SUPREME COURT DECISIONS INTERPRETING THE AMERICANS WITH DISABILITIES ACT**

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OVERVIEW OF ISSUES ADDRESSED BY THE COURT IN ADA CASES

SELECTED 3rd CIRCUIT COURT OF APPEALS ADA/504 CASES
Cases highlited in blue are linked to the actual decision in Findlaw

***Turner v. Hershey Chocolate U.S., --- F.3d --- (3/2006) In sum, the question of whether Turner can perform the essential functions of her position with reasonable accommodation is an issue for the jury. We find that Turner is not estopped by her SSDI and long-term disability claims. Having so found, we will reverse the District Court’s grant of summary judgment in favor of Hershey and remand to the District Court for further proceedings consistent with this opinion.

***Armstrong v. Burdette Tomlin Memorial Hosp., 438 F.3d 240 (1/2006) Arnie Armstrong appeals from an order of the United States District Court for the District of New Jersey denying his motion for a new trial on his claims of failure to accommodate his disability, as well as age discrimination and disabilitydiscrimination. Armstrong contends that the District Court erred in charging the jury regarding the elements of his claims and the parties' respective burdens of proof, and in approving jury interrogatories. the jury was not properly instructed that the Defendants' belief that Armstrong could not do the job because of his physical limitations had to be reasonable and that the burden of proving this was on the Defendants.  we reverse and remand for a new trial of Armstrong's disability discrimination claim.

***Benn v. First Judicial Dist. of Pa., 426 F.3d 233, (10/2005) The Pennsylvania constitution envisions a unified state judicial system, of which the Judicial District is an integral component. From a holistic analysis of the Judicial District's relationship with the state, it is undeniable that Pennsylvania is the real party in interest in Benn's suit and would be subjected to both indignity and an impermissible risk of legal liability if the suit were allowed to proceed. We agree with the District Court that the Judicial District has Eleventh Amendment immunity which functions as an absolute bar to Benn's ADA claim. We therefore will affirm the order granting summary judgment.

Frederick L. v. Department of Public Welfare of Pa., 422 F.3d 151 (9/2005) Appellants ("Patients") are a class of mental health patients institutionalized at NSH who are statutorily eligible for deinstitutionalization and who therefore seek integration into community-based healthcare programs. Patients claim that because they are qualified and prepared for community-based services, their continued institutionalization violates the anti-discrimination and integration mandates of the Americans with Disabilities Act We vacate the Court's judgment in favor of DPW and remand for further proceedings not inconsistent with this opinion. although we uphold the District Court's factual conclusion that accelerating community placements would constrain the state's ability to satisfy the needs of other institutionalized patients, DPW may not avail itself of the "fundamental alteration" defense to relieve its obligation to deinstitutionalize eligible patients without establishing a plan that adequately demonstrates a reasonably specific and measurable commitment to deinstitutionalization for which DPW may be held accountable. Although DPW attempted to construct such a plan, we are not persuaded that its efforts have been sufficient.The lengthy procedural history of this case reveals that we would be promoting confusion rather than clarity if we were to remand without providing DPW some specifics that are critically important to a comprehensive, effectively working plan. To alleviate the concerns articulated in Olmstead, we believe that a viable integration plan at a bare minimum should specify the time-frame or target date for patient discharge, the approximate number of patients to be discharged each time period, the eligibility for discharge, and a general description of the collaboration required between the local authorities and the housing, transportation, care, and education agencies to effectuate integration into the community

***Addiction Specialists, Inc. v. Township of Hampton, 411 F.3d 399 (6/2005.) ASI also alleged that the Township's denial of access to the public accommodations and health services that the ASI facility would provide to disabled individuals constituted unlawful discrimination under the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. §§ 952, et seq.; the Americans With Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, et seq.; and the Rehabilitation Act ("RA"), The District Court abused its discretion in applying Younger abstention to (1) Counts I and II of the Second-Amended Complaint, brought pursuant to 42 U.S.C. § 1983, alleging that the Township's actions deprived ASI of its rights under the Fourteenth Amendment; (2) ASI's allegations of unlawful discriminatory actions by the Township brought pursuant to the ADA and RA; (3) ASI's ADA and RA claims for damages alleging the invalidity of MPC § 621, 53 P.S. § 10621; and (4) Count VI of the Second-Amended Complaint, requesting a declaratory judgment that the Township's actions violated the United States and Pennsylvania Constitutions. We will, however, affirm the District Court's application of abstention to (1) Count VII of ASI's Second-Amended Complaint, requesting a declaration that section 12.400 of the Township Zoning Ordinance and MPC § 621 are null and void and unenforceable; and (2) ASI's ADA and RA claims for injunctive relief alleging the invalidity of MPC § 621.

Pennsylvania Protection and Advocacy, Inc. v. Pennsylvania Dept. of Public Welfare, 402 F.3d 374 (3/2005) This matter is the most recent in a line of cases involving the Commonwealth of Pennsylvania's Department of Public Welfare ("DPW") and various mental/nursing institutions administered by that agency. At issue once again is the Commonwealth's alleged failure to comply effectively and expediently with the integration mandate and non-discriminatory administration provisions of Title II of the Americans With Disabilities Act ("ADA"), 42 U.S.C. §§ 12131-12134, and Section 504 of the Rehabilitation Act ("RA"), 29 U.S.C. § 794. We hold that DPW's asserted defense to the integration mandate claim of Plaintiff-Appellant Pennsylvania Protection and Advocacy, Inc. ("PP & A") is legally insufficient and that the District Court erred in its legal conclusion that the nondiscriminatory administration provisions were not violated. As such, we remand for further proceedings consistent with this opinion.

***Emory v. AstraZeneca Pharmaceuticals LP, 401 F.3d 174 (3/2005) Alvin "Rob" Emory brought suit against his longtime employer, AstraZeneca Pharmaceuticals LP ("AstraZeneca"), alleging disability discrimination in the form of failure to promote and failure to provide reasonable accommodations in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Moving for summary judgment, AstraZeneca urged that Emory's substantive claims of discrimination need not be addressed because Emory, as a threshold matter, was not "disabled" under the ADA. The District Court agreed and granted AstraZeneca's motion on that basis. We disagree. Because a proper analysis of Emory's claims shows that he has established, at the very least, a genuine issue of fact as to his impairments' substantially limiting effect on his ability to perform manual tasks and learn, we will reverse and remand the District Court's grant of summary judgment in favor of AstraZeneca.

***Fiscus v. Wal-Mart Stores, Inc., 385 F.3d 378, (10/2004) Appellant Cathy A. Fiscus, who was an employee at appellee Wal-Mart, suffered from end-stage renal disease from 1998 until she received a kidney transplant in September 1999. End-stage renal disease means near-total kidney failure. From 1998 until September 1999, therefore, Fiscus was required to undergo time-consuming and uncomfortable dialysis treatments to cleanse and eliminate waste from her blood. Fiscus sought a reasonable accommodation from her employer during the period of her dialysis. Wal-Mart declined. As a consequence, she was placed on leave, which expired before the recuperation period from her kidney transplant. Fiscus sued under the Americans with Disabilities Act. Wal-Mart asserted that her kidney failure was not a covered disability, arguing that the inability to cleanse one's own blood and eliminate body waste does not amount to the limitation of a major life activity under the statute. The District Court agreed with Wal-Mart. We do not. Because we conclude that a physical impairment that limits an individual's ability to cleanse and eliminate body waste does impair a major life activity, we will reverse the judgment  of the District Court in favor of Wal-Mart.

***Williams v. Philadelphia Housing Authority Police Dept. 380 F.3d 751 (8/2004) The Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., prohibits covered employers from discriminating against qualified individuals on the basis of their disabilities. Edward Raymond Williams was unable to carry a firearm as the result of a mental condition, and was additionally perceived by his employer to be unable to have access to firearms, or be around others carrying firearms. Granting summary judgment in favor of the Philadelphia Housing Authority ("PHA"), Williams's employer, the District Court held that such limitations would not make Williams significantly restricted in the major life activity of working because they did not prevent him from performing work in a broad range of jobs in various classes. Because the District Court did not consider whether such limitations would prevent Williams from performing work in a class of jobs, and because a reasonable jury could conclude that Williams was actually (or perceived to be) precluded from working in a class of jobs, we will now reverse that grant of summary judgment a nd remand Williams's ADA discrimination claim (and corresponding claim under the Pennsylvania Human Relations Act) for further proceedings. We will affirm the District Court's determination with respect to Williams's retaliation claims because Williams has not proffered sufficient evidence to support a retaliation claim.

***Frederick L. v. Department of Public Welfare of Com. of Pennsylvania, 364 F.3d 487 (4/2004) what is at issue is compliance with two federal statutes enacted to protect disabled persons. The courts have held states throughout the country responsible for finding the manner to integrate the schools, improve prison conditions, and equalize funding to schools within the respective states, notwithstanding the states' protestations about the cost of remedial actions. The plaintiffs in this case are perhaps the most vulnerable. It is a gross injustice to keep these disabled persons in an institution notwithstanding the agreement of all relevant parties that they no longer require institutionalization. We must reflect on that more than a passing moment. It is not enough for DPW to give passing acknowledgment of that fact. It must be prepared to make a commitment to action in a manner for which it can be held accountable by the courts. In analyzing whether there was sufficient evidence before the District Court to justify its acceptance of the Commonwealth's fundamental-alteration defense, we conclude that its factual findings are fully supported by the evidence of record. As noted in the foregoing discussion, many of the court's conclusions of law are also consistent with the governing legal principles. We believe that the cost constraints make it inappropriate for us to direct DPW to develop 60 community residential slots per year as Appellants request. Unlike Appellants, we credit the Commonwealth for its past progress in deinstitutionalization. We depart from the District Court's analysis in its assumption or prediction that past actions auger future commitments. Accordingly, we will vacate the judgment of the District Court and remand so that it can direct the Commonwealth to make a submission that the District Court can evaluate to determine whether it complies with this opinion.

***Bowers v. National Collegiate Athletic Ass'n, 348 F.3d 181 (8/2003) Title I does not provide for a right to contribution nor does any court appear to have implied such a right. Furthermore, under Northwest Airlines, contribution is not available under Title VII. Even were we to consider Title III as another possibly analogous provision, neither Title III nor Title II of the Civil Rights Act of 1964 appears ever to have been held to create a right to contribution. Thus, we reach our conclusion that there is no right to contribution under Title II of the ADA. We, therefore, will reverse the district court's orders of November 7, 2001, and March 6, 2002, appealed at No. 02-3236, with respect to UMass and Delaware and remand the matter to the district court to dismiss the contribution claims against them under both section 504 and Title II.

***A.W. v. Jersey City Public Schools, 341 F.3d 234 (8/2003) Defendants the New Jersey Department of Education ("NJDOE"), Jeffrey Osowski, BarbaraGantwerk, and Melinda Zangrillo (collectively "State Defendants") appeal from the order of the United States District Court for the District of New Jersey denying their motion to dismiss. We must determine whether the State Defendants are entitled to constitutional immunity from plaintiff A.W.'s claims under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. The District Court correctly held that the State Defendants have waived any immunity from these claims by the acceptance of the federal financial assistance. We therefore will affirm.

***Conneen v. MBNA America Bank, N.A., 334 F.3d 318 (6/2003) The district court granted summary judgment in favor of MBNA, and against Conneen, and this appeal followed. The court concluded that Conneen was not entitled to the protection of the ADA because she could not demonstrate that she could perform the essential functions of her job with or without an accommodation. Although we disagree with that conclusion, we nevertheless affirm the grant of summary judgment in favor of MBNA as there is no genuine issue of material fact that would allow a reasonable juror to conclude that MBNA terminated Conneen because of her disability or that MBNA failed to engage in the interactive process as required under the ADA.

***Gagliardo v. Connaught Laboratories, Inc. 311 F.3d 565, 13 A.D. Cases 1345 (11/2002)  As the trial court concluded, Gagliardo produced sufficient evidence of CLI's reckless indifference toward her statutory disability rights. Gagliardo presented evidence that CLI -- through its employees -- was aware she had MS. For example, Gagliardo produced evidence that her last supervisor, Judith Stout, and CLI's human resources representative, Christine Kirby, discussed Gagliardo's MS prior to Gagliardo's dismissal. Gagliardo also produced evidence that Stout requested information concerning MS. She also offered evidence that she advised CLI of the limitations her condition imposed on her ability to perform her job and that a high level CLI employee -- herself an MS sufferer -- counseled Gagliardo regarding the impact of the disease. In addition, Gagliardo produced evidence that she had requested accommodation on multiple occasions and that CLI refused to act on any of those requests. Finally, Gagliardo demonstrated that CLI was aware of her federal disability rights, as Christine Kirby testified she was familiar with the ADA and responsible for ensuring CLI followed the ADA. In sum, there was sufficient evidence to support the jury's award of punitive damages.

***Shapiro v. Township of Lakewood, 292 F.3d 356 (5/2002)  Howard Shapiro became disabled during the course ofhis employment with the Township of Lakewood ("Lakewood" or the "Township"). When he requested a "reasonable accommodation," Lakewood refused to transfer him unless he followed the standard procedure for interdepartmental transfers -- which apparently consisted of going to the municipal building and looking at announcements posted on a bulletin board. Shapiro subsequently filed this action, claiming, among other things, that Lakewood had violated his rights under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Shapiro argued that by requesting a reasonable accommodation, he had initiated an "interactive process" in which Lakewood was required to engage. Although Shapiro identified several positions that were vacant during the period in question and that he could have filled, the District Court granted summary judgment for the Township because Shapiro had not formally applied for those positions. We hold that because Shapiro requested accommodation and because he identified positions into which he could have been transferred -- namely, positions as a police dispatcher -- summary judgment in favor of the Township was not proper. Accordingly, we reverse the District Court's order granting Lakewood's motion for summary judgment and remand the case for further proceedings.

Chisom v. McManimon, 275 F.3d 315 (12/2002) In this appeal, we must resolve two issues. First, we consider whether the Eleventh Amendment bars suit against a county court, based on an alleged failure to provide interpretive services, where the judicial, but not all the administrative, functions of the court have been merged by steps into a unified state court system. Under the facts here, we hold that suit is not barred. Second, we review whether the District Court properly granted summary judgment, dismissing claims brought by a disabled inmate under Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12135 ("ADA"), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Rehabilitation Act"), 42 U.S.C. § 1983 and the New Jersey Law Against Discrimination, N.J. Stat. § 10:5-4.1 (NJLAD). Because we conclude that there are genuine issues of material fact, we will reverse the granting of summary judgment by the District Court and remand this case for further proceedings consistent with this opinion.

Skerski v. Time Warner Cable Co., a Div of Time Warner Entertainment Co., L.P., 257 F.3d 273 (7/2001)  For the foregoing reasons, we will reverse the District Court's order granting summary judgment to Time Warner on Skerski's claim under the ADA. We believe there are genuine issues of material fact as to whether climbing is an "essential function" of Skerski's job as an installer technician, and, if it is, whether Time Warner provided Skerski with a "reasonable accommodation" under the ADA.

Smith v. Davis, 248 F.3d 249 (5/2001) The District Court dismissed the § 1983 claim essentially because Smith's rights were not violated by his termination. In view of our reversal of the summary judgment on the civil rights claims, we will reverse the dismissal of the § 1983 claim as well. CONSPIRACY The District Court dismissed this claim for lack of evidence to support it. Smith does not challenge that ruling on appeal. CONCLUSION We reverse the judgment with respect to the ADA, Title VII, and § 1983 claims and remand for further proceedings. We affirm the judgment with r espect to the remaining claims.

Tice v. Centre Area Transp. Authority, 247 F.3d 506 (4/2001)  We ultimately conclude that an employer's r equest for a medical examination, standing alone, is not sufficient to establish that the employer "regarded" the employee as disabled, and thus cannot itself form the basis for establishing membership in the protected class under the ADA. As a result, Tice's claim of discriminatory discharge fails. We interpret the ADA to per mit medical examinations and inquiries upon a showing by the employer of job- relatedness and business necessity, and, because CATA has made such a showing in this case (which T ice has failed to rebut), we conclude that his claim of discrimination by way of an improper medical examination must also fail. Finally, we join several of our sister circuits in holding that a plaintiff alleging a violation of the ADA's recordkeeping and examination requir ements must demonstrate the existence of some actual damage in order to maintain his or her suit. Because Tice has not demonstrated that he suffered any injury as a result of CATA's recordkeeping violations, he cannot prevail on this claim. Therefore, we will affirm the judgment of the District Court.

Doe v. County of Centre, PA, 242 F.3d 437 (3/2001)  we will reverse the District Court's grant of summary judgment against the Does on their claims of disability discrimination and remand for further discovery and factual findings. We will also reverse the District Court's grant of summary judgment in favor of the County on the Does' racial discrimination claims and remand for further proceedings. Lastly, we will affirm the District Court's conclusions that the CYS officials are entitled to qualified immunity and that punitive damages are unavailable against the County entities.

Donahue v. Consolidated Rail Corp., 224 F.3d 226 (2000)  where a universe of potential accommodations has been identified, if the employer refuses in bad faith to engage in the interactive process, "we will not readily decide on summary judgment that accommodation was not possible and the employer's bad faith could have no effect." Taylor, 184 F.3d at 318. This proposition, however, cannot aid a plaintiff such as Donahue who, after the opportunity for discovery regarding available positions, could not identify any vacant, funded position, at the appropriate level, that he could have performed without presenting a significant safety risk.

Marinelli v. City of Erie, Penn., 216 F.3d 354 (2000)  Congress did not intend for the ADA to protect all individuals who suffer from medical difficulties; rather, Congress desired to shield from adverse employment actions those individuals whose medical troubles prevented them from engaging in significant daily activities. Because the record does not reveal that Marinelli submitted evidence that would allow a reasonable juror to conclude that he was a member of the latter class of individuals, we hold that the District Court erred in denying the City's motion for judgment as a matter of law.9 We will therefore vacate the final judgment order awarding Marinelli $241,465.53, and entered by the District Court on December 22, 1998, and will further remand this matter to the District Court with the direction to enter judgment as a matter of law in favor of the City.

Jones v. United Parcel Service, 214 F.3d 402 (2000)  The record reflects that the only request made by Jones of UPS was for continued payment of disability benefits. Because there is no evidence from which a request for accommodation could be inferred, UPS was under no legal obligation to engage in the interactive process.

Motley v. New Jersey State Police, 196 F.3d 160 (1999)  Plaintiff Daniel C. Motley, a former New Jersey State Trooper, was seriously injured on the job. Although he continued working as a Detective for several years after the accident, Motley was denied promotions because he was unable to complete the required annual physical examination. Eventually, Motley voluntarily took an accidental disability retirement, which included enhanced pension benefits. Thereafter, Motley sued the New Jersey State Police and others who are not parties to this appeal, alleging that by refusing to promote him for failing to pass the physical exam, the State Police discriminated against him on the basis of a physical handicap in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), and the New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-1 et seq. ("NJLAD"). The District Court granted summary judgment to the State Police, ruling that Motley's prior admission of permanent and total disability during the disability application process judicially estopped him from asserting that he was qualified for the job he sought. We will affirm, not because he was estopped, but because Motley was simply not entitled to survive summary judgment in light of his prior assertions of total disability, and his failure to adequately reconcile his wholly inconsistent positions.

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

Leheny v. City of Pittsburgh, 183 F.3d 220 (1999)  These cross-appeals by the City of Pittsburgh and three retired police officers (the "Retirees") require us to decide whether a City policy that offsets pension benefits for disabled retired police officers by worker's compensation benefits violates equal protection and due process rights and constitutes a violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"). The district court dismissed the Retirees' ADA claim but submitted the constitutional claims to a jury that awarded compensatory damages.   In its appeal from the judgment on the jury verdict, the City contends that the court erred in not granting judgment as a matter of law on the equal protection and due process claims. In their appeal, the Retirees contend that the court erred in dismissing their ADA claim. We have jurisdiction pursuant to 28 U.S.C. § 1291. We hold that the district court correctly dismissed the Retirees' ADA claim but erred when it failed to grant judgment as a matter of law in the City's favor on the equal protection and due process claims. Accordingly, we will affirm in part and reverse in part.

Churchill v. Star Enterprises, 183 F.3d 184 (1999)  This case involves a question of claim preclusion: what steps must a plaintiff take to bring about the consolidation of her consecutively filed cases in the district court so that claims in the later case are not precluded by the earlier action? In particular, the district court barred appellant Mary Churchill by a judgment on the pleadings from proceeding with a law suit, Churchill v. Star Enterprises , 3 F. Supp.2d 625 (E.D. Pa. 1998) (" Churchill II"), alleging claims under the Americans with Disabilities Act and the Pennsylvania Human Relations Act because she already had brought a suit, Churchill I, based on the same facts and related issues against the defendants in Churchill II, asserting claims in Churchill I under the Family and Medical Leave Act. See Churchill v. Star Enters. , 3 F. Supp.2d 622 (E.D. Pa. 1998) (" Churchill I").    We will affirm the district court's judgment on the pleadings in Churchill II because the two cases involved the same parties and germane facts, as well as related issues, and for claim preclusion purposes constituted a single cause of action that should have been joined in a single case. We also will affirm the district court's order on the Appellees' cross-appeal from the denial of an order under Fed. R. Civ. P. 11 seeking sanctions against Churchill for filing Churchill II. Finally, we will affirm on Churchill's separate appeal from an order denying in part her application for attorney's fees in Churchill I.

Taylor v. Phoenixville School Dist., 184 F.3d 296 (1999) We believe that a reasonable jury could conclude that Taylor requested accommodations, that the school district made no effort to help Taylor find accommodations and was responsible for the breakdown in the process, and that there were accommodations that the school district could have provided that would have made Taylor able to perform the essential functions of her job. If a jury concludes that the school district was not responsible for the breakdown in the interactive process, Taylor must demonstrate that a specific, reasonable accommodation would have allowed her to perform the essential functions of her job.  We have viewed the evidence in the light most favorable to Taylor, as we must on summary judgment. The school district is, of course, free to argue at trial that it did not receive notice of Taylor's request for accommodation, that it tried to assist Taylor in seeking accommodations, or, assuming the school district was responsible for the breakdown in the process, that no accommodation would have allowed Taylor to perform the essential functions of her job. And as we discussed in an earlier section above, the school district can also contest whether Taylor is disabled while on medication

Walton v. Mental Health Ass'n of Southeastern Pennsylvania, 168 F.3d 661 (1999).  The court found that the employer did not perceive discharged employee as disabled because of her obesity. The employer's unwillingness to extend plaintiff's unpaid leave which exceeded the requirement of reasonable accommodation under the ADA did not give her a cause of action.

Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778 (1998).  Court reversed district court grant of summary judgment for employer. Court held that the lower court could not resolve at summary judgment the question whether plaintiff's impairment substantially limited him in the major life activity of working. In that determination, the court must examine the individual's situation without accommodation. The mere fact plaintiff can continue in his job with accommodation does not necessarily mean he is not disabled. Court also held that a person who is adjudged not to have a disability may assert a retaliation claim.

Menkowitz v. Pottstown Memorial Medical Center, 154 F.3d 113 (1998).  Physician, with attention –deficit disorder, who was not an employee of defendant hospital, was allowed to bring claim under Title III of the ADA against defendant for denial of staff privileges at defendant hospital.

Ford v. Schering-Plough Corp., 145 F.3d 601 (1998).  Court held that an insurance plan which provided a two-year cap for mental disabilities but not physical disabilities did not violate the ADA.

Matczak v. Frankford Candy and Chocolate Co., 136 F.3d 933 (1997).  An individual with epilepsy who controls his condition with medication could maintain an action under the ADA without showing he satisfied his employer's expectations nor showing non-disabled employees received favorable treatment. District court's grant of summary judgment for employer was reversed and case remanded .

Krouse v. American Sterilizer Co., 126 F.3d 494 (1997).  An individual's status as a qualified individual with a disability is not relevant in assessing that person's claim for retaliation under the ADA.

Olson v. General Elec. Astrospace, 101 F.3d 947 (1996).  Plaintiff failed to show he was disabled under the ADA. However, district court's grant of summary judgment for employer was reversed because there was a material fact as to whether the employer perceived plaintiff to be disabled and thus a member of a protected class.

Lawrence v. National Westminster Bank New Jersey, 98 F.3d 61 (1996).  Court reversed district court's grant of summary judgment against plaintiff. Court found that plaintiff presented sufficient evidence to support an inference he was terminated not for cause but for his disability.

Kelly v. Drexel University, 94 F.3d 102 (1996). Court found plaintiff who had fractured his hip leaving him with a noticeable limp was not disabled under the ADA because he was not substantially limited in the major life activity of walking. Court also held that the mere fact that an employer is aware of an employee's impairment is insufficient to demonstrate either that the employer regarded the employee as disabled or that that perception caused the adverse employment action.

McNemar v. The Disney Store, Inc., 91 F.3d 610 (1996). Plaintiff was fired for taking money from cash register. At time of discharge he disclosed he was HIV positive. Employer did not change its mind on the discharge. Plaintiff claim under the ADA was dismissed. He was discharged in November, 1993. He filed for social security disability benefits as well as SSI stating he was totally disabled as of October 1, 1993. He also had a student load forgiven for total disability. Court held because he claimed total disability he was not otherwise qualified under the ADA.

Antol v. Perry, 82 F.3d 1291 (1996).  District courts grant of summary judgment for defendant on 504 reversed and remanded because plaintiff presented sufficient evidence of pretext from which a fact finder could infer discrimination.

Juvelis by Juvelis v. Snider, 68 F.3d 648 (1995).  Court found that the Department of Public Welfare discriminated against plaintiff, a severely retarded individual, in violation of 504 by requiring intent to establish domicile. Defendant argued that although plaintiff was present in Pennsylvania, he lacked the mental capacity to form an intent to remain there. Court found that plaintiff had, within his limited ability to do so, expressed a subjective attachment to Pa. Furthermore, defendant failed to prove that a modification of its policy would be unduly burdensome.

McDonald v. Com. of Pa., Dept. of Public Welfare, Polk Center, 62 F.3d 92 (1995).   Plaintiff was not disabled under the ADA because her condition was transient and nonpermanent. She was a probationary employee who took sick leave for surgery.

Wagner by Wagner v. Fair Acres Geriatric Center, 49 F.3d 1002 (1995).  Court found that Rehabilitation Act applies to nursing homes receiving federal funds. County operated intermediate care nursing facility could have cared for a woman suffering from Alzheimer's disease if it made reasonable accommodations.

Helen L. v. DiDario, 46 F.3d 325 (1995).  Defendant violated ADA by requiring plaintiff receive required care services in the segregated setting of a nursing home rather than through an attendant care program in her own home.

Easley by Easley v. Snider, 36 F.3d 297 (1994).  Court held that the Pennsylvania Attendant Care Services Act which requires that qualified persons be not only physically handicapped but also mentally alert does not violate the ADA's non-discriminatory provisions.

Kinney v. Yerusalim, 9 F.3d 1067 (1993).  Court held that resurfacing of city street was alteration, requiring installation of curb ramps to comply with regulations promulgated under ADA and when Philadelphia undertook to resurface street, accompanying curbs were no longer considered existing facilities, subject to undue burden defense of ADA.

Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368 (1991).  Court reversed district court grant of summary judgment on 504. There were two outstanding issues of fact. Did defendant have reason to know that plaintiff's (a medical student) condition (continuing back and neck injuries) was a handicap and whether defendant provided reasonable accommodations for plaintiff's handicap.

Americans Disabled for Accessible Public Transp. (ADAPT) v. Skinner, 881 F.2d 1184 (1989).  Court held that defendants decision not to implement mainstreaming, but rather to allow local transit authorities to use either accessible buses, paratransit, or mixed systems was reasonable and defendant's regulation creating a 3% cost cap as a safe harbor, regardless of the level of service provided by transit authorities to the disabled was arbitrary and capricious.

Strathie v. Department of Transp., 716 F.2d 227 (1983).  Plaintiff's class 4 license which permitted him to be employed as a school bus driver was suspended because he wore a hearing aid. Plaintiff sued under 504 and district court judgment against plaintiff. Court of Appeals vacated the district court's judgment finding that the evidence did not support the court's conclusion that no wearer of stereo hearing aids can localize sound as well as a normal person. The court further stated that the correct issue in the record was whether there was a factual basis reasonable demonstrating that accommodating a wearer of a stereo hearing aid would present an appreciable risk to the safety and control of school bus passengers if permitted to drive school buses.

Le Strange v. Consolidated Rail Corp., 687 F.2d 767 (1982).  Court held that individuals had a private cause of action under 504.