completed or provide any further documentation of her medical condition
to HUP." Amended Pretrial Stipulation at 2.
On the evening of March 29, 1995, plaintiff reported to work at the
Hospital. She informed the duty nurse that she could not lift patients by
herself. The duty nurse spoke to the evening coordinator, Catherine
Beer, who then spoke with plaintiff. Ms. Tatum informed Ms. Beer that she
could not lift patients without assistance. Ms. Beer was unaware of these
restrictions, and informed plaintiff that she would speak with
plaintiff's immediate supervisor, Ms. Craig, who was at home. After
speaking with Ms. Craig, Ms. Beer told plaintiff that she was required to
perform a normal assignment, and if she refused, she should leave the
Hospital, and not be paid for her time.*fn4 Plaintiff chose to go home.
The following day, plaintiff returned to work, and was notified that she
was suspended for three days without pay for failure to perform her
assignment. Between April 1995 and August 1995, plaintiff continued to
work. Plaintiffs employment was terminated on or about August 7, 1995,
for reasons not pertinent to the disposition of this motion.
Dr. Albert Cooke, plaintiff's expert, testified that he examined
plaintiff on April 28, 1999. During the pelvic examination, Dr. Cooke
noted a preexisting inflammatory condition, although he did not
positively detect the existence of a Bartholin cyst. He further stated
that he could not determine whether she had this condition in 1995,
although he stated that such a condition is consistent with plaintiff's
description of the pain she experienced in 1995.
III. DEFENDANT'S MOTION FOR JUDGMENT AS A MATTER OF LAW
In its Rule 50 motion, defendant argued that plaintiff failed to prove
that she suffered from a disability in September 1994, that was protected
by the ADA. Additionally, defendant averred that plaintiff did not show
that the Hospital failed to participate in the interactive process when
informed of plaintiff's request for accommodation in September 1994.
Although the defendant raises a serious question as to whether plaintiff
is disabled under the Act, this court need not address this question,
since no jury could reasonably find for the plaintiff on her claim that
defendant failed to participate in the interactive process of addressing
plaintiffs request for a reasonable accommodation.
Recently, the Third Circuit set forth what is required of an employee
and an "employer during the interactive process. The court stated the
following: "To show that an employer failed to participate in the
interactive process, a disabled employee must demonstrate: 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 v.
Phoenixville School District, 174 F.3d 142, 165 (3d Cir. 1999). At
trial, plaintiff failed to prove the third element, i.e., the Hospital's
lack of good faith.
Plaintiff concedes that Ms. Craig acted reasonably when she requested
more information from Dr. Parrot regarding plaintiff's disability. Dr.
Parrot's cryptic note of September 21, 1994 did not describe in detail
the nature of the disability, its cause, whether the disability was
permanent or temporary, or what treatments plaintiff was receiving. In
short, the note did not provide sufficient information to determine
whether the disability was protected under the ADA. Furthermore, Dr.
Parrot provided no details as to the restrictions needed to accommodate
plaintiff's disability. For example, there is no information as to the
amount of weight plaintiff was restricted from lifting.*fn5 The only
clarifying information, provided to Ms. Craig by plaintiff regarding Dr.
Parrot's opinion, was that Dr. Parrot indicated that plaintiff "could
work." The Third Circuit has clearly held that a plaintiff must provide
her employer with sufficient information regarding her disability. After
receiving a request for an accommodation, an employer has the right and
obligation to request additional information the employer believes it
needs. Taylor, 174 F.3d at 160-62. "[A]n employer cannot be faulted if
after conferring with the employee to find possible accommodations, the
employee fails to supply information that the employer needs or does not
answer the employer's request for more detailed proposals." Id. at 162.
See also Templeton v. Neodata Servs., Inc., 162 F.3d 617, 619 (10th Cir.
1998) (employee's failure to provide medical information necessary to the
interactive process preludes her from claiming that the employer,
violated the ADA by failing to provide reasonable accommodation).
Plaintiff has not shown that the Hospital did not make a good faith
effort to assist plaintiff in seeking an accommodation once it received
notice of plaintiff's alleged disability. On the contrary, Ms. Craig,
acting on behalf of the Hospital, did demonstrate good faith in trying to
address plaintiff's request for accommodation. First, when plaintiff
orally notified Ms. Craig of the restrictions in September 1994, Ms.
Craig immediately requested that plaintiff procure a note from her
treating physician. When Ms. Craig received the insufficient note from
Dr. Parrot, Ms. Craig requested plaintiff to get a more detailed letter
from her physician. When plaintiff informed Ms. Craig that Dr. Parrot
stated that she did not need another note, Ms. Craig gave plaintiff a
Physical Capabilities Form to be completed by Dr. Parrot. When plaintiff
informed Ms. Craig that Dr. Parrot would not complete the form because
"plaintiff could work," Ms. Craig did not stop there, but took the further
step of suggesting that plaintiff visit the Hospital's Occupational
Health Department. When plaintiff told Ms. Craig that the department told
her that she need not have this form completed because she was under a
doctor's care, Ms. Craig suggested that plaintiff have the form completed
by her family physician, Dr. Gratz.
The Third Circuit in Taylor suggested that employers "can show their
good faith in a number of ways, such as taking steps like the following:
meet with the employee who requested an accommodation, request
information about the condition and what limitations the employee has,
ask the employee what he or she specifically wants, show some sign of
having considered employee's request, and offer and discuss available
alternatives when the request is too burdensome." Id. at 162. It is
undisputed that the Hospital took the first two steps, but plaintiff did
not provide the necessary medical information. Thus, the Hospital could
not proceed further in the interactive process. Plaintiff has not shown
that prior to the termination of her employment, the Hospital foreclosed
any further discussion as to her disability, or otherwise refused to
consider any further proof of her need for a reasonable accommodation.*fn6
No reasonable jury
could find the Hospital at fault for the breakdown in the interactive
process, or for requiring plaintiff to work her normal duties on March
29, 1995. The defendant had a large hospital to run, with numerous
employees, and could not excuse plaintiff from her normal work without
some proof of her disability. The Hospital gave plaintiff at least
four opportunities to produce the required information, and she failed
to produce it. What more should the Hospital have done? As the
Fifth Circuit stated: "One cannot negotiate with a brick wall."
Loulseged, 178 F.3d 731, 737. Clearly, the Hospital did not violate the
ADA by requiring plaintiff to perform normal duties until she provided
the requisite information.
Although the Third Circuit in Taylor gave examples of how an employer
can show its good faith, it never precisely defined the term "good
faith." In other contexts, our Court of Appeals has adopted the
definition found in Black's Law Dictionary to define "good faith" as
encompassing, "an honest belief, the absence of malice, and the absence
of a design to defraud." See Commonwealth v. United States Dept. of
Health and Human Serv., 928 F.2d 1378, 1384 (3d Cir. 1991) (quoting
Black's Law Dictionary at 693 (6th ed. 1990)). Similarly, Black's defines
"bad faith" as "the opposite of good faith, generally implying or
involving actual or constructive fraud, or a design to mislead or deceive
another, or a neglect or refusal to fulfill some duty or some contractual
obligation, not prompted by an honest mistake as to one's rights or
duties, but by some interested or sinister motive." Black's Law
Dictionary at 139. No reasonable jury could find that the Hospital acted
in bad faith under this definition, when engaging in the interactive
process with the plaintiff.
Accordingly, for all of the above reasons, this court will enter
judgment in favor of defendant, the Hospital of the University of
Pennsylvania, and against plaintiff, Joyce E. Tatum, on her remaining
claims under the Americans with Disabilities Act. A judgment order
AND NOW, this 16th day of July, 1999, in accordance with the Memorandum
of Decision filed this day, it is hereby
that judgment is entered in favor of defendant, the Hospital of the
University of Pennsylvania, and against plaintiff, Joyce E. Tatum on all
claims of the Complaint.