis of Kralik's claims. *fn2 The court then explained:
[U]nder either the ADA or the Rehabilitation Act, a plaintiff can state a claim for discrimination based upon her employer's failure to accommodate her handicap by alleging facts showing (1) that the employer is subject to the statute under which the claim is brought, (2) that she is an individual with a disability within the meaning of the statute in question, (3) that, with or without reasonable accommodation, she could perform the essential functions of the job, and (4) that the employer had notice of the plaintiff's disability and failed to provide such accommodation.
Slip op. at 6 (quoting Lyons v. Legal Aid Soc'y, 68 F.3d 1512, 1515 (2d Cir. 1995)). For purposes of its summary judgment motion, the Commission agreed that it was subject to both the ADA and the Rehabilitation Act and had notice of Kralik's alleged disability, yet sought summary judgment on the grounds that Kralik was not a qualified individual with a disability and could not, with or without reasonable accommodation, perform the essential functions of the job as a toll collector.
As the court noted, both the ADA and the Rehabilitation Act define "disability" as a "physical or mental impairment that substantially limits" one or more of the major life activities of the individual claiming to have a disability. 42 U.S.C. Section(s) 12102(2); 29 U.S.C. Section(s) 706(26). Major life activities include "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working," 29 C.F.R. Section(s) 1630.2(i), as well as "sitting, standing, lifting [and] reaching." 29 C.F.R. Section(s) 1630 app.
After analyzing the record the court concluded as follows: (1) Kralik did not produce evidence that her ability to work, to engage in the major life activities of caring for herself or her house, to travel or engage in leisure activities, or to twist had been substantially impaired; but (2) there was a genuine dispute of fact as to whether Kralik's ability to sit, stand, and stoop had been impaired. Thus, the court denied the Commission's motion for summary judgment on the issue of whether Kralik was a qualified individual with a disability.
The court next considered the Commission's alternate contention that Kralik's claim could not succeed because the requested accommodation, exemption from the forced overtime provision, was not reasonable. In this regard the Commission pointed out that such an exemption could require the Commission to compel an employee with more seniority than Kralik to work overtime, forcing the Commission to infringe another employee's seniority rights under the collective bargaining agreement.
The court cited various cases under the Rehabilitation Act and the ADA supporting a conclusion that a measure that violates a seniority system established in a collective bargaining agreement is not a "reasonable accommodation," and thus is not required by the ADA. See Eckles v. Consolidated Rail Corp., 94 F.3d 1041, 1052 (7th Cir. 1996) (discussed below), cert. denied, 117 S.Ct. 1318 (1997); Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1114 (8th Cir. 1995) ("The ADA does not require that Northwest take action inconsistent with the contractual rights of other workers under a collective bargaining agreement."); Wooten v. Farmland Foods, 58 F.3d 382, 386 (8th Cir. 1995) ("An employer is not required to make accommodations that would violate the rights of other employees. Farmland Foods had no obligation to terminate other employees or violate a collective bargaining agreement in order to accommodate Wooten, even if it perceived him to have a substantial impairment.") (citation omitted); Milton v. Scrivner, Inc., 53 F.3d 1118, 1124-25 (10th Cir. 1995) ("An employer is not required by the ADA to reallocate job duties in order to change the essential function of a job. An accommodation that would result in other employees having to work harder or longer hours is not required.") (citations omitted); Shea v. Tisch, 870 F.2d 786, 790 (1st Cir. 1989) ("Consequently, we . . . conclude that the postal service was not required to accommodate plaintiff further by placing him in a different position since to do so would violate the rights of other employees under the collective bargaining agreement."); Carter v. Tisch, 822 F.2d 465, 467 (4th Cir. 1987) ("Reassigning Carter to permanent light duty, when he was not entitled to one of a limited number of light duty positions, might have interfered with the rights of other employees under the collective bargaining agreement.").
The court found that Kralik's requested accommodation would infringe upon the legitimate seniority rights of other employees established in the collective bargaining agreement. The court then, for the very reason that the accommodation was temporary, rejected Kralik's contention that the temporary agreement described above amounted to a concession that the requested accommodation is reasonable. See Shea, 870 F.2d at 789 & n.4 (holding that employer was not required to institute permanent accommodation that would violate rights under collective bargaining agreement despite employer's ability to maintain accommodation temporarily without compromising other employees' rights). Thus, the court concluded that "regardless of Kralik's ability to establish that one or more of her major life activities were substantially limited, the requested accommodation is not ...