Jeanette Colwell v. Rite Aid Corporation, d/b/a RITE AID

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4675
JEANETTE COLWELL,
Appellant
v.
RITE AID CORPORATION, d/b/a RITE AID;
SUSAN CHAPMAN
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 3-07-cv-00502)
District Judge: Honorable James M. Munley
Argued December 15, 2009
Before: SLOVITER, JORDAN, and WEIS, Circuit Judges.
(Filed: April 8, 2010)
_____
Cynthia L. Pollick (Argued)
The Employment Law Firm
363 Laurel Street
Pittston, PA l8640
Attorney for Appellant

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Rite Aid notes that Colwell has incorrectly identified it in1
the caption as “Rite Aid Corporation d/b/a Rite Aid.”
2
Brian P. Downey
Pepper Hamilton LLP
100 Market Street
P.O. Box 1181, Suite 200
Harrisburg, PA l7l08
Amy G. McAndrew (Argued)
Pepper Hamilton LLP
899 Cassatt Road
400 Berwyn Park
Berwyn, PA l9312
Attorneys for Appellees
Paula R. Bruner (Argued)
Equal Employment Opportunity Commission
131 N. Street, N.E,
Rm. 5NW14R
Washington, DC 20507
Attorney for Amicus Appellant
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Jeanette Colwell, a former part-time retail clerk at a Rite
Aid store in Pennsylvania, appeals from the District Court’s
order granting summary judgment for the appellee, Rite Aid of
Pennsylvania, Inc. (“Rite Aid”), in Colwell’s suit claiming1
disability discrimination.
I.

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There is some disagreement among the briefs about the2
sequence of events and what happened. Because the District Court
decided this case on summary judgment, we consider the facts in
the light most favorable to Colwell. E.I. DuPont de Nemours &
Co. v. United States, 508 F.3d 126, 132 (3d Cir. 2007).
3
Background2
Sometime in April 2005, Colwell was hired as a cashier at
the Rite Aid store in Old Forge, Pennsylvania at the rate of $5.25
per hour. Because of her personal preferences, her available
hours were 9 a.m. to 2 p.m. or 5 p.m. to 9 p.m. Although the
shifts that she worked varied, most were for weekdays from 5
p.m. to 9 p.m. During her employment at Rite Aid, Colwell was
recognized by her superiors for good performance.
In the summer of 2005, Colwell was diagnosed with
“retinal vein occlusion and glaucoma in her left eye,” and
eventually became blind in that eye. Colwell v. Rite Aid Corp.,
No. 3:07cv502, 2008 WL 4748226, at *1 (M.D. Pa. Oct. 27,
2008). Although able to see out of her right eye and to perform
her duties at work, in mid-September 2005 Colwell informed her
supervisor Susan Chapman that her partial blindness made it
dangerous and difficult for her to drive to work at night. Colwell
claims, and Rite Aid does not dispute, that public transportation
was not an option for her because bus service ended at 6 p.m.
and there were no taxis. Nonetheless, Chapman told Colwell
that she would not be assigned only to day shifts because it
“wouldn’t be fair” to the other workers. App. at 188.
Sometime in late September or early October, Colwell
sent Chapman a note from her doctor stating “I recommend
[that] Mrs. Jeanette Colwell not drive at night.” App. at 434.
After receiving the note, Chapman again informed Colwell that
she was unwilling to assign Colwell exclusively day shifts.
During that conversation, Colwell told Chapman that her
“grandson will [pick her up] when he could,” App at 191, but
Colwell also claims to have said that she could not “depend on
people all the time,” App at 191. Indeed, although Colwell did

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4
not miss a day of work because of her vision loss except for
medical treatment for that condition in August 2005, she asserts
that shuttling her to and from work for night shifts created a
hardship for her family. Chapman, however, continued to
schedule Colwell for a mixture of day and night shifts.
Soon after the second conversation with Chapman,
Colwell discussed her desire to change to day shifts with Ken
Karasek, her union representative. Karasek then contacted
Chapman to discuss the matter. After that conversation, Karasek
called Colwell and told her that “he got nowhere” with
Chapman. App at 190. Undeterred, Karasek proposed and
scheduled a meeting between himself, Chapman and Colwell.
Karasek then failed to show up at the meeting. Sometime after,
Karasek called Colwell to explain that “he got tied up.” App. at
190. He said that “he would set up another meeting.” Id.
However, Colwell was “too fed up at the time . . . [and] decided
to write a letter of resignation and hand it in . . . [because she]
was so frustrated and angry.” App. at 190. Apparently, Karasek
never attempted to set up the meeting before Colwell resigned.
On October 12, 2005, Colwell submitted her resignation
by leaving Chapman a handwritten note that gave two weeks
notice. Colwell’s note stated: “I feel I have not been given fair
treatment. There has been prejudice against me. I have been
picked on and lies have been told about me. No one deserves
that kind of treatment.” App at 435. Neither Chapman nor
anyone else at Rite Aid responded to Colwell’s note.
A few months later, Colwell filed this lawsuit in the
United States District Court for the Middle District of
Pennsylvania against Rite Aid and Chapman. The complaint
stated the following causes of action against Rite Aid: (1)
claims under the Americans with Disabilities Act, 42 U.S.C. §§
12101, et seq. (“ADA”) and the Pennsylvania Human Relations
Act, 43 P.S. §§ 951, et seq. (“PHRA”) for failure to
accommodate Colwell’s partial blindness, for constructive
discharge, and for retaliation; and (2) claims of age
discrimination under both the Age Discrimination in
Employment Act, 29 U.S.C. §§ 621, et seq. (“ADEA”) and the

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As the District Court recognized, the same legal standard3
that applies to the ADA applies equally to disability discrimination
claims under the PHRA. Kelly v. Drexel Univ., 94 F.3d 102, 105
(3d Cir. 1996). It is similarly “proper to address [ADEA and
PHRA age discrimination claims] collectively.” Kautz v. Met-Pro
Corp., 412 F.3d 463, 466 n.1 (3d Cir. 2005). As a result we will
generally reference only the ADA and ADEA in this opinion.
5
PHRA. Colwell also asserted claims against Chapman under the
PHRA for aiding and abetting the alleged age and disability
discrimination. Following discovery, the parties filed motions
for summary judgment.
The District Court granted Rite Aid’s motion and denied
Colwell’s motion. Concerning the ADA claims, the District
Court held that Colwell’s vision problem qualified her as
disabled under the ADA. It reasoned that a reasonable juror
could so conclude from Colwell’s testimony that she “has
substantial difficulties with depth perception,” Colwell, 2008
WL 4748226, at *6, making it difficult for her to drive at night.
The Court held, however, that Colwell did not suffer any
adverse employment action cognizable under the ADA and
PHRA. More specifically, the Court granted Rite Aid summary3
judgment on Colwell’s failure to accommodate claim. The
Court noted that the parties agreed that Colwell “did not need an
accommodation to perform her job once she arrived at work.”
Id. at *9. In light of that agreement, the Court stated that “the
accommodations that [Colwell] sought had nothing to do with
the work environment or the manner and circumstances under
which she performed her work,” and thus Rite Aid “had no duty
to accommodate [Colwell] in her commute to work.” Id. In so
holding, the District Court concluded that “the ADA is designed
to cover barriers to an employee’s ability to work that exist
inside the workplace, not difficulties over which the employer
has no control,” id. at *8, and that imputing a duty to
accommodate Colwell was tantamount to “mak[ing] an employer
responsible for how an employee gets to work, a situation which
expands the employer’s responsibility beyond the ADA’s

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6
intention,” id. at *9.
The Court additionally found that Colwell “was not
constructively discharged.” Id. at *7. The Court noted that
Colwell had offered evidence that Chapman “picked on her,
forced her to work in a small, isolated area and ignored her[,] . . .
[and] made disparaging comments about [Colwell], implying
that she was slow and could not see . . . [and that Chapman] did
not allow [Colwell] to perform jobs on the store floor, unlike her
coworkers.” Id. The District Court characterized these slights as
“not rare experiences for American workers” and held that “a
juror could not conclude that a reasonable person would feel
compelled to resign under the circumstances described by
[Colwell].” Id. The court also observed that, for a constructive
discharge claim to lie, an employee must try to alleviate her
difficulties before resigning, and that Colwell quit before a
second meeting between her, Chapman, and Karasek could be
organized. Id.
The Court held that Rite Aid’s failure to reschedule
Colwell did not amount to a cognizable retaliatory action and
that, in any event, Rite Aid did not appear to take any action at
all in connection with Colwell having asked for an
accommodation. Id. at *10-11. In addition to its rejection of
Colwell’s claim based on disability, the Court granted Rite Aid
summary judgment on Colwell’s age discrimination claim
because the alleged comment by Chapman that Colwell was
“slow” and the asserted preferential treatment of younger
workers in assignments, as well as other petty slights, did not
constitute adverse action taken on account of age. Id. at *11-12.
II.
Discussion
Colwell timely appealed. She lists the following two
issues for review:
1. Whether a shift change request can be considered a
reasonable accommodation for an employee who cannot

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The District Court had jurisdiction under 28 U.S.C. §§4
1331 and 1367. This court has jurisdiction under 28 U.S.C. §
1291. The EEOC has joined Colwell in her appeal as an amicus.
7
drive at night because she is blind in one eye, which
causes depth perception problems?
2. Whether being called “slow”, picked on, not being
allowed to perform jobs like younger, less senior workers,
denied reasonable accommodation requests, and
unaddressed complaints of unfair treatment precluded the
district court from concluding, as a matter of law, that no
juror could conclude that Colwell was constructively
discharged and suffered an adverse action?
Appellant’s Br. at 2. Rite Aid responds by arguing, inter alia,
that Colwell “cannot establish either that she is disabled or that
she suffered an adverse employment action, as the result of
which plaintiff has failed to establish a prima facie case of
disability discrimination[.]” Appellee’s Br. at 1. Because the
issues Colwell presents would fail were Ride Aid correct in its
argument that she failed to establish that she is disabled, we
reach that issue first.
Our review of the District Court’s grant of summary
judgment is plenary. Horn v. Thoratec Corp., 376 F.3d 163, 165
(3d Cir. 2004). Summary judgment should be granted “if the4
pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(c)(2). “The evidence of the
non-movant is to be believed, and all justifiable inferences are to
be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986).
A. Disability
In 2005, the relevant definition of the “term ‘disability’
[was], with respect to an individual . . . a physical or mental

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We recognize that amendments to the ADA took effect on5
January 1, 2009. See ADA Amendments Act of 2008, Pub. L. No.
110-325, § 8, 122 Stat. 3553, 3559 (2008). Many of those
amendments are irrelevant here, but, among other things, Congress
did overrule Toyota Motor Manufacturing, Kentucky, Inc. v.
Williams, 534 U.S. 184, 198 (2002), referenced below. Neither
Colwell nor the EEOC argues on appeal that these amendments are
retroactive and therefore should apply in this case. We have yet to
rule on the retroactivity of the amendments, see Hohider v. United
Parcel Serv., Inc., 574 F.3d 169, 188 n.17 (3d Cir. 2009), but we
pause to note that every court of appeals decision of which we are
aware has held that the amendments are not retroactive. See
Becerril v. Pima County Assessor’s Office, 587 F.3d 1162, 1164
(9th Cir. 2009); Lytes v. DC Water & Sewer Auth., 572 F.3d 936,
942 (D.C. Cir. 2009); Thornton v. United Parcel Serv., Inc., 587
F.3d 27, 35 n. 3 (1st Cir. 2009); Milholland v. Sumner County Bd.
of Educ., 569 F.3d 562, 565 (6th Cir. 2009); EEOC v. Agro Distrib.
LLC, 555 F.3d 462, 469 n.8 (5th Cir. 2009); Fredricksen v. United
Parcel Serv. Co., 581 F.3d 516, 521 n.1 (7th Cir. 2009). In any
event, we decline to reach a determination of whether the
amendments are retroactive because, like the District Court, we
find that Colwell meets the definition of “disabled” under the
Supreme Court’s interpretation of the ADA before the 2008
amendments took effect.
8
impairment that substantially limits one or more of the major life
activities of such individual . . . .” 42 U.S.C.A. § 12102(2)5
(2005). Therefore, “to establish a statutorily protected disability,
the employee must show that she has an impairment; identify the
life activity that she claims is limited by the impairment; and
prove that the limitation is substantial.” Fiscus v. Wal-Mart
Stores, Inc., 385 F.3d 378, 382 (3d Cir. 2004) (citing Bragdon v.
Abbott, 524 U.S. 624, 631 (1998)).
There can be no doubt that Colwell’s blindness in one eye
is a physical impairment. See Albertson’s, Inc. v. Kirkingburg,
527 U.S. 555, 563 (1999); 29 C.F.R. § 1630.2(h)(i) (2005). Nor
is there any doubt that seeing is a major life activity.
Albertson’s, 527 U.S. at 563. Instead, Rite Aid argues that

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The Supreme Court’s statements regarding individuals with6
“monocular vision” included “[i]ndividuals who can see out of only
one eye . . . .” Albertson’s, 527 U.S. at 567.
9
Colwell has failed to show that her ability to see is substantially
limited by her partial blindness. More specifically, Rite Aid
argues that Colwell “has offered no evidence that the extent of
her limitation was substantial during the time that she was
working for Rite Aid” because “Colwell testified at her
deposition that her only limitation as the result of her left eye
blindness is her inability to drive at night.” Appellee’s Br. at 13.
In Toyota Motor Manufacturing, Kentucky, Inc. v.
Williams, 534 U.S. 184, 198 (2002), the Supreme Court stated
that “[i]t is insufficient for individuals attempting to prove
disability status under this test to merely submit evidence of a
medical diagnosis of an impairment.” “Instead, the ADA
requires those ‘claiming the Act’s protection . . . to prove a
disability by offering evidence that the extent of the limitation
[caused by their impairment] in terms of their own experience . .
. is substantial.’” Id. (quoting Albertson’s, 527 U.S. at 567).
“‘[S]ubstantially’ in the phrase ‘substantially limits’ suggests
‘considerable’ or ‘to a large degree,’” id. at 197 (citation
omitted), but the ADA contemplates limitations and does not
mandate that plaintiffs have “utter inabilities,” Bragdon v.
Abbott, 524 U.S. 624, 641 (1998). In fact, the Supreme Court
made clear that a monocular plaintiff’s burden to show that she
is disabled is not an “onerous” one because “people with
monocular vision ‘ordinarily’ will meet the Act’s definition of
disability.” Albertson’s, 527 U.S. at 567.6
In Albertson’s, the Supreme Court listed the following
factors as relevant to determining whether persons with
monocular vision are disabled under the ADA: “the degree of
visual acuity in the weaker eye, the age at which they suffered
their vision loss, the extent of their compensating adjustments in
visual techniques, and the ultimate scope of the restrictions on
their visual abilities.” Id. at 566. As the EEOC points out, the
record evidence is that Colwell has “no visual acuity in her left

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10
eye, . . . .that [she] was in her mid 60’s when she became blind,
and that she engaged in no compensating adjustments.” EEOC
Br. at 12. Additionally, Colwell testified that she has pressure in
her blind eye that she alleviates with prescription drops.
The District Court acknowledged that Colwell’s inability
to drive at night was probative of her limited ability to see.
Colwell, 2008 WL 4748226, at *6. Colwell testified that it was
dangerous for her to drive at night because the headlights from
other cars would confuse her and she could not tell if there was
another car next to her. Rite Aid appears to argue that Colwell’s
inability to drive at night is not relevant to her ability to see
because some courts have found that driving, and driving at
night in particular, are not major life activities. It may be that
driving and driving at night are not major life activities, but that
is not the question presented here, which is whether Colwell’s
difficulty in driving at night, and her description of why that
exercise is dangerous for her, are relevant to the extent to which
her ability to see is restricted. In Capobianco v. City of New
York, 422 F.3d 47, 58 n.7 (2d Cir. 2005), the Second Circuit
found that evidence of a plaintiff’s ability to drive at night was
relevant to his ability to see, and we agree.
The District Court gave careful consideration to Ride
Aid’s argument but held that a reasonable jury could find that
Colwell is disabled under the terms of the ADA. There is ample
evidence to support this finding. Accordingly, we reject Ride
Aid’s argument to the contrary and proceed to the issue of
constructive discharge.
B. Constructive Discharge
“We employ an objective test to determine whether an
employee can recover on a claim of constructive discharge . . . .
[and must therefore] determine whether a reasonable jury could
find that the [employer] permitted conditions so unpleasant or
difficult that a reasonable person would have felt compelled to
resign.” Duffy v. Paper Magic Group, Inc., 265 F.3d 163, 167
(3d Cir. 2001) (internal quotations and citation omitted). Factors
we have found relevant to this issue are whether the employer

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11
(1) “threatened [the employee] with discharge” or “urge[d] or
suggest[ed] that she resign or retire,” (2) “demote[d] her,” (3)
“reduce[d] her pay or benefits,” (4) “involuntarily transferred
[her] to a less desirable position,” (5) altered her “job
responsibilities,” or (6) gave “unsatisfactory job evaluations.”
Clowes v. Allegheny Valley Hosp., 991 F.2d 1159, 1161 (3d Cir.
1993). None of those circumstances existed here.
Colwell instead asserts that she was “being isolated from
other employees, [was] called slow, and [was] not . . . allowed to
perform jobs on the store floor like other . . . workers,” and that
management failed to react to her complaints. Appellant’s Br. at
12. Once again, we agree with the District Court that no
reasonable juror could find that the actions to which Colwell
refers made her workplace so unbearable that a reasonable
person would have felt compelled to resign. See Gray v. York
Newspapers, Inc., 957 F.2d 1070, 1083 (3d Cir. 1992) (“[T]he
law does not permit an employee’s subjective perceptions to
govern a claim of constructive discharge.”) (quoting Bristow v.
Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985)).
Colwell’s ipse dixit assertions that it was inconvenient for her
family to shuttle her to and from work are too vague to support a
conclusion that she was compelled to resign when she did.
Indeed, Colwell never missed a day of work, except for laser
treatments for her eyes in August 2005.
In support of its determination that Colwell had not
provided a persuasive claim of constructive discharge, the
District Court stated that because Colwell did not appeal to
higher levels of management and did not attempt to reschedule
the meeting between Chapman and the union representative, she
made no reasonable effort to explore alternatives before electing
to resign. We note that Rite Aid does not argue that Colwell
failed to engage in the interactive process required by statute
although it does note that she did not file a grievance. Colwell
argues that Ride Aid’s failure to accommodate her disability was
an adverse employment action that supports her claim of
constructive discharge. The EEOC agrees. We consider Rite
Aid’s failure to accommodate separately from her constructive
discharge claim. For the reasons set forth above, we will affirm

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In a footnote to her opening brief, Colwell asserts that her7
constructive discharge theory, if correct, would revive her
retaliation claim. Colwell, however, makes no effort to address the
District Court’s holding that none of the supposedly adverse acts
were connected to a retaliatory motive. Indeed, the act central to
the constructive discharge claim is the failure to change Colwell’s
shifts, and Rite Aid was immediate and consistent in its denial of
that accommodation. We therefore affirm the District Court’s grant
of summary judgment on Colwell’s retaliation claim.
We also note that in her opening brief Colwell relies entirely
on constructive discharge as the single adverse employment action
upon which her ADEA claim is based, and she offers only
constructive discharge and failure to accommodate as adverse
actions based on disability discrimination. Colwell has therefore
waived all other arguments. United States v. Pelullo, 399 F.3d 197,
222 (3d Cir. 2005) (“It is well settled that an appellant’s failure to
identify or argue an issue in his opening brief constitutes waiver of
that issue on appeal.”). Because we agree with the District Court
that Colwell cannot show constructive discharge, we will affirm
the grant of summary judgment on the ADEA claim.
12
the District Court’s grant of summary judgment on Colwell’s
claim of constructive discharge.7
C. Failure to Accommodate
Colwell’s principal claim, and the one emphasized by the
EEOC, is that the District Court erred in holding that Rite Aid
had no duty to accommodate her shift request. Rite Aid, in
addition to its argument that Colwell was not disabled within the
meaning of the ADA, contends that even assuming that Colwell
was disabled and that it had a duty to accommodate her, it fully
satisfied its duty to accommodate Colwell under the ADA.
To establish a prima facie case of discrimination under
the ADA, a plaintiff must show, inter alia, that she is otherwise
qualified to perform the essential functions of the job, with or

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13
without reasonable accommodations by the employer. Williams
v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751, 761 (3d Cir.
2004) (internal quotation and citations omitted). “Adverse
employment decisions in this context include refusing to make
reasonable accommodations for a plaintiff’s disabilities.” Id.
The term “‘[r]easonable accommodation’ further ‘includes the
employer’s reasonable efforts to assist the employee and to
communicate with the employee in good faith . . . .’” Id. at 761
(quoting Mengine v. Runyon, 114 F.3d 415, 416 (3d Cir. 1997)).
Rite Aid concedes that when Colwell is at work, she is
able to perform all of her duties. Therefore, the questions at
issue regarding Rite Aid’s alleged failure to accommodate are
whether Rite Aid had any duty to accommodate Colwell in her
request for a shift change, and whether Rite Aid satisfied its duty
to accommodate Colwell.
We previously noted the District Court’s discussion of
Colwell’s failure to participate in the grievance procedure
available through the company and her union. The EEOC argues
that Colwell proved all that was required to establish her claim
that Rite Aid failed to meet its statutory duty to accommodate an
employee with a disability. This court has spoken to this issue,
and has stated that: “An employee can demonstrate that an
employer breached its duty to provide reasonable
accommodations because it failed to engage in good faith in the
interactive process by showing that: ‘1) the employer knew
about the employee’s disability; 2) the employee requested
accommodations or assistance for his or her disability; 3) the
employer did not make a good faith effort to assist the employee
in seeking accommodations; and 4) the employee could have
been reasonably accommodated but for the employer's lack of
good faith.’” Williams, 380 F.3d at 772 (quoting Taylor v.
Phoenixville Sch. Dist., 184 F.3d 296, 317 (3d Cir. 1999)). The
record establishes that Chapman knew about Colwell’s disability
and that Colwell requested daytime shifts. Moreover, Chapman,
testifying that she could not have provided only day shifts,
stated, “We’re a union store, okay, and it goes by seniority, too.
Full timers were day, night, weekend; part-timers were night and
weekends.” App. at 133.

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14
Rite Aid adopts the position of the District Court that
employers are not “required to accommodate [the] inability to
commute to work independently” because “commuting to and
from work falls outside the work environment.” Appellee’s Br.
at 29. In other words, Rite Aid argues that it had no duty to even
consider changing Colwell’s shift because Colwell’s difficulties
amounted to a commuting problem unrelated to the workplace,
and the ADA does not obligate employers to address such
difficulties. We agree with the EEOC that the reach of the ADA
is not so limited. Instead, we hold as a matter of law that
changing Colwell’s working schedule to day shifts in order to
alleviate her disability-related difficulties in getting to work is a
type of accommodation that the ADA contemplates. The statute
expressly so provides.
Under the ADA, an employer discriminates against an
employee by not making “reasonable accommodations to the
known physical or mental limitations of the [employee] unless
the [employer] can demonstrate that the accommodation would
impose an undue hardship on the operation of the business of the
[employer].” Williams, 380 F.3d at 761 (internal quotations and
citations omitted). “The term ‘reasonable accommodation’ may
include – (A) making existing facilities used by employees
readily accessible to and usable by individuals with disabilities;
and (B) job restructuring, part-time or modified work schedules,
reassignment to a vacant position, acquisition or modification of
equipment or devices, appropriate adjustment or modifications
of examinations, training materials or policies, the provision of
qualified readers or interpreters, and other similar
accommodations for individuals with disabilities.” 42 U.S.C. §
12111(9)(B) (2005) (emphasis added).
As the EEOC points out, the accommodations listed in §
12111(9)(B) are not exclusive and specifically contemplate
workplace accessability. Indeed, Congress acknowledged that
“modified work schedules can provide useful accommodations”
and noted that “persons who may require modified work
schedules are persons with mobility impairments who depend on
a public transportation system that is not currently fully
accessible.” H.R. Rep. No. 101-485(II), at 62-63 (1990),

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Notably, in Gile v. United Airlines, Inc., 213 F.3d 365, 3688
(7th Cir. 2000), the court upheld a jury’s verdict that United
Airlines violated the ADA by not changing the shift of a woman
whose severe insomnia rendered her unable to perform the
functions of her job while at work. The court held that because
there was evidence that assigning the employee to day shifts could
have alleviated the insomnia, it was permissible for the jury to find
United liable for failing to change her shift so that she could get
some sleep. Id. at 372-73. Although the question of whether an
employer is obligated to accommodate a disability-related problem
outside of the workplace that influences an employee’s ability to
perform the essential functions of her job while at work was not
squarely presented in Gile, the court at least assumed the existence
of such an obligation.
15
reprinted in 1990 U.S.C.C.A.N. 330, 345. Thus, the ADA does
not strictly limit the breadth of reasonable accommodations to
address only those problems that an employee has in performing
her work that arise once she arrives at the workplace.
At least one other court of appeals has recognized this
principle. In Lyons v. Legal Aid Society, 68 F.3d 1512, 1513-14
(2d Cir. 1995), an employee who suffered severe physical
impairments due to a car accident that prevented her from
walking long distances sued her employer, Legal Aid, under the
ADA in part for refusing to provide her financial assistance to
pay for a parking space close to work. The Second Circuit held
that the employee stated an ADA claim because, depending on
the circumstances, such an accommodation might be reasonable.
Id. at 1516. Although we voice no comment on that court’s
holding that a reasonable accommodation could include funds to
pay for an employee’s parking space, we agree with the court’s
observation that “there is nothing inherently unreasonable, given
the stated views of Congress and the agencies responsible for
overseeing the federal disability statutes, in requiring an
employer to furnish an otherwise qualified disabled employee
with assistance related to her ability to get to work.” Id. at8
1517.

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The qualification “under the circumstances” is crucial. We9
do not hold that Rite Aid was required to provide the shift-change
16
We therefore hold that under certain circumstances the
ADA can obligate an employer to accommodate an employee’s
disability-related difficulties in getting to work, if reasonable.
One such circumstance is when the requested accommodation is
a change to a workplace condition that is entirely within an
employer’s control and that would allow the employee to get to
work and perform her job. See 29 C.F.R. § 1630.2(o)(1)(ii)-(iii)
(2005) (defining reasonable accommodations to include
“[m]odifications or adjustments to the work environment, or to
the manner or circumstances under which [a] position . . . is
customarily performed, that enable a qualified individual with a
disability to perform the essential functions of that position . . .
[and] [m]odifications or adjustments that enable a covered
entity’s employee with a disability to enjoy equal benefits and
privileges of employment as are enjoyed by its other similarly
situated employees without disabilities.”). A change in shifts
could be that kind of accommodation.
The District Court’s contrary statement that a change in
shifts “had nothing to do with the work environment or the
manner and circumstances under which [Colwell] performed her
work” is perplexing. Colwell, 2008 WL 4748226, at *9. As a
cashier, Colwell was certainly required to be at work to perform
any of the functions of her job, and any change in shifts is
clearly a change in a workplace condition entirely under the
employer’s control. Although the District Court relied on a
number of decisions by district courts that have held that
employers are not required to provide an employee with an
accommodation that facilitates their commute to work, those
cases do not speak to the issue Colwell presents. Our holding
does not make employers “responsible for how an employee gets
to work.” Id. at *6. Indeed, Colwell did not ask for help in the
method or means of her commute. The scheduling of shifts is
not done outside the workplace but inside the workplace. It is
for the jury to decide whether a shift change was a reasonable
accommodation under the circumstances.9

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that Colwell desired. We recognize that a decision by the employer
to allow one of its staff members to work exclusively during
daylight hours may be viewed adversely by other workers. This is
not a matter to be decided in the abstract. While it may be possible
to have a case in which summary judgment would be appropriate
on that issue, this is not that case. It will be for the jury to decide
here whether Rite Aid can “demonstrate that the accommodation
would impose an undue hardship on the operation of [its] . . .
business . . . .” Williams, 380 F.3d at 761.
17
In sum, we hold that the ADA contemplates that
employers may need to make reasonable shift changes in order to
accommodate a disabled employee’s disability-related
difficulties in getting to work. As Rite Aid makes no factual
argument about the reasonableness of Colwell’s request, nor has
it argued before us that scheduling Colwell for day shifts would
have been an undue burden, those questions are ultimately for
the jury.
Finally, we consider the extent to which the requirement
for the parties to engage in the interactive process may affect this
case. The District Court concluded that Rite Aid had no duty to
accommodate Colwell “in her commute to work” and did not
discuss a change in shifts as an accommodation. Colwell, 2008
WL 4748226 at *9.
“[E]ither by direct communication or other appropriate
means, the employee ‘must make clear that the [he/she] wants
assistance for his or her disability.’” Conneen v. MBNA Am.
Bank, N.A., 334 F.3d 318, 332 (3d Cir. 2003) (quoting Jones v.
United Parcel Serv., 214 F.3d 402, 408 (3d Cir. 2000)). “The
employer must have enough information to know of ‘both the
disability and desire for an accommodation,’ or circumstances
must at least be sufficient to cause a reasonable employer to
make appropriate inquiries about the possible need for an
accommodation.” Id. (quoting Taylor, 184 F.3d at 313). Indeed,
“[t]he law does not require any formal mechanism or ‘magic
words’ to notify an employer that an employee needs an
accommodation and circumstances will sometimes require the

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18
employer to meet the employee half-way, and if it appears that
the employee may need an accommodation but doesn’t know
how to ask for it, the employer should do what it can to help.”
Id. at 332 (internal quotations, citations, and alterations omitted).
Once proper notice has been provided, however, “both parties
have a duty to assist in the search for an appropriate reasonable
accommodation and to act in good faith.” Id. (quoting Mengine,
114 F.3d at 420).
Rite Aid argues that it met its obligations under the ADA.
More specifically, Rite Aid argues as follows: after Colwell
placed Rite Aid on notice of her blindness and inability to drive,
Chapman discussed with Colwell her difficulty in getting to
work; although Chapman rejected Colwell’s request for a
schedule change, Colwell also told Chapman that she could get
rides from her grandson, and so Chapman left the conversation
believing that the matter was adequately resolved because
Colwell did not require an accommodation; Rite Aid’s duties to
re-engage in the interactive process never reattached because
Colwell did not thereafter inform Rite Aid that she still required
an accommodation and thus Rite Aid could not know that one
was desired or needed.
A reasonable jury, however, could conclude that Rite Aid
failed in its obligations to engage in the interactive process
required under the ADA. The record supports a reasonable
inference that Colwell told Chapman that she could not always
count on her grandson to drive her to work, and that the solution
was only a temporary one. Moreover, after Colwell and
Chapman spoke, Colwell had Karasek contact Chapman to seek
a change in Colwell’s shifts but Kasarek found Chapman
immovable in her resistance to any schedule change for Colwell.
Colwell’s resignation note also implied that she was unhappy
with the status quo of her scheduling and a jury could reasonably
infer that Colwell had continued to communicate that
unhappiness to Chapman. Chapman’s agreement to meet with
Karasek and Colwell would not compel a reasonable jury to find
that Rite Aid was willing to negotiate in good faith. Chapman
had flatly refused all of Colwell’s overtures to obtain an
accommodation, and Rite Aid does not assert that Chapman was

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19
willing to offer any accommodations at the meeting.
On the other hand, a reasonable jury could absolve Rite
Aid, concluding that Colwell prematurely terminated an ongoing
interactive process. See Taylor, 184 F.3d at 317 (“an employer
cannot be faulted if” the employee’s actions or omissions during
the interactive process cause the process’s failure). Rite Aid was
scheduled to meet with Colwell and Karasek to discuss
Colwell’s concerns, but when Karasek became unavailable, the
meeting never occurred. Notwithstanding Karasek’s assurance
that “he would set up another meeting,” Colwell decided to
submit her resignation. App. at 190.
As another court of appeals has explained,
“A party that fails to communicate, by way of initiation or
response, may also be acting in bad faith. In essence,
courts should attempt to isolate the cause of the
breakdown and then assign responsibility.” . . . The last
act in the interactive process is not always the cause of a
breakdown, . . . and courts must examine the process as a
whole to determine whether the evidence requires a
finding that one party’s bad faith caused the breakdown.
EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 805-06 (7th Cir.
2005) (quoting Beck v. Univ. of Wisc. Bd. of Regents, 75 F.3d
1330, 1335 (7th Cir. 1996)).
Under the circumstances presented in this case, a
reasonable jury could thus conclude that either party violated the
duty to engage with good faith in the interactive process.
Because genuine issues of material fact exist on that issue, we
cannot affirm the grant of summary judgment on the basis that
Rite Aid fully complied with the requirements of the ADA. A
fact-finder must settle that dispute.
III.
Conclusion

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20
We will affirm the District Court’s grant of summary
judgment on Colwell’s claims under the ADEA asserting
retaliation and constructive discharge. For the reasons set out
above, we will reverse the District Court’s grant of summary
judgment in Rite Aid’s favor as to Colwell’s failure to
accommodate claims and remand for further proceedings
consistent with this opinion.

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