However, the Court of Appeals articulated a limited defense
available in cases which do not involve stereotyping and
prejudice and where the employer educates itself about the
varying nature of impairments and makes an individualized
determination about the affected employee. Thus, "[i]f an
employer regards a plaintiff as disabled based on a mistake in an
individualized determination of the employee's actual condition
rather than on a belief about the effects of the kind of
impairment the employer regarded the employee as having, then the
employer will have a defense if the employee unreasonably failed
to inform the employer of the actual situation." Pathmark, 177
F.3d at 193.
Penn-Del argues that to the extent that its perception of
Dayoub's impairment — that Dayoub could not perform the essential
functions of either of the positions he sought as an
accommodation — was mistaken, Dayoub's doctor was responsible for
the mistake and, therefore, it is not liable. Initially, I note
that Dayoub has not brought a "regarded as" claim against
Penn-Del. Thus, it is not clear that the limited defense to a
"regarded as" claim is applicable. Nevertheless, even if it were
appropriate for Penn-Del to raise the limited defense of mistake,
it cannot take advantage of it.
The limited defense to a "regarded as" claim has an important
condition — that "the employee unreasonably failed to inform the
employer of the actual situation." Pathmark, 177 F.3d at 193.
In determining whether an employee "unreasonably failed to inform
the employer of the actual situation," the Court of Appeals
explained that "[r]easonability is a fact-specific test, and, of
course, the employee must have reason to know of the basis of the
employer's decision before he can unreasonably fail to correct a
mistake." Id. The Court of Appeals reasoned that this
qualification on the limited defense "will encourage
communication between employer and employee, in the same way that
the interactive process for determining reasonable accommodations
does." Id. at 194.
Here, Penn-Del argues that it had information about Dayoub from
forms Dayoub's doctor, Dr. Infante, filled out and sent to
Dayoub's disability insurance carrier, UNUM. Penn-Del admits that
it never spoke to either Dayoub or Infante about the contents of
the forms although Penn-Del now asserts that its conclusion that
Dayoub was unfit for any job at Penn-Del was based upon the
contents of the forms. Indeed, Penn-Del argues that it was not
necessary to discuss the severity of Dayoub's impairment because
the forms speak for themselves — despite the fact that Dr.
Infante informed Penn-Del that she believed Dayoub could and
should return to work in some other capacity. Missing from
Penn-Del's argument is evidence that Dayoub had reason to know
that Penn-Del based its assessment of his condition upon forms
his doctor filled out for the disability insurer. Without knowing
the basis for Penn-Del's decision, Dayoub cannot be found to have
"unreasonably" failed to correct Penn-Del's mistaken belief as to
the extent of his impairment, or more importantly, his ability to
perform the essential functions of other vacant positions for
which he was qualified.*fn4 Therefore, even if it were
appropriate to apply the limited defense to a "regarded as" claim
outside the context of a "regard as" claim, Penn-Del cannot rely
upon it here.
Based upon the foregoing analysis, the motion for
reconsideration will be denied. An appropriate Order follows.
AND NOW this 22nd day of March, 2000, upon consideration of
the motion of the defendant Penn-Del Directory Company for
reconsideration (Document No. 12), the response of plaintiff
James R. Dayoub, and the reply and sur-reply thereto, it is
hereby ORDERED that the motion is DENIED.
IT IS FURTHER ORDERED that the parties shall submit a joint
report to the Court no later than April 24, 2000, as to the
status of settlement. If the parties need the assistance of the
Court in facilitating settlement negotiations, the parties shall
so indicate. By said date, plaintiff shall contact the Deputy
Clerk to arrange a date for a final scheduling conference.