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An employer cannot win summary judgment in an employment discrimination suit under the Americans with Disabilities Act if the worker makes a showing that the employer failed to make a good-faith effort to engage in an “interactive process” when he requested an accommodation, a federal judge has ruled. In his 31-page opinion in Kennelly v. Pennsylvania Turnpike Commission, U.S. District Judge Eduardo C. Robreno of the Eastern District of Pennsylvania refused to dismiss a suit brought by a man who said he developed a panic disorder during his first week on the job as an emergency response worker because the PTC ignored his pleas for additional medical training and was poised to send him out on patrols alone. PTC’s lawyers — Mark A. Aronchick and Michael Lieberman of Philadelphia-based Hangley Aronchick Segal & Pudlin — argued that Michael Kennelly’s suit should be tossed out since he was not qualified to perform the essential functions of the job he was hired for, and PTC therefore was not obligated to make any accommodations for him. But Kennelly’s lawyers — Gregg L. Zeff and Denise M. Mandi of Frost Szymanski & Zeff — argued that the only reason Kennelly is now unable to do the job is the panic disorder that was caused by PTC’s refusal to give him additional training before assigning him to work on his own. PTC argued that Kennelly’s request for additional training during his first and only week on the job cannot be construed as a request for reasonable accommodation because neither Kennelly nor PTC at that time identified the request as one related to a disability. Robreno disagreed, finding that since Kennelly’s request for training came just a few days before his emotional breakdown, a jury must decide the factual issue of whether a reasonable accommodation was ever requested. “Given the temporal proximity of Mr. Kennelly’s requests for additional training and the fact that his perceived lack of training caused his breakdown, there is an factual issue as to whether his request for training constituted a request for a reasonable accommodation,” Robreno wrote. Under ADA case law, Robreno said, a plaintiff does not lose merely because he failed to request a specific accommodation or made a request for an accommodation that was not possible. “The interactive process, as its name implies, requires the employer to take some initiative,” Robreno wrote. Under ADA regulations, Robreno said, the interactive process “should identify the precise limitations resulting from the disability and the potential reasonable accommodations that could overcome those limitations.” The 3rd Circuit, Robreno said, “has held that it ‘would make little sense to insist that the employee must have arrived at the end product of the interactive process before the employer has a duty to participate in that process’ particularly because the employer often holds more information about what other positions are available or what adjustments are feasible in the employee’s current position.” According to court papers, Kennelly was hired in March 1999 as an emergency response worker in the maintenance department. In the position, Kennelly was required to respond to emergencies on the turnpike and render emergency medical care, assisting with traffic control, removal of debris from the roadway, highway patrolling and routine janitorial duties. Completion of American Red Cross Emergency Response and CPR Professional Rescue training programs was a prerequisite for the job. But Kennelly claims he was concerned that he did not have the medical or emergency responder training. On his first day, he claims that he told his boss that he lacked hands on experience in responding to medical emergencies. Kennelly says he was told not to worry because he would be trained and paired up with an experienced worker, according to court documents. On the job, Kennelly said he warned his supervisor and co-worker that he needed additional training since there was equipment on the emergency response vehicle that he did not know how to use, such as oxygen canisters and helicopter landing equipment, court documents reveal. Again, Kennelly says, he was simply told not to worry. Soon after, he says, his fears grew worse when he was told that he would be patrolling on his own when he reported for his second week, court records state. With that news, Kennelly claims his fears became paralyzing anxieties that made it impossible to return to work. His wife testified that over the course of the first week, Kennelly rarely ate and hardly slept; that he paced around the house; that he hid under the covers; and that he started shaking and nervously looking at the clock when it came time to go to work. By the weekend, Kennelly’s symptoms had worsened, and his wife took him to an emergency room where a doctor diagnosed him as suffering from work-related anxiety, suicidal thoughts and hallucinations, and ordered that he take at least a week off from work. Kennelly’s wife testified that she informed PTC officials the next day of the diagnosis and asked that her husband be transferred to an equipment operator position in which he would not be required to respond to emergencies. A psychiatrist later diagnosed Kennelly as suffering from panic disorder and wrote a letter to PTC that recommended placing Kennelly in a less stressful job. But PTC decided that Kennelly could not be transferred to another post since the only openings were positions that were covered by different bargaining units and the collective bargaining agreements barred such transfers. PTC also determined that Kennelly was not even entitled to an accommodation in the form of a transfer since he was still a probationary employee and was unable to do the job he had been hired for. Ultimately, Kennelly was fired for inability to perform the duties of his job. Now Robreno has ruled that PTC is not entitled to summary judgment because PTC cannot prove that it made a good-faith effort to engage in an interactive process after the requests made by Kennelly’s wife and psychiatrist for a reasonable accommodation. “Once Mr. Kennelly made his requests for a reasonable accommodation, the Commission did not do any additional research or inquire into Mr. Kennelly’s condition or participate in any discussions with Mr. Kennelly as to how he might be accommodated,” Robreno wrote. Under PTC’s own ADA procedures, a consultant should have sent Kennelly’s doctor an accommodation request form, a medical information release and an ADA information request form to assist PTC in assessing his disability and determining whether an accommodation was feasible. But Robreno found none of the forms was ever sent “because the Commission had already made a determination that Mr. Kennelly was not qualified.” PTC also failed to look into any other feasible positions for Kennelly or attempt to contact him or his wife to discuss the possibilities of an accommodation, Robreno found. “In light of Mr. Kennelly’s earlier requests for additional training, communication with Mr. Kennelly, or even Mrs. Kennelly, was an important part of the interactive process,” Robreno wrote.

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