LYNCH, Circuit Judge. Zenaida Garc�a-Ayala appeals an order granting summaryjudgment for her former employer, Lederle Parenterals, Inc., in a suit that allegeswrongful termination and demands injunctive relief and compensatory and punitivedamages under the Americans with Disabilities Act. See Garc�a-Ayala v. LederleParentals, Inc., 20 F. Supp. 2d 312, 313 (D.P.R. 1998). The district court held thatGarc�a was not a “qualified individual” under the Act because the accommodation sherequested from her employer was not “reasonable.” See id. at 315. We reverse anddirect entry of judgment for the plaintiff. I. The parties stipulated to the following facts. Garc�a worked for LederleParenterals, Inc. as a secretary from October 1983 to June 13, 1996, when heremployment was terminated. Most recently, she was the only clerical employee in thecompany’s Validation Department. Lederle’s disability benefits program provides that an employee may receive up tofourteen continuous weeks of salary continuation and then short-term disabilitybenefits (STD) at sixty percent of full salary. Under the plan, an employee could beabsent from work for a twenty-six week period, work another two weeks, and then beout for an additional twenty-six weeks for the same disability. During heremployment at Lederle, Garc�a used the salary continuation and short-term disabilitybenefits on fourteen separate occasions, in addition to her sick leave. Lederle hada policy of reserving a job for one year when employees had been out on STD. Itapplied that policy and terminated Garc�a’s employment after her one-yearreservation period ended. Since 1986, Garc�a has been stricken with breast cancer and has undergone severalrounds of surgery and chemotherapy. From March 15, 1987 to September 16, 1987, shewas absent from work for 184 days as a result of a modified radical mastectomy.During this period, she received salary continuation benefits for fourteen weeks,and then short-term disability for the remainder. From September 1987 until 1993 shewas back at work. Six years later, in August 1993, a biopsy revealed adenocarcinomaof the breast, infiltrating duct type, persistent, and, as a result, Garc�a wasabsent for 115 days. She then returned to work. In December 1994, Garc�a was diagnosed with adenocarcinoma of the breast,metastatic. On March 17, 1995, she underwent surgery to remove a nodule in her neck.Before that surgery, Garc�a used up her sick leave and was absent from work for atotal of eighty-eight and a half hours. Following surgery, she received short-termdisability benefits for thirty-four consecutive days. In May, she took an additionalforty-six hours of leave. From June 9 through 25, 1995, she received salarycontinuation benefits in relation to the medical condition. Sometime after her surgery, Garc�a saw a television report on a bone marrowtransplant procedure that offered a treatment for her cancer. She was interviewed bydoctors in June 1995 and Garc�a informed Lederle in July that she needed to undergothis procedure, which was only available at a Chicago hospital. From August 7through 20, 1995, she was absent due to chemotherapy (for which she took nineteenhours sick leave and short-term disability). From September 13 through 27, 1995, shewas again absent due to treatment (eight hours sick leave/fifteen days of short-termdisability). In October 1995, Garc�a took eleven and one-half hours of sick leave. Garc�a was hospitalized for the bone marrow treatment on November 14, 1995. Shereceived STD payments until March 19, 1996. As of that date, she started receivinglong-term disability (LTD). Lederle did not consider her to be an employee once shewas on LTD. On April 9, 1996, doctors certified to Lederle that Garc�a would be ableto return to work on July 30, 1996. On June 10, 1996, Lederle’s Human Resources Director, Aida Margarita Rodr�guez,called Garc�a at home and asked her to come to work to meet with her. Garc�acomplied and Rodr�guez notified her that the company deemed her disability to havebegun in March 1995, that her one-year period for job reservation had elapsed inMarch 1996, and that her employment was terminated. Garc�a asked that her job bereserved until July 30th, when her doctors expected her to return to work, but to noavail. On June 13th, Lederle sent Garc�a a letter confirming her conversation withRodr�guez and denying her request for additional leave. As it turned out, although Garc�a had requested an accommodation until July 30th, itwas on August 22, 1996 that Garc�a’s doctors released her for work, though they didnot notify Lederle of this and Garc�a did not re-apply for employment. Garc�a’s essential job functions did not go unfilled. At least three differenttemporary employees provided by agencies performed Garc�a’s tasks at Lederle duringher medical leave and after her dismissal. Indeed, from June 13, 1996, to January31, 1997, a period of over seven months from Garc�a’s dismissal, the company choseto use temporary employees. The company says her position was never filled by apermanent employee. There was no evidence that the temporary employees cost Lederleany more than Garc�a would have or that their performance was in any wayunsatisfactory. II. On May 16, 1997, Garc�a brought suit against Lederle, its parent companies, AmericanHome Products Corp. and American Cynamid Co., and others for alleged violations ofthe ADA and Puerto Rico Act No. 44 of July 2, 1985, P.R. Laws Ann. tit. 1, �� 501 etseq., as a result of the termination of her employment following surgery for breastcancer. She seeks back pay, reinstatement (or “front pay”), injunctive relief fromfuture discrimination, compensatory and punitive damages, and attorney’s fees. OnMarch 30, 1998, the parties submitted a stipulation of material facts together witha Motion Submitting Stipulation of Uncontested Material Facts and LegalControversies. On September 28, 1998, the court granted Lederle’s cross-motion forsummary judgment, denied Garc�a’s motion for summary judgment, declined to exerciseits supplemental jurisdiction over Garc�a’s claim under Act 44, and dismissed thecase. See Garc�a-Ayala, 20 F. Supp. 2d at 313
[FOOTNOTE 2] Garc�a appeals. III. There is some disagreement as to what happened at the trial court and, resultantly,as to the standard of review to be applied by this court on an appeal from summaryjudgment entered after cross-motions. Citing Reich v. John Alden Life Insurance Co.,126 F.3d 1, 6 (1st Cir. 1997), and United Paperworkers International Union, Local 14v. International Paper Co., 64 F.3d 28, 31 (1st Cir. 1995), both Lederle and Garc�ahave argued that clear-error review should apply to the factual inferences made bythe district court since the decision below was based on stipulated facts and madeon cross-motions for summary judgment.
[FOOTNOTE 3] But see Wightman v. Springfield TerminalRy. Co., 100 F.3d 228, 230 (1st Cir. 1996) (“Cross motions for summary judgmentneither alter the basic Rule 56 standard, nor warrant the grant of summary judgmentper se.”). The EEOC, appearing as amicus curiae urges de novo review, the customary standardfor appellate review of summary judgment. The district court opinion in thisjury-claimed case does not discuss whether there was a waiver of jury trial rightsor a stipulation under Federal Rule of Civil Procedure 39(a)(1),
[FOOTNOTE 4] or whether it wasresolving the matter on a jury-waived and a “case stated” basis or on conventionalsummary judgment; the order entered was for summary judgment (although the opiniononce used the phrase “The Court finds”). Out of the confusion, we think it wise toreiterate a few basics. For the purposes of standard of appellate review in these circumstances, there isusually a distinction between non-jury and jury cases. This circuit, in UnitedPaperworkers, held that: [i]n a nonjury case, when the basic dispute between the parties concerns only thefactual inferences that one might draw from the more basic facts to which theparties have agreed, and where neither party has sought to introduce additionalfactual evidence or asked to present witnesses, the parties are, in effect,submitting their dispute to the court as a case stated. Id. (internal quotation marks omitted) (emphasis added). We have reached the sameresult in other non-jury cases. See Reich, 126 F.3d at 6; EEOC v. Steamship ClerksUnion 1066, 48 F.3d 594, 603 (1st Cir. 1995); Continental Grain Co. v. Puerto RicoMaritime Shipping Auth., 972 F.2d 426, 429-30 & n.7 (1st Cir. 1992); Boston FiveCents Savings Bank v. Secretary of the Dep’t of Housing & Urban Dev., 768 F.2d 5,11-12 (1st Cir. 1985); Federaci�n de Empleados del Tribunal Gen. de Justicia v.Torres, 747 F.2d 35, 36 (1st Cir. 1984); cf. Posadas de Puerto Rico, Inc. v. Radin,856 F.2d 399, 400-01 (1st Cir. 1988) (same where only one side moved for summaryjudgment). In such cases, “[t]he standard for appellate review . . . shifts from denovo review to clear-error review; that is, the district court’s factual inferencesshould be set aside only if they are clearly erroneous.” United Paperworkers, 64F.3d at 31. This rule evolved from — and makes sense in — bench trial cases. See 10A CharlesAlan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure� 2720, at 338-39 (1998) (referring to this practice in non-jury cases). Instead ofexpending time and money on a trial, the parties may decide that the pre-trialrecord establishes all the necessary grounds upon which a judge may enter a finalruling on one or all of the issues in dispute. See, e.g., Allen v. United MineWorkers 1979 Benefit Plan & Trust, 726 F.2d 352, 353 (7th Cir. 1984). They are, inessence, skipping trial and proceeding directly to judgment, submitting the case tothe judge as stated.
[FOOTNOTE 5] When determining whether this was the path taken by the parties in non-jury cases,this circuit and others inquire into the intentions of the parties and the districtcourt judge, as evidenced by the record on appeal
[FOOTNOTE 6] See United Paperworkers, 64F.3d at 31-32 & n.2; see also, e.g., Sherwood v. Washington Post, 871 F.2d 1144,1147 n.4 (D.C. Cir. 1989); Wolfe v. United States, 798 F.2d 1241, 1243 n.2 (9thCir.), amended on other grounds, 806 F.2d 1410, 1411 (9th Cir. 1986); Donovan v.Dialamerica Marketing, Inc., 757 F.2d 1376, 1381-82 (3d Cir. 1985); EEOC v. MaricopaCounty Community College Dist., 736 F.2d 510, 512-13 (9th Cir. 1984); SatelliteTelevision & Associated Resources, Inc. v. Continental Cablevision of Va., Inc., 714F.2d 351, 354 (4th Cir. 1983); Wilson v. Block, 708 F.2d 735, 745 n.7 (D.C. Cir.1983); Crow v. Gullet, 706 F.2d 856, 858 & n.3 (8th Cir. 1983); Lac Courte OreillesBand v. Voigt, 700 F.2d 341, 349 (7th Cir. 1983); Toney v. Bergland, 645 F.2d 1063,1066 (D.C. Cir. 1981) (per curiam); Nielsen v. Western Elec. Co., 603 F.2d 741, 743(8th Cir. 1979); Vetter v. Frosch, 599 F.2d 630, 632-33 (5th Cir. 1979); U.S.Manganese Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 576 F.2d 153, 156(8th Cir. 1978); United States v. Fred A. Arnold, Inc., 573 F.2d 605, 606-07 (9thCir. 1978) (per curiam); United States v. Articles of Device Consisting of ThreeDevices . . . “Diapulse”, 527 F.2d 1008, 1011 (6th Cir. 1976); Starsky v. Williams,512 F.2d 109, 112 (9th Cir. 1975); Tripp v. May, 189 F.2d 198, 199-200 (7th Cir.1951). See generally Edward J. Brunet, Martin H. Redish, & Michael A. Reiter,Summary Judgment: Federal Law and Practice � 8.01, at 232-34 (1994); William W.Schwarzer, Alan Hirsch, & David J. Barrans, The Analysis and Decision of SummaryJudgment Motions 40-41 (1991). Jury trial cases are treated differently. This court, like nearly all other courts,has refused to make the “case stated” inquiry when one of the parties has requestedtrial by jury. See United Paperworkers, 64 F.3d at 31 (specifying that the casestated inquiry is limited to non-jury cases); see also Winter v. Minnesota MutualLife Ins. Co., 199 F.3d 399, 405-08 (7th Cir. 1999) (same); Colan v. Mesa PetroleumCo., 951 F.2d 1512, 1517-18 (9th Cir. 1991) (same); Satellite Television, 714 F.2dat 354 (same); Tripp, 189 F.2d at 200 (same); cf. Transworld Airlines, Inc. v.American Coupon Exch., Inc., 913 F.2d 676, 684-85 (9th Cir. 1990) (similar whereonly one side moved for summary judgment); Nunez v. Superior Oil Co., 572 F.2d 1119,1124 (5th Cir. 1978) (same).
[FOOTNOTE 7] Thus, unsurprisingly, we have reviewed judgmentsbased on cross-motions for summary judgment in jury trial cases de novo. See, e.g.,Den norske Bank AS v. First Nat’l Bank, 75 F.3d 49, 53 (1st Cir. 1996). The distinction between bench and jury trials is appropriate since the right to ajury trial is constitutionally protected and casual waivers are not to be presumed.See U.S. Const. amend. VII; Fed. R. Civ. P. 38(d); Winter, 199 F.3d at 407 n.11;Indiana Lumbermens Mutual Ins. Co. v. Timberland Pallet & Lumber Co., 195 F.3d 368,374 (8th Cir. 1999); Jennings v. McCormick, 154 F.3d 542, 545 (5th Cir. 1998);LaMarca v. Turner, 995 F.2d 1526, 1544 (11th Cir. 1993); Tray-Wrap, Inc. v. Six L’sPacking Co., 984 F.2d 65, 67-68 (2d Cir. 1993); Mondor v. U.S. Dist. Ct. for theCent. Dist. of Cal., 910 F.2d 585, 587 (9th Cir. 1990). But application of these principles to this case is not straightforward, and wedecide the issue of standard of review here under two different doctrines: FederalRule of Civil Procedure 39(a)(1) and waiver. We determine that Garc�a agreed,pursuant to Rule 39(a)(1), that the issues of liability presented for the purposesof the summary judgment cross-motions could be determined by the court, in light ofthe stipulation filed that “the parties . . . submit the material facts in thismatter to the Court for adjudication on the merits on the legal controversies inthis matter.” Further, plaintiff has urged upon us a clear error standard of review.Although at oral argument plaintiff’s counsel said she did not intend to waive herjury trial right, she did not brief this issue on appeal and so she is bound. SeePiazza v. Aponte Roque, 909 F.2d 35, 37 (1st Cir. 1990); Fed. R. App. P. 28(a). Inlight of the wording of the stipulation, together with the fact that Garc�a, onappeal, has said that review is for clear error (and not de novo), we treat this,for present purposes, as an appeal from a determination after a Rule 39(a)(1)consent. Consequently, we proceed as if the parties submitted the case to thedistrict court judge as stated, and review of the determination of the districtcourt is for clear error. IV. Garc�a claims that Lederle violated the ADA when the company fired her after sherequested additional leave supplemental to her sick and disability leave. Section102(a) of the ADA states: “No covered entity shall discriminate against a qualifiedindividual with a disability because of the disability of such individual in regardto . . . discharge of employees . . . .” 42 U.S.C. � 12112(a). Lederle’s primarydefense at summary judgment was that Garc�a was not a qualified individual becausethe accommodation she sought was not reasonable
[FOOTNOTE 8] Lederle offered no evidence orargument that the requested accommodation was an undue hardship. In fact, Lederle’sappellate argument is inconsistent with its factual stipulation that Garc�a’sposition was terminated because her one-year period of leave had expired. That wasthe reason the company gave in its letter of termination to Garc�a
[FOOTNOTE 9] The company’sapparent position that the ADA can never impose an obligation on a company to grantan accommodation beyond the leave allowed under the company’s own leave policy isflatly wrong under our precedent. See, e.g., Ralph v. Lucent Techs., Inc., 135 F.3d166, 171-72 (1st Cir. 1998). The district court order ignored the position stated inthe record by the company and went instead to the issue of the reasonableness of theaccommodation. To establish an ADA claim, a plaintiff must prove by a preponderance of theevidence: first, “that she was disabled within the meaning of the Act; second, . . .that with or without reasonable accommodation she was a qualified individual able toperform the essential functions of the job; and third, . . . that the employerdischarged her because of her disability.” Criado v. IBM Corp., 145 F.3d 437, 441(1st Cir. 1998); accord Feliciano v. Rhode Island, 160 F.3d 780, 784 (1st Cir.1998); Soto-Ocasio v. Federal Express Corp., 150 F.3d 14, 18 (1st Cir. 1998).
[FOOTNOTE 10] Theparties focus on the second of these three elements. Both the EEOC and Garc�a arguethat the district court erroneously shifted the burden as to this factor. In order to be a “qualified individual” under the Act, the burden is on theemployee
[FOOTNOTE 11] to show: first, that she “possess[es] ‘the requisite skill, experience,education and other job-related requirements’ for the position, and second, [thatshe is] able to perform the essential functions of the position with or withoutreasonable accommodation.” Criado, 145 F.3d at 443 (quoting 29 C.F.R. � 1630.2(m));see also 42 U.S.C. � 12111(8); Cleveland v. Policy Mgmt. Sys. Corp., 119 S. Ct.1597, 1603 (1999). There is no question here as to the first of these twoprerequisites. The court correctly stated that “it is [the] plaintiff’s burden toprove that, at the time she sought to resume her job, she had the ability to performthe essential functions of secretary to the Validation Department.” Garc�a-Ayala, 20F. Supp. 2d at 314. But the statute also places the burden on the defendant to showthat an accommodation would be an undue hardship. See 42 U.S.C. � 12112(b)(5)(A)(stating that the term “discriminate” includes “not making reasonable accommodationsto the known physical or mental limitations of an otherwise qualified individualwith a disability who is an . . . employee, unless such covered entity candemonstrate that the accommodation would impose an undue hardship on the operationof the business of such covered identity”). The court also went on to say, “[o]f course, an essential function of any job is theability to appear for work.” Id. (citations omitted). The court then held thatGarc�a’s request for additional leave (until July 30, 1996) “was not reasonableunder the circumstances” because “defendants had no guarantee that the additionalleave requested was for a definite period of time and ‘[n]othing in the text of thereasonable accommodation provision requires an employer to wait an indefinite periodfor an accommodation to achieve its intended effect.’” Id. at 315 (quoting Myers v.Hose, 50 F.3d 278, 283 (4th Cir. 1995)). The court also found that, although “somesituations might mandate unpaid leave of absence as an appropriate accommodation,” afive-month job reservation, “in excess of established policy[,] place[s] theemployer in an untenable business position.” Garc�a-Ayala, 20 F. Supp. 2d at 315.The district court, in our view, committed two types of errors. A. Individualized Assessment It appears from the court’s statements that it was applying per se rules, and notgiving the type of individual assessment of the facts that the Act and the case lawrequires. The Supreme Court has deemed “essential” individualized attention todisability claims. See School Bd. v. Arline, 480 U.S. 273, 287 (1987). As we said inCriado, “[w]hether [a] leave request is reasonable turns on the facts of the case.”Criado, 145 F.3d at 443; see also Kennedy v. Dresser Rand Co., 193 F.3d 120, 122 (2dCir. 1999). It is simply not the case, under our precedent that an employee’srequest for an extended medical leave will necessarily mean, as the district courtsuggested, that the employee is unable to perform the essential functions of herjob. First, the court did not focus on the employer’s statement that the reason that itterminated Garc�a was because her medical leave period, under company policy, hadexpired. The court essentially found that a requested accommodation of an extensionof a leave on top of a medical leave of fifteen months was per se unreasonable. Butreasonable accommodations may include “job restructuring, part-time or modified workschedules, . . . and other similar accommodations for individuals withdisabilities.” 42 U.S.C. � 12111(9)(B). This court and others have held that amedical leave of absence — Garc�a’s proposed accommodation — is a reasonableaccommodation under the Act in some circumstances. See Criado, 145 F.3d at 443-44;Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999); Cehrs, 155 F.3dat 782 (citing Criado); Haschmann v. Time Warner Entertainment Co., 151 F.3d 591,601 (7th Cir. 1998); Rascon v. U S West Communications, Inc., 143 F.3d 1324, 1333-34(10th Cir. 1998). Our concern that the court applied per se rules — rather than an individualizedassessment of the facts — is heightened by other statements. Here, the leave thatGarc�a requested on June 10 was for less than two months. The district court viewedthe request as being for five months, since Rodriguez had advised Garc�a, albeit inJune, that a one-year period for job reservation had lapsed in March. Even if therequest were for an additional five months of unpaid leave, we see no reason toadopt a rule on these facts that the additional medical leave sought would be per sean unreasonable accommodation. Well after her termination, as well as during hermedical leave, Lederle filled Garc�a’s secretarial position with individuals hiredfrom temporary agencies. Lederle had no business need apparent from this record toreplace Garc�a with an in-house hire, and hence would not have suffered had itwaited for several more months until Garc�a’s return. In Ralph v. LucentTechnologies, Inc., 135 F.3d 166, 171-72 (1st Cir. 1998), the court held that afour-week additional accommodation, beyond a fifty-two week leave period for mentalbreakdown, was reasonable for purpose of a preliminary injunction. The districtcourt’s statement that the employer was left in an “untenable business position”also reinforces the sense of the use of per se rules and the lack of focus on thefacts of this case, given that the employer put on no evidence of undue hardship.
[FOOTNOTE 12] Similarly, the court viewed Garc�a’s requested accommodation — additional leavetime with a specific date for return — as a request that her job be held openindefinitely. Lederle had argued that since Garc�a’s doctor could not give absoluteassurances that she would be fit to return to work on July 30th, the request was perse for an indefinite leave and so was unreasonable. Garc�a specified, however, whenshe would return, and her doctor released her for return several weeks thereafter.There is no evidence that either July 30th or the August 22nd date of medicalrelease, would have imposed any specific hardship on Lederle. Some employees, by thenature of their disability, are unable to provide an absolutely assured time fortheir return to employment, but that does not necessarily make a request for leaveto a particular date indefinite. Each case must be scrutinized on its own facts. Anunvarying requirement for definiteness again departs from the need for individualfactual evaluation.
[FOOTNOTE 13] See Haschmann, 151 F.3d at 599-600; Criado, 145 F.3d at443-44; Rascon, 143 F.3d at 1333-34; Kimbro v. Atlantic Richfield Co., 889 F.2d 869,878-79 (9th Cir. 1989) (interpreting analogous state statute). Of course, that aleave is not indefinite does not make it reasonable. Even short leaves may inflictundue hardship in a given employment situation, and there may be requested leaves solengthy or open-ended as to be an unreasonable accommodation in any situation. B. Reasonable Accommodation and Undue Hardship The parties requested that the court determine the issue of liability on the basisof the facts before it. While the burden of showing reasonable accommodation is onthe plaintiff,
[FOOTNOTE 14] this is a case in which the employer did not contest thereasonableness of the accommodation except to embrace a per se rule that any leavebeyond its one-year reservation period was too long. The employer, Lederle, has theburden of proof on the issue of undue hardship, and it did not put on any evidenceof undue hardship from Garc�a’s proposed accommodation. See Ward v. MassachusettsHealth Research Institute, Inc., No. 99-1651, 2000 WL 361660 (1st Cir. Apr. 12,2000) (reversing summary judgment in an ADA case where the employer had produced noevidence of undue hardship). While on different facts, a request for an extended leave could indeed be too longto be a reasonable accommodation and no reasonable factfinder could concludeotherwise, that is not this case for a number of reasons. It does not appear thatGarc�a expected to be paid for the additional weeks away from work beyond thoseallowed under the employer’s disability benefits program and while her job functionswere being performed by temporary help. There is no evidence that the temporaryemployees were paid more than Garc�a or were less effective at her job than she.Indeed, Lederle’s continued use of temporary employees and Lederle’s failure toreplace Garc�a indicates the contrary. There was, therefore, no financial burden onthe employer from paying an employee who was not performing. It is true that anemployer usually needs to have the functions of a job filled, and the fact thatessential functions have gone unfilled for a lengthy period could well warrantjudgment for an employer. But here, the essential functions of the job were filled,to all indications satisfactorily, by temporary employees. The use of temporaryemployees is not, of course, always a satisfactory or even a possible solution. Buthere, there is no evidence that Lederle was under business pressure to fill the slotwith another permanent employee (indeed, it never did). In other situations,temporary replacements may be unavailable or unsuited to the position; here, theavailable evidence is all to the contrary. In addition, as said, there is noevidence that the cost of the temporary help was greater than the cost of apermanent employee; one might suppose it was less. Thus, the requested accommodationof a few additional months of unsalaried leave, with the job functions beingsatisfactorily performed in the meantime, is reasonable. The employer presented the court with no evidence of any hardship, much less unduehardship. On this record, we see no basis for the court to do other than enterjudgment for Garc�a. Under the EEOC guidelines, 29 C.F.R. � 1630.2(p), factors to beconsidered as to undue hardship include the cost of the accommodation, the effect onexpenses and resources, the impact of the accommodation on the operation of thefacility (including on other employees’ ability to do their jobs) and the impact onthe facility’s ability to conduct business. On this record there is no discerniblenegative impact on any of these factors; indeed, the record shows hardly anydiscernable impact at all on the employer from the requested accommodation. As itwas the employer’s burden to produce evidence of hardship, we hold that it must bearthe responsibility for the absence of such evidence here. We stress that the Act does not require employers to retain disabled employees whocannot perform the essential functions of their jobs without reasonableaccommodation. Applying this rule to the prolonged disability leave situation istricky, however. An absent employee obviously cannot himself or herself perform;still, the employer may in some instances, such as here, be able to get temporaryhelp or find some other alternative that will enable it to proceed satisfactorilywith its business uninterrupted while a disabled employee is recovering. Insituations like that, retaining the ailing employee’s slot while granting unsalariedleave may be a reasonable accommodation required by the ADA. If, however, allowingthe sick employee to retain his or her job places the employer in a hardshipsituation where it cannot secure in some reasonable alternative way the services forwhich it hired the ailing employee, and yet is blocked from effecting a rehire, theADA does not require the retention of the disabled person. Hence, where it isunrealistic to expect to obtain someone to perform those essential functionstemporarily until the sick employee returns, the employer may be entitled todischarge the ill employee and hire someone else. An exception to this might be ifthe requested disability leave was so brief that no undue business harm couldreasonably be expected to occur from not filling the vacancy. We add that ouranalysis, while applicable to these facts, may not be applicable in other cases.Undue hardships are not limited to financial impacts; the term includesaccommodations that are unduly extensive, substantially disruptive, or that wouldfundamentally alter the nature or operation of the business. See 29 C.F.R. pt. 1630,App. Other factors to be considered as to whether requests for leaves of absenceunreasonable include, for example: where the employee gave no indication as to whenshe might be able to return to work, and, instead, she simply demanded that her jobbe held open indefinitely, see, e.g., Taylor v. Pepsi-Cola Co., 196 F.3d 1106, 1110(10th Cir. 1999); Watkins v. J & S Oil Co., 164 F.3d 55, 62 (1st Cir. 1998) (citingMyers); Corder v. Lucent Techs. Inc., 162 F.3d 924, 928 (7th Cir. 1998); Duckett v.Dunlop Tire Corp., 120 F.3d 1222, 1226 (11th Cir. 1997) (per curiam); Rogers v.International Marine Terminals, Inc., 87 F.3d 755, 759-60 (5th Cir. 1996); where theemployee’s absences from work were “erratic” and “unexplained,” see, e.g., Waggonerv. Olin Corp., 169 F.3d 481, 484-85 (7th Cir. 1999); where, upon the employee’sreturn to work, she would be unqualified, see, e.g., Tyndall v. National Educ.Ctrs., Inc., 31 F.3d 209, 213-14 (4th Cir. 1994); and where the employee was hiredto complete a specific task, see, e.g., Stubbs v. Marc Ctr., 950 F. Supp. 889,893-95 (C.D. Ill. 1997). Cf. generally Micari v. Trans World Airlines, Inc., 43 F.Supp. 2d 275, 281-82 (E.D.N.Y. 1999) (collecting cases); Powers v. Polygram Holding,Inc., 40 F. Supp. 2d 195, 199-201 (S.D.N.Y. 1999) (same). In addition, this courthas inquired into whether the company had made earlier policy decisions that it wasmore profitable to permit an employee additional leave than to hire and train a newemployee. See Criado, 145 F.3d at 444. These are difficult, fact intensive, case-by-case analyses, ill-served by per serules or stereotypes. We emphasize that the stipulated record here contains noevidence whatever of any form of hardship to Lederle as a result of the requestedaccommodation. Were this not so, we would feel obligated to return the case to afactfinder for further evaluation. But given the employer’s failure to meet, evenminimally, its burden of proof on the issue of hardship, we award judgment to Garc�aas a matter of law. V. We reverse the entry of judgment in favor of Lederle, direct entry of judgment onliability under the ADA for Garc�a, and remand the case for further proceedings inaccordance with this opinion. So ordered. Costs to appellant. – Dissent Follows - O’TOOLE, District Judge, dissenting. After criticizing the district court fordeciding this case as a matter of law, the majority then does exactly the samething. Holding that, on the facts presented to the district court, the plaintiff’srequest for leave from her job
[FOOTNOTE 15] was a reasonable accommodation under the Americanswith Disabilities Act (“ADA”), 42 U.S.C. �� 12101 et seq., the court directs theentry of a judgment as to liability in favor of the party with the burden of proof.Besides invading the province of fact-finding without warrant, the court’s rulingexpands the reach of the ADA beyond what its language should properly be understoodto authorize. I respectfully dissent. I. The plaintiff’s illness caused her to have several substantial periods of absencefrom work over the course of her employment with the defendant. She was able to beabsent and yet remain employed by taking advantage of a combination of employeebenefits, including sick leave and short-term disability leave. It appears from the record that the last time she actually worked was in November,1995. Beginning in late November, in order to undergo a bone marrow transplant, shebegan a period of short-term disability leave which apparently expired in March,1996. Still recuperating, she then began to receive long-term disability benefitsunder her employer’s plan. In June, the employer notified her that the one-yearperiod for reservation of her job — that is, her right to return to her job fromdisability status — had also expired in March.
[FOOTNOTE 16] She asked for a further extensionof the reservation of her right to return to work for a few weeks, but her requestwas denied and her employment was formally terminated. The court now holds that her request for an extension must be considered a”reasonable accommodation” of her disability which the employer was bound to affordher under the ADA unless the employer could demonstrate that doing so would cause itundue hardship. Since the employer proffered no evidence of undue hardship, thecourt concludes that the plaintiff is entitled to judgment in her favor as toliability. II. The plaintiff may be entitled to a remedy under the ADA if she is a “qualifiedindividual with a disability.” She is a “qualified individual with a disability” ifshe has the requisite skill and experience for the position, which is undisputedhere, and if she is able to “perform the essential functions of the employmentposition” “with or without reasonable accommodation.” See 42 U.S.C. � 12111(8); seealso Criado v. IBM Corp., 145 F.3d 437, 443 (1st Cir. 1998). There is no dispute that when Garc�a’s employment was terminated, she was not ableto perform her job without an accommodation. She was not then performing it, and hadnot performed it for some months. Nonetheless, the court concludes that theplaintiff would have been “qualified” to perform her job with the accommodation sherequested: that she be excused from performing the job until she had recoveredsufficiently to be able to return to work once again. When a period of leave from a job may appropriately be considered an accommodationthat enables an employee to perform that job presents a troublesome problem, partlybecause of the oxymoronic anomaly it harbors, but also because of the dauntingchallenge of line-drawing it presents. The prevailing view among the Courts ofAppeals, and the law of this Circuit, is that a period of leave can in somecircumstances be a reasonable accommodation required of an employer under the ADA.See Criado, 145 F.3d at 443. Put another way, it is wrong to say categorically thatleave can never be a reasonable accommodation. The term “leave” is a capacious one, however, and the cases do not hold thatany leave will qualify as a reasonable accommodation. See Walsh v. United ParcelServ., 201 F.3d 718, 726-27 (6th Cir. 2000) (finding leave requested by plaintiff”objectively unreasonable”). “Reasonable accommodation” is also a capacious term,purposefully broad so as to permit appropriate case-by-case flexibility. Whether aparticular proposed leave is a reasonable accommodation must be answered in thefactual context of the case at hand. See, e.g., Criado, 145 F.3d at 443 (“Whetherthe leave request is reasonable turns on the facts of the case.”). Where manyinterrelated considerations bear on an assessment of what is “reasonable,” prudencecautions against too ready a resort to summary dispositions as a matter of law. SeeWard v. Massachusetts Health Research Inst., No. 99-1651, 2000 WL 361660, at *6 (1stCir. Apr. 12, 2000) (reversing summary judgment; declining to hold accommodationunreasonable per se); Nunes v. Wal-Mart Stores, 164 F.3d 1243, 1248 (9th Cir. 1999)(reversing summary judgment because reasonableness of leave was jury question);Cehrs v. Northeast Ohio Alzheimer’s Research Ctr., 155 F.3d 775, 782-85 (6th Cir.1998) (following Criado and reversing summary judgment for employer); Criado, 145F.3d at 444 (affirming denial of employer’s motion for judgment as a matter of law).In any context, however, to be a “reasonable accommodation” a measure must be bothan “accommodation” and “reasonable.” In the first place, an “accommodation” must serve a functional purpose; it is ameans to a desired end. An accommodation as contemplated by the ADA is a measurethat enables the performance of a job by a person who, without the measure, isdisabled from performing the job. See 42 U.S.C. � 12111(9). It effectivelytransforms a disabled person into an enabled person for the purposes of the job. The converse follows. If the measure does not enable the otherwise disabled personto perform the essential functions of the job, it loses its functional quality andconsequently fails to operate as an accommodation. An accommodation must not only be functionally effective; it must also bereasonable.
[FOOTNOTE 17] Again, whether a proposed accommodation is reasonable or not willordinarily be judged on the peculiar facts of a given case. In most cases, it willbe a matter to be left to assessment and evaluation by the trier of fact. Nonetheless, judges may sometimes be called upon to decide what circumstances mightmake a proposed measure a reasonable accommodation, or not, as a matter of law. SeeWalsh, 201 F.3d at 726-27 (affirming grant of summary judgment in favor of employerbecause plaintiff’s requested accommodation was “objectively unreasonable”); seealso Evans v. Federal Express Corp., 133 F.3d 137, 139-40 (1st Cir. 1998) (affirmingsummary judgment, and holding that, under state law, accommodation not shown likelyto be successful was not reasonable). There is hazard in trying to speak too broadlyor too categorically, especially in this area where the varieties of potentialaccommodations, and the reasons why any given accommodation might or might not bereasonable, are myriad. Still, there will be cases in which a court mayappropriately take the question away from the trier of fact and decide it as amatter of law. III. As the court’s opinion points out, there is some ambiguity in this record as towhether the parties presented the case to the district court for judgment as amatter of law or for decision on the court’s fact-finding. They presented astipulation of undisputed facts and cross-moved for summary judgment. If nothingelse appeared, one would conclude that they were seeking only a ruling of law. Butthe parties’ stipulation indicated that they were submitting the liability portionof the case “to the Court for adjudication on the merits of the legal controversiesin this matter.” “Adjudication on the merits” ordinarily suggests more than summaryjudgment. Unlike a full consideration of a case after trial, summary judgment doesnot always end in an adjudication, because even on cross-motions based on stipulatedfacts, a court might conclude that neither side is entitled to win as a matter oflaw and that the dispute must be submitted to the fact-finder. The full job of thefact-finder, after all, includes not only settling conflicts in the “basic” facts,but also drawing appropriate inferences from those facts. By praying foradjudication on the merits, the parties indicated that they expected the districtcourt to resolve the factual, as well as legal, issues pertinent to the issue ofliability. Any lingering doubt as to what the parties intended is dispelled by what they havetold us. Both sides asserted in their briefs to us that the applicable standard ofappellate review is “clear error,” the standard used to review fact-finding by adistrict court. Thus, both before the district court and before this court, theparties presented the matter as having been submitted as a “case stated” for full”adjudication” by the district court. Moreover, the district court’s opinion indicates, consistently with the parties’characterization, that the judge thought he was not merely policing the fact-findingfunction under Rule 56, but instead was performing it. In posing the issue he waspresented with, he said,”[T]he Court must therefore determine whether plaintiff’srequested accommodation was reasonable under the circumstances . . . .” Garc�a-Ayalav. Lederle Parenterals, Inc., 20 F. Supp. 2d 312, 315 (D.P.R. 1998). He then wenton, “The Court finds that plaintiff’s request was not reasonable under thecircumstances.” Id. (emphasis added). Accordingly, I am in agreement with the court’s conclusion stated in Part III of itsopinion that the parties submitted the matter as a “case stated” and that review ofthe district court’s fact-finding is for clear error
[FOOTNOTE 18] Reich v. John Alden LifeIns. Co., 126 F.3d 1, 6 (1st Cir. 1997); EEOC v. Steamship Clerks Union, Local 1066,48 F.3d 594, 603 (1st Cir. 1995). The “clear error” standard applies not only toresolution of factual disputes, but also to the factual inferences drawn by thedistrict court on the basis of the stipulated facts. Id. On the record presented and under an appropriate application of the statute’sterms, a fact-finder’s inference-based conclusion that the plaintiff’s request foran extension of her right to return to work was not a reasonable accommodationcannot be called clearly erroneous. The clearly erroneous standard does not permitan appellate court to substitute its own evaluative judgment of what was or was notreasonable, unless the district court’s conclusion was unquestionably, not justarguably, wrong. If the same facts that were presented to the judge below had beenpresented to a jury, and if the jury had returned a verdict that the requested leavewas not a reasonable accommodation, I cannot imagine that this court would disturbthat finding. IV. Rather than challenging the district court’s fact-finding as clearly erroneous, themajority identifies two legal errors it says the district court committed. First,the court says the district court failed to give individualized consideration to theplaintiff’s case, but instead decided that the plaintiff’s request for additionalleave was per se unreasonable. Second, the court says that the district courtimproperly shifted the burden of proof as to “undue hardship” by requiring theplaintiff to disprove it, rather than requiring the employer to establish it. The second purported error, I think, stems from an incorrect reading of the districtcourt opinion. The issue argued by the parties, and the issue decided by thedistrict court, was whether the plaintiff was a qualified person with a disability.In particular, resolution of that issue depended on whether the plaintiff’s requestfor further leave was a reasonable accommodation. The employer did not argue unduehardship. Though the district court opinion does state that granting theaccommodation would place the employer “in an untenable business position,”Garc�a-Ayala, 20 F. Supp. 2d at 315, in context that phrase was used not as anelaboration of the “undue hardship” affirmative defense, but as part of the court’sexplication of why, in the district court’s judgment, the requested accommodationwas not reasonable. I do not think it is accurate to say that the district court wasgiving the employer the benefit of the “undue hardship” affirmative defense, orshifting to the plaintiff the burden to disprove that affirmative defense. The other error the majority finds is that the district court applied a per se ruleabout the permissible length of a leave and, therefore, failed to make anindividualized assessment of the case. I must say I do not quite understand thiscriticism. I do not find any indication in the district court’s opinion that itfailed to give attention to the particulars of the case. To the contrary, thedistrict court discussed in detail the facts of the case as presented by theparties; it gave no less attention to the “individualized” facts of the case thanthe parties did. The majority cannot mean that the need for individualized assessment of an ADA casenecessarily precludes a disposition as a matter of law, because this court hasaffirmed dispositions of ADA cases as a matter of law. See, e.g., Tardie v.Rehabilitation Hosp., 168 F.3d 538 (1st Cir. 1999); Feliciano v. Rhode Island, 160F.3d 780 (1st Cir. 1998). And the majority certainly cannot mean that the need forindividualized assessment always requires submission of the matter for decision bythe trier of fact, because, after all, the court’s disposition now orders entry ofjudgment for the plaintiff as a matter of law, without submission to the trier offact. The more pertinent question is, if the district court decided the case by making apure ruling of law as the majority apparently asserts, rather than by applying thelaw to the facts and the permissible inferences it drew from them, was its rulingincorrect? Specifically, did the district court err in holding (if it did) that norational fact-finder could conclude that the extension of leave requested by Garc�awas a reasonable accommodation under the ADA?
[FOOTNOTE 19] I would conclude that on theparticular facts of this case, such a ruling would not have been an error. The leave extension requested by the plaintiff was not a reasonable accommodation asa matter of law because it was not an accommodation at all as that term ought to beunderstood. To be an accommodation, the requested leave would have to do what anaccommodation under the ADA must do — enable the employee to perform the essentialfunctions of her job. To put it in terms of the EEOC’s proposed definition of”reasonable accommodation,” Garc�a’s requested leave would not have been”effective.” It seems to me that the following proposition can be extrapolated from the cases:For a proposed period of leave to constitute an effective accommodation, it mustmeet at least two conditions. First, it must be instrumental to effect or advance achange in the employee’s disabled status with respect to the job, so that theemployee is enabled to do it. A period of leave would meet this criterion if itpermitted the employee to receive therapy or treatment that would succeed inremoving the obstacle to employment the particular disability posed. In Criado, forexample, the court noted that the employee’s physician believed that “the leavewould ameliorate her disability.” 145 F.3d at 444. Similarly, an EEOC interpretiveguideline suggests that leave “for necessary treatment” could be a reasonableaccommodation, 29 C.F.R. pt. 1630, app., and the Department of Labor advises thatleave might be a reasonable accommodation “when the disability is of a nature thatit is likely to respond to treatment.” 29 C.F.R. pt. 32, app. A(b). Simply thepossibility of improvement is not enough, however; the recovery must be reasonablylikely. See Evans, 133 F.3d at 140 (construing similar state statute). Further, theprospect of recovery (or enablement) should be judged not by hindsight, but by whatreasonably appears at the time the leave is requested. Id. Second, the employee’s return to work must be relatively proximate in a temporalsense. The cases do not speak with one voice on this subject, and some give littleattention to it, except to imply that the temporal element will figure in the jury’sassessment of reasonableness. Although there seems to be general agreement that aleave period cannot be indefinite, the leave periods that have been explicitly orimplicitly approved vary in length. Some variation is not inappropriate; that isconsistent with the need to evaluate each case on its particular facts. In the end, however, the leave must not only be one that serves a proper medicalpurpose; it must also be one that serves the statutory purpose, which is to enablethe employee to perform the essential functions of her job. Cf. Evans, 133 F.3d at140 (construing similar state statute). It cannot be overlooked that the statutespeaks in the present tense, indicative mood. A “qualified individual with adisability” entitled to the statute’s protection is a person who “can perform theessential functions of the employment position” with reasonable accommodation. 42U.S.C. � 12111(8) (emphasis added). “Can perform,” as in “now.” I would not contendthat the statute requires literally instantaneous effectiveness of an accommodation.By approving the idea that some leaves might qualify as reasonable accommodations,courts, including this one, have properly rejected such a cramped and unrealisticreading of the statute. However, fidelity to both the language and purpose of thestatute requires that the time within which the proposed accommodation accomplishesits intended purpose — enabling the employee to perform the job — must be suchthat the accommodation is tolerably consistent with the statutory words, “canperform.” I would conclude that the plaintiff did not carry her burden of proffering evidencethat the leave she requested was “effective” in these two essential ways. She askedthat the employer abide her continued recuperation for an additional period, but sheoffered little — essentially an unelaborated prognostic estimate — that wouldenable an objective assessment either of the realistic prospect of recovery as ofthe time of the request or of the likely duration of her absence. Further, I do notthink the requested leave could legitimately be said to be an accommodation enablingher, more or less contemporaneously, to perform the essential functions of the job.It may have given her an opportunity to become able again a couple of months downthe road, but that is something that this statute, properly construed, does notaddress. Before she began her most recent disability leave in November, 1995, Garc�a wasperforming her job without accommodation. As of late August, 1996, she hadapparently recovered and was able again to perform her job without accommodation.Between November and late August, she was not able to work. The requested leavewould not have changed that. It would not have made her able to work when she wasunable, and when she was able again, it was unnecessary. In point of fact, it wouldhave had no effect on her actual ability to work. What it would have affected wasthe employer’s ability to terminate her employment because she could not work.Restricting an employer’s ability to terminate an employee who is unable to work canbe a legitimate object of legislative regulation,
[FOOTNOTE 20] but that is not the objectiveof the statute we are considering. It does not diminish the importance or value ofthe ADA to conclude that it does not solve all problems, and in particular that itdoes not solve the problem of protecting job security for employees who need anextended absence from the workplace for medical reasons. Our obligation is to construe and apply the statute as it was written, sensibly andconsistently, so that, among other things, both employers and employees willunderstand what it requires and what it does not. Discharging that obligation willoccasionally call for rulings that deny relief to plaintiffs such as Garc�a who haveendured extraordinary personal hardship. We make such rulings when necessary inevery area of the law, and if called on we should not shy from the obligation inthis area as well, without regard to our views as to whether the plaintiff was nottreated particularly well by her long-time employer or whether the ADA ought tocontain a provision it does not. V. Even if I were to agree with the majority that the district court had not reachedits conclusion as an adjudicator of fact and law, but rather had improperly ruledthat Garc�a’s requested accommodation was unreasonable as a matter of law, I wouldnevertheless disagree with the court’s disposition. First, it should be plain from what I have already said that I do not agree that therequested leave was so clearly a reasonable accommodation that no rationalfact-finder could conclude otherwise. Whether the opinion says it in so many wordsor not, that is certainly the substance of its disposition. If the district courterroneously ruled as a matter of law, the proper disposition of this case would beto vacate the judgment for the employer and send the case back for trial by afact-finder. (I would not hold either side to the waiver of jury trial madepreviously.) Second, the court’s opinion gives inappropriate weight to the employer’s ability toreplace Garc�a with a temporary employee during her absence from the workplace. Ihave two problems with it. To begin with, it is an inquiry more pertinent to theaffirmative defense of “undue hardship,” which was not argued by the employer orconsidered by the district court. As the court notes, ante, at 19 n.13, there isconsiderable debate about the relationship between the concepts of reasonableaccommodation and undue hardship, and I eagerly agree with the court that this casedoes not call for us to weigh in on that subject. Since the “undue hardship” defensewas not argued or resolved below, I would leave it alone. More fundamentally, the court’s opinion morphs the meaning of the statute bysuggesting that an accommodation that permits the employer, without hardship, tohire someone else to perform the essential functions of the job is equivalent to anaccommodation that permits the disabled employee to perform the essential functionsof the job. Again, such a provision might be an appropriate feature of a statutemandating leave policies, but it is not a fitting part of a statute that forbids jobdiscrimination against disabled persons by requiring employers to accept them asworkers when — preconceptions, stereotypes, and “usual” business practices aside –they are able to do the job. VI. For these reasons, except as to the court’s conclusion about the nature of theproceedings below, I respectfully disagree with the reasoning and dissent from thedisposition set forth in the court’s opinion. :::FOOTNOTES:::
FN1 Of the District of Massachusetts, sitting by designation.
FN2 The correct name of the lead defendant in this case is “Lederle Parenterals, Inc.” and not “Lederle Parentals, Inc.,” as thedistrict court opinion is captioned.
FN3 The parties made a joint “Motion Submitting Stipulation of Uncontested Material Facts and Legal Controversies,” andclaimed “[t]here being no genuine controversy as to the material facts in this matter, the parties stipulate the same, and submitthe material facts to the Court for adjudication on the merits of the legal controversies in this matter.”
FN4 At oral argument on appeal, counsel for Garc�a disavowed any intent not to have a jury trial. But that may have been astatement as to trial on damages, once the district court ruled on liability, and thus consistent with the position in counsel’s briefon the standard of review.
FN5 In these non-jury cases, problems arise for appellate courts when the record is unclear that this is what the parties and thetrial judge meant to do. Consequently, when a claim is made on appeal that the case below was decided as a “case stated,”appellate courts invariably look quite carefully at the proceedings in the trial court to make sure that the parties had “willinglyforegone their right to a full trial.” Acuff-Rose Music, Inc. v. Jostens, Inc., 155 F.3d 140, 143 (2d Cir. 1998).
FN6 Some circuits require “explicit waiver” of trial. Acuff-Rose Music, Inc. v. Jostens, Inc., 155 F.3d 140, 142-43 (2d Cir.1998); see also Miller v. LeSea Broad., Inc., 87 F.3d 224, 230 (7th Cir. 1996); May v. Evansville-Vanderburgh Sch. Corp.,787 F.2d 1105, 1115-16 (7th Cir. 1986).
FN7 We note that cross-motions for summary judgment, in and of themselves, do not constitute waiver of jury trial. See Winter,199 F.3d at 407-08; Miller, 87 F.3d at 230; Market St. Assocs. Ltd. Partnership v. Frey, 941 F.2d 588, 590 (7th Cir. 1991);John v. Louisiana, 757 F.2d 698, 705 (5th Cir. 1985). We have found only two cases that have applied the clearly erroneous standard ofreview to jury trial cases decided on cross-motions for summary judgment. SeeSouthwest Forest Indus., Inc. v. Westinghouse Elec. Corp., 422 F.2d 1013, 1017-18(9th Cir. 1970); Gillespie v. Norris, 231 F.2d 881, 883-84 (9th Cir. 1956). But cf.Page v. Work, 290 F.2d 323, 334 (9th Cir. 1961) (per curiam) (upon rehearing,reversing, in a jury trial case, earlier finding that the case had been submitted onthe record).
FN8 Lederle’s argument ignores our case law that “[a]lthough the qualificationanalysis could be understood to subsume the concept of reasonable accommodation, wethink it analytically sounder to treat the two topics separately.” EEOC v. Amego,Inc., 110 F.3d 135, 141 (1st Cir. 1997).
FN9 Citing Duckworth v. Pratt & Whitney, Inc., 152 F.3d 1 (1st Cir. 1998), Lederleclaims that no relief may be granted to Garc�a because she did not seekreinstatement. As is evident from a reading of that opinion, Duckworth does notstand for that proposition.
FN10 Lederle’s argument that there was no intent to discriminate based on disabilitymisses the important point that the ADA does more than prohibit disparate treatment.It also imposes an affirmative obligation to provide reasonable accommodation todisabled employees. See Soileau v. Guilford of Me., Inc., 105 F.3d 12, 14-15 (1stCir. 1997).
FN11 In Feliciano, we said that “[t]he plaintiff, as the party who must prove that heor she can perform the essential functions of the position with or withoutreasonable accommodation, bears the burden of showing the existence of a reasonableaccommodation.” Feliciano, 160 F.3d at 786 (citing Barnett v. U.S. Air, Inc., 157F.3d 744, 748-49 (9th Cir. 1998)).
FN12 Perhaps, alternatively, the statement was only hyperbole.
FN13 The approach urged by Lederle on the district court also ignores “[t]he duty toprovide reasonable accommodation is a continuing one . . . and not exhausted by oneeffort.” Ralph v. Lucent Technologies, Inc., 135 F.3d 166, 171-72 (1st Cir. 1998).It is an interactive process that “requires a great deal of communication betweenthe employee and employer.” Criado, 145 F.3d at 444 (internal quotation marks andcitation omitted); see also Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 693(7th Cir. 1998) (describing the interactive process); Jacques v. Clean-Up Group,Inc., 96 F.3d 506, 515 (1st Cir. 1996) (“There may well be situations in which theemployer’s failure to engage in an informal interactive process would constitute afailure to provide reasonable accommodation that amounts to a violation of theADA.”). Here, Lederle failed to engage in the informal, interactive process. Itsimply rejected the request for the accommodation without further discussion and itdid so without pointing to any facts making the accommodation harmful to itsbusiness needs.
FN14 We are aware of, but see no reason to join, the debate in the circuits on therelationship between the two concepts of undue hardship and reasonableaccommodation. Compare Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138-39 (2dCir. 1995); Walton v. Mental Health Assoc., 168 F.3d 661, 670 (3d Cir. 1999); andStone v. City of Mount Vernon, 118 F.3d 92, 98-99 (2d Cir. 1997); with Benson v.Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir. 1995); and White v. YorkInt’l Corp., 45 F.3d 357, 361 (10th Cir. 1995); and with Barth v. Gelb, 2 F.3d 1180,1186 (D.C. Cir. 1993); Willis v. Conopco, Inc., 108 F.3d 282, 285-86 (11th Cir.1997); Barnett v. U.S. Air, Inc., 157 F.3d 744, 748-49 (9th Cir. 1998), amended by196 F.3d 979, 989 (9th Cir. 1999), and withdrawn pending en banc review, 201 F.3d1256 (9th Cir. 2000); Riel v. Electronic Data Sys. Corp., 99 F.3d 678, 682-83 (5thCir. 1996); Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1183, 1186 n.12(6th Cir. 1996); and Vande Zande v. Wisconsin Dept. of Admin., 44 F.3d 538, 542-43(7th Cir. 1995).
FN15 The court describes the plaintiff’s request as one for a period of leave. I havesome doubt as to whether that is the best way to describe her request that her jobreservation rights be extended longer than the normal period. I am content, however,to accept the court’s characterization for the purposes of this discussion.
FN16 It does not appear that the plaintiff challenged that calculation either at thetime or in her suit. The employer asserts without contradiction that its one-yearjob reservation period was equal to the period guaranteed under Puerto Rican law.
FN17 The EEOC as amicus argues that a reasonable accommodation is one that is”feasible” and “effective.” EEOC Br. at 14, 16. It seems to me that view gives shortshrift to the modifier. “Feasible and effective” could be a shorthand way ofexpressing the functionality necessary to make the measure an accommodation. Theinclusion of the modifier indicates that the measure must not only be “feasible andeffective,” i.e. functional, but “reasonable” to boot.
FN18 Of course, any purely legal rulings are subject to de novo review.
FN19 The district court expressly recognized that a leave may qualify as a reasonableaccommodation in some circumstances. Garc�a-Ayala, 20 F. Supp. 2d at 315. It isclear, therefore, that it did not rule that a period of leave could never be areasonable accommodation, and thus the ruling is not in direct conflict with any ofour precedents.
FN20 Congress has addressed the problem in the Family and Medical Leave Act, 29U.S.C. �� 2601 et seq. Whether it has done so sufficiently is not for ourconsideration, at least on this occasion.
Garcia-Ayala v. Lederle Parenterals, Inc. United States Court of Appeals For the First Circuit No. 98-2291 ZENAIDA GARC�A-AYALA,Plaintiff, Appellant, v. LEDERLE PARENTERALS, INC., ET AL., Defendants, Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Juan M. Perez-Gimenez, U.S. District Judge] Before Lynch, Circuit Judge, Campbell, Senior Circuit Judge, and O’Toole, District Judge.
[FOOTNOTE 1] Carlos M. Vergne Vargas, with whom Limeres, Vergne & Duran was on brief, forappellant. Graciela J. Belaval, with whom Martinez, Odell & Calabria was on brief, forappellees. Barbara L. Sloan, with whom C. Gregory Stewart, General Counsel, Philip B. Sklover,Associate General Counsel, Vincent J. Blackwood, Assistant General Counsel, and JodiB. Danis, Attorney, were on brief, for amicus curiae Equal Employment OpportunityCommission. May 18, 2000
