the note formed the basis for its determination that Dayoub would
be unable to perform the essential functions of any available
position lacks merit. If Penn-Del thought that the note was vague
or if Penn-Del had concerns about Dayoub's ability to perform as
an instructor (or did not understand the limitations described in
the note), then Penn-Del "`easily could have called [the
psychiatrist] for a clarification.'" Taylor, at 160 (quoting
Bultemeyer v. Fort Wayne Community Schs., 100 F.3d 1281, 1285
(7th Cir. 1996)). "The interactive process, as the name implies,
requires the employer to take some initiative." Id.
Penn-Del further argues that it did fully investigate the
possibility of Dayoub returning to work in a different capacity.
(Attached to Defendant Penn-Del Directory Company's Brief in
Support of Its Motion for Summary Judgment). To that end,
Penn-Del has submitted the certified statement of John Boylan in
which he states that he spoke with Dr. Infante on numerous
occasions regarding Dayoub. Specifically, Boylan states that Dr.
Infante informed him that Dayoub could not return to his former
job District Sales Manager nor to any other type of sales job,
from administrative or supervisory positions to telephone sales.
Boylan also states that Dr. Infante raised the issue of a
training or coaching job, but that once Boylan described what was
involved in a training or coaching position, Dr. Infante agreed
that Dayoub could not perform such a job. Boylan further states
that Dr. Infante explained that Dayoub had short term memory loss
and an inability to handle stress. In sum, Boylan's overall
impression from his discussions with Dr. Infante were that
despite any accommodation Penn-Del could offer, Dayoub was simply
incapable of performing the essential functions of any position
at Penn-Del. Penn-Del thus argues that, according to Dayoub's
doctor and despite their best efforts, a reassignment was not
feasible and, therefore, accommodation impossible.
Dayoub, however, has introduced the certified statement of Dr.
Infante in which she states that she never spoke with Boylan.
(Attached to Plaintiff's Response in Opposition to Defendant's
Motion for Summary Judgment). Dr. Infante states that the only
person she spoke to at Penn-Del was Veth. Moreover, she states
that Boylan's statement regarding the content of their alleged
conversations is inconsistent with her beliefs about Dayoub's
capabilities at the time and inconsistent with her attempts to
return Dayoub to a different position at Penn-Del. She states
that when she spoke with Veth, she explained that she thought it
was important that Dayoub return to work and she described what
Dayoub's capabilities and limitations were. Finally, Dr. Infante
states that she would have released Dayoub to return to work had
Penn-Del offered him an opportunity to return in a sales capacity
or other appropriate capacity.
Viewing the evidence in the light most favorable to Dayoub, I
conclude that there is sufficient evidence to raise a genuine
issue of material fact as to whether Penn-Del engaged in the
interactive process in good faith and whether Dayoub could have
been reasonably accommodated but for Penn-Del's lack of good
faith. The Court recognizes that Dayoub must still carry his
ultimate burden of proving that at the time of his termination
that he was capable of performing the essential duties, with or
without reasonable accommodation, of the position he desired.
However, "[w]hen an employee has evidence that the employer did
not act in good faith in the interactive process, . . . we will
not readily decide on summary judgment that accommodation was not
possible and that the employer's bad faith could have no
at 163. Although the Court is not sanguine that Dayoub can carry
his ultimate burden at trial, the Court cannot find as a matter
of law that accommodation was impossible.
This Court recognizes the sincerity of the arguments of the
defendant and its position that Dr. Infante is somehow guilty of
perfidious conduct in supporting her patient's ADA claim.
However, the Taylor decision is binding authority on the burden
of the employer to engage in the interactive process and this
Court cannot ignore the factual disputes surrounding Penn-Del's
efforts to accommodate Dayoub and the likely outcome of that
process. This Court has no legal authority to decide these
factual disputes. Resolution of such factual issues is reserved
for the jury. Thus, based upon the foregoing analysis, the motion
will be denied. An appropriate Order follows.