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The 3rd U.S. Circuit Court of Appeals has once again dodged a vexing question under the Americans with Disabilities Act that has divided the federal circuits — whether a plaintiff who claims he was “regarded as” disabled has the right to sue over the denial of a reasonable accommodation. In Buskirk v. Apollo Metals, the 3rd Circuit found it was unnecessary to answer the question since the plaintiff was rehired into the first available position that met his doctor’s limitations, and the employer had therefore provided a reasonable accommodation. So far, the 5th, 6th, and 8th circuits have held that “regarded as” employees are not entitled to reasonable accommodations. But the 1st Circuit has held that “regarded as” employees are entitled to reasonable accommodations. Williard Buskirk’s case at first appeared to be the vehicle that would force the 3rd Circuit to answer the question. In two previous cases, the 3rd Circuit had dodged it, albeit with strong hints offered in dicta. But now the 3rd Circuit has ruled that the facts of Buskirk’s case made it unnecessary for the court to weigh in with its opinion on whether so-called “regarded as” plaintiffs are entitled to sue over an employer’s alleged refusal to provide an accommodation. “Here, viewing the evidence in the light most favorable to Buskirk, we agree with the district court that a reasonable jury could not have found that Apollo Metals did not reasonably accommodate Buskirk,” 3rd Circuit Judge Dolores K. Sloviter wrote. Sloviter, in an opinion joined by 3rd Circuit Judges Jane R. Roth and Theodore A. McKee, found that “because Apollo Metals has reinstated Buskirk and no longer misperceives his medical condition, we see no need for any additional remedies.” The question presented in Buskirk’s appeal didn’t need to be answered, Sloviter said, because “whether or not Apollo Metals was required to provide Buskirk with a reasonable accommodation, it did so and Buskirk’s challenge under the ADA fails.” According to court papers, Buskirk was hired as a laborer in 1981, but suffered a work-related injury in 1996 that left him unable to perform his previous job. In his suit, Buskirk conceded that he did not meet the ADA’s definition of “disabled,” but instead claimed that Apollo “regarded” him as disabled. As a result, Buskirk claimed the company violated the ADA when it failed to accommodate him by considering him for several posts that became vacant. The suit went to trial, but U.S. District Judge J. Curtis Joyner, of the Eastern District of Pennsylvania, dismissed the case soon after the plaintiff rested, holding that, as a matter of law, a “regarded as” plaintiff is not entitled to an accommodation. On appeal, Buskirk’s lawyers, Thomas More Holland and Jeffrey Campolongo, argue Joyner erred in dismissing the suit because the purpose of the ADA is to punish employers for making assumptions based on stereotypes that are not truly indicative of a worker’s abilities. Campolongo urged the 3rd Circuit to follow the 1st Circuit’s decision in Katz v. City Metal Co. that allows “regarded as” plaintiffs to seek reasonable accommodations. But Apollo’s lawyer, Larry J. Rappoport of Stevens & Lee, argued that the 3rd Circuit has already suggested in dicta that it will follow the lead of the 5th, 6th and 8th circuits — and the “overwhelming majority” of the federal district courts — which have all held that a “regarded as” plaintiff cannot sue for a reasonable accommodation. In Deane v. Pocono Medical Center, Rappoport said, the 3rd Circuit said there was “considerable force” to the argument that a plaintiff who is merely regarded as disabled cannot claim to be entitled to an accommodation for a disability he himself concedes does not exist. Rappoport said the Deane court also warned that if such claims were allowed, healthy employees could demand changes in their work environments based on nothing more than the misperceptions of their employers. In Monday’s decision, Sloviter found that the question can be put off for yet another day. Instead of tackling a question that need not be answered, Sloviter found that Buskirk’s appeal failed for a simpler reason. Since the facts of the case showed that Buskirk had received a reasonable accommodation — whether or not he was legally entitled to it — Sloviter found that Judge Joyner correctly decided not to submit the issue to the jury.

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