Aldrich v. Boeing Co., 146 F.3d 1265 (10th Cir. 1998). · Go Syfert
Aldrich v. Boeing Co., 146 F.3d 1265 (10th Cir. 1998). Cases Citing This Book View Copy Cite
“such determinations are not susceptible to per se rules; they must be made on a case-by-case basis.”
91 citation events (54 in the last 25 years) across 20 distinct courts.
Strongest positive: Mitchell v. Clean Harbors Environmental Services Inc (okwd, 2023-02-03)
Treatment trajectory · 1998 → 2026 · click a year to view as-of
1998 2012 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Mitchell v. Clean Harbors Environmental Services Inc
W.D. Okla. · 2023 · signal: see · quote attribution · 1 verbatim quote · confidence high
such determinations are not susceptible to per se rules; they must be made on a case-by-case basis.
discussed Cited as authority (rule) Heather M. Salazar v. David P. Steiner, Postmaster General of the United States Postal Service, United States Postal Service
D.N.M. · 2026 · confidence medium
Similarly, to establish a prima facie case of discrimination under the ADA, a plaintiff must demonstrate “‘(1) that she is disabled within the meaning of the ADA; (2) that she is qualified—with or without reasonable accommodation; and (3) that she was discriminated against because of her disability.’” McKenzie v. Dovala, 242 F.3d 967, 969 (10th Cir. 2001) (quoting Aldrich v. Boeing Co., 146 F.3d 1265, 1269 (10th Cir. 1998)).
discussed Cited as authority (rule) Smith v. Transwest Inc.
D. Colo. · 2024 · confidence medium
Plaintiff cites Aldrich v. Boeing Co., 146 F.3d 1265, 1296 (10th Cir. 1998), for the proposition (similar to the one seen in Cleveland) that a worker cannot be estopped from pursuing an ADA claim merely because he applied for and received permanent and total disability benefits under a state workers' compensation statute, as those workers’ compensation benefits are awarded without regard to reasonable accommodation.
discussed Cited as authority (rule) George v. Community Health Centers Inc
W.D. Okla. · 2022 · confidence medium
Community Health Centers offered no further argument on the supposed second element failure beyond this bare conclusion. 32 Smith v. Midland Brake, Inc., 180 F.3d 1154, 1172 (10th Cir. 1999) (en banc) (quoting EEOC Interpretive Guidance, 29 C.F.R. 1630, at 8 (1998)). 33 Id. 34 Id. (quoting EEOC Interpretive Guidance, at 8). 35 See Cisneros v. Wilson, 226 F.3d 1113, 1129 (10th Cir. 2000) (“Examples of possible accommodations include ‘permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment.’”) (quoting 29 C.F.R. pt. 1630, app’x); Aldrich v.…
cited Cited as authority (rule) Nortey v. St. John Medical Center, Inc.
N.D. Okla. · 2021 · confidence medium
Aldrich v. Boeing Co., 146 F.3d 1265, 1269 (10th Cir. 1998).
cited Cited as authority (rule) Heldmann v. Southwestern Oklahoma State University College of Pharmacy
W.D. Okla. · 2020 · confidence medium
Aldrich v. Boeing Co., 146 F.3d 1265, 1270 (10th Cir. 1998).
cited Cited as authority (rule) Heldmann v. Southwestern Oklahoma State University College of Pharmacy
W.D. Okla. · 2019 · confidence medium
Plaintiff fails to allege facts to support the “duration or expected duration” or the “permanent or long-term impact of the impairment.” Aldrich v. Boeing Co., 146 F.3d 1265, 1270 (10th Cir. 1998).
discussed Cited as authority (rule) Capeci v. City of Imperial CA4/1 (2×)
Cal. Ct. App. · 2016 · confidence medium
(Watson v. Lithonia Lighting (7th Cir. 2002) 304 F.3d 749, 752 (Watson); Hoskins v. Oakland County Sheriff's Dept. (6th Cir. 2000) 227 F.3d 719, 730-731 (Hoskins); Malabarba v. Chicago Tribune Co. (7th Cir. 1998) 149 F.3d 690, 696 (Malabarba); Aldrich v. Boeing Co. (10th Cir. 1998) 146 F.3d 1265, 1271, fn. 5 ; Laurin v. Providence Hosp. (1st Cir. 1998) 150 F.3d 52, 60 (Laurin); cf. Shiring v. Runyon (3d Cir. 1996) 90 F.3d 827 [reasonable accommodation requirements of federal Rehabilitation Act applicable to federal employees did not require employer to make temporary light-duty position perman…
discussed Cited as authority (rule) Rolland v. Potter
D. Mass. · 2006 · confidence medium
Corp., 526 U.S. 795, 801-03 , 119 S.Ct. 1597 , 143 L.Ed.2d 966 (1999) (claim of “total disability” in social security proceedings does not automatically bar subsequent ADA claim); Aldrich v. *230 Boeing Co., 146 F.3d 1265, 1268 (10th Cir.1998) (statements made in company’s disability applications or hearings cannot act as bar to later ADA claim).
discussed Cited as authority (rule) Raine v. City of Burbank
Cal. Ct. App. · 2006 · confidence medium
(Watson v. Lithonia Lighting (7th Cir. 2002) 304 F.3d 749, 752 (Watson); Hoskins v. Oakland County Sheriff’s Dept. (6th Cir. 2000) 227 F.3d 719, 730-731 (Hoskins); Malabarba v. Chicago Tribune Co. (7th Cir. 1998) 149 F.3d 690, 696 (Malabarba); Aldrich v. Boeing Co. (10th Cir. 1998) 146 F.3d 1265, 1271, fn. 5 ; Laurin v. Providence Hosp. (1st Cir. 1998) 150 F.3d 52, 60 (Laurin); cf. Shiring v. Runyon (3d Cir. 1996) 90 F.3d 827 [reasonable accommodation requirements of federal *1225 Rehabilitation Act applicable to federal employees did not require employer to make temporary light-duty positio…
cited Cited as authority (rule) Nickola v. Storage Technology Corp.
10th Cir. · 2005 · confidence medium
Aldrich v. Boeing Co., 146 F.3d 1265, 1269 (10th Cir.1998).
discussed Cited as authority (rule) Diaz v. Federal Express Corp.
C.D. Cal. · 2005 · confidence medium
Oct.20, 1997) (sic), with Aldrich v. Boeing Co., 146 F.3d 1265, 1270 (10th Cir.1998) (sic), cert. denied, 526 U.S. 1144 , 119 S.Ct. 2018 , 143 L.Ed.2d 1030 (1999) (sic) (“An impairment need not be permanent in order to rise to the level of a disability”).
discussed Cited as authority (rule) Brown v. UNIFIED SCHOOL DIST. NO. 500, KANSAS CITY
D. Kan. · 2005 · confidence medium
Plaintiff also cites Aldrich v. Boeing Co., 146 F.3d 1265, 1270 (10th Cir.1998) in support of her position that a severe, non-permanent condition may rise to the level of a disability under the ADA where the duration of the condition is indefinite and unknowable or is expected to last at least several months.
discussed Cited as authority (rule) Davidson v. America Online, Inc.
10th Cir. · 2003 · confidence medium
To establish a prima facie case of discrimination under the ADA, a plaintiff must show “(1) that he is disabled within the meaning of the ADA; (2) that he is qualified, with or without reasonable accommodation, to perform the essential functions of the job held or desired; and (3) that he was discriminated against because of his disability.” McKenzie v. Dovala, 242 F.3d 967, 969 (10th Cir.2001) (quoting Aldrich v. Boeing Co., 146 F.3d 1265, 1269 (10th Cir.1998) (internal quotation omitted)).
cited Cited as authority (rule) Breen v. Carlsbad Municipal Schools
N.M. Ct. App. · 2003 · confidence medium
Aldrich v. Boeing Co., 146 F.3d 1265, 1269 (10th Cir.1998).
discussed Cited as authority (rule) Reed v. Nellcor Puritan Bennett
D. Kan. · 2003 · confidence medium
See Pack, 166 F.3d at 1302 (citing Siemon v. AT & T Corp., 117 F.3d 1173 , 1175 (10th Cir.1997) and White, 45 F.3d at 360-61 ); Aldrich v. Boeing Co., 146 F.3d 1265, 1269 (10th Cir.1998) (citing same).
discussed Cited as authority (rule) Conrad v. Board of Johnson County Commissioners
D. Kan. · 2002 · confidence medium
Aldrich v. Boeing Co., 146 F.3d 1265, 1270 (10th Cir.1998) (quoting 29 C.F.R. pt. 1630, App. § 1630.2(j)). 53 . 29 C.F.R. § 1630.2 (j)(3)(i); Nielsen v. Moroni Feed Co., 162 F.3d 604, 612 (10th Cir. 1998). 54 .
discussed Cited as authority (rule) Hines v. Chrysler Corp. (2×) also: Cited "see"
D. Colo. · 2002 · confidence medium
Aldrich v. Boeing Co., 146 F.3d 1265, 1270 (10th Cir.1998).
discussed Cited as authority (rule) Bristol v. Board of County Commissioners (2×)
10th Cir. · 2002 · confidence medium
"The determination of whether an individual is substantially limited in a major life activity must be made on a case by case basis." Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 566 , 119 S.Ct. 2162 , 144 L.Ed.2d 518 (1999) (quoting 29 C.F.R. pt. 1630, App., § 1630.2(j) (1998)); see also Sutton v. United Air Lines, Inc. 527 U.S. 471, 483 , 119 S.Ct. 2139 , 144 L.Ed.2d 450 (1999); Aldrich v. Boeing Co., 146 F.3d 1265, 1270 (10th Cir.1998) ("Whether an impairment `substantially limits' a major life activity depends on the individual and the impairment.
examined Cited as authority (rule) Tate v. Farmland Industries, Inc. (4×)
10th Cir. · 2001 · confidence medium
To establish a prima facie case of discrimination under the ADA, a plaintiff must demonstrate “ ‘(1) that [he] is disabled within the meaning of the ADA; (2) that [he] is qualified-with or without reasonable accommodation; and (3) that [he] was discriminated against because of [his] disability.’ ” McKenzie v. Dovala, 242 F.3d 967, 969 (10th Cir.2001) (quoting Aldrich v. Boeing Co., 146 F.3d 1265, 1269 (10th Cir.1998)).
discussed Cited as authority (rule) McKenzie v. Dovala
10th Cir. · 2001 · confidence medium
To establish a prima facie case of discrimination under the ADA, a plaintiff must show “(1) that [s]he is disabled within the meaning of the ADA; (2) that [s]he is qualified — with or without reasonable accommodation; and (3) that [s]he was discriminated against because of [her] disability.” Aldrich v. Boeing Co., 146 F.3d 1265, 1269 (10th Cir.1998) (internal quotation omitted); see also MacDonald v. Delta Air Lines, Inc., 94 F.3d 1437, 1443 (10th Cir.1996).
discussed Cited as authority (rule) Hall v. Claussen
10th Cir. · 2001 · confidence medium
Under the ADA, an impairment that substantially limits a major life activity may constitute a disability if it is “expected to persist on a long-term basis because its anticipated duration was indefinite, unknowable, or was expected to be at least several months.” Aldrich v. Boeing, 146 F.3d 1265, 1270 (10th Cir.1998).
cited Cited as authority (rule) McCullah v. Southern California Gas Co.
Cal. Ct. App. · 2000 · confidence medium
(Aldrich v. Boeing Co. (10th Cir. 1998) 146 F.3d 1265, 1271, fn. 5 ; White v. York Intern.
discussed Cited as authority (rule) Glover v. NMC Homecare, Inc.
D. Kan. · 2000 · confidence medium
Id, Various factors are relevant in determining whether an impairment substantially limits a major life activity, including: “‘(i) The nature and severity of the impairment; (ii) The duration or expected duration of the impairment; and (iii) The permanent or long term impact, *1167 or the expected permanent or long term impact of or resulting from the impairment.’ ” Aldrich v. Boeing Co., 146 F.3d 1265, 1269-70 (10th Cir.1998) (quoting 29 C.F.R. § 1630.2 (j)(2)).
discussed Cited as authority (rule) Arthur Joseph Sheehan v. James Marr, Police Chief, City of Gloucester
1st Cir. · 2000 · confidence medium
See, e.g., Motley v. New Jersey State Police, 196 F.3d 160, 163 (3d Cir. 1999) (state accidental disability retirement); Aldrich v. Boeing Co., 146 F.3d 1265, 1268 (10th Cir.1998) (workers’ compensation); D’Aprile v. Fleet Servs.
discussed Cited as authority (rule) William D. Adams v. Citizens Advice Bureau
2d Cir. · 1999 · confidence medium
Oct.20, 1997), with Aldrich v. Boeing Co., 146 F.3d 1265, 1270 (10th Cir.1998), ce rt. denied, - U.S. -, 119 S.Ct. 2018 , 143 L.Ed.2d 1030 (1999) (“[A]n impairment need not be permanent in order to rise to the level of a disability.”).
discussed Cited as authority (rule) EEOC v. United Airlines
10th Cir. · 1999 · confidence medium
Viewing the record in the light most favorable to the EEOC, see Aldrich v. Boeing Co., 146 F.3d 1265, 1271 (10th Cir. 1998), cert. denied, 67 U.S.L.W. 3376 (U.S. June 1, 1999) (No. 98-859), we find no genuine issue of material fact as to Behrend’s inability to perform the essential functions of the CSR position.
discussed Cited as authority (rule) Smith v. Midland Brake, Inc.
10th Cir. · 1999 · confidence medium
The option of reassignment is particularly important when the employee is unable to perform the essential functions of his or her current job, either with or without accommodation or when accommodation would pose an undue hardship for the employer.”); Gile v. United Airlines, Inc., 95 F.3d 492, 498 (7th Cir.1996) (“Our review of the ADA, its regulations, and the EEOC’s interpretive guidance leads us to the conclusion of the majority of courts that have addressed the issue that the ADA may require an employer to reassign a disabled employee to a different position as reasonable accommodat…
discussed Cited as authority (rule) Nicholson v. The Boeing Company
10th Cir. · 1999 · confidence medium
To overcome Boeing’s motion for summary judgment, Ms. Nicholson must show initially that she was disabled and that she was a “qualified individual.” See Aldrich v. The Boeing Co. , 146 F.3d 1265, 1271 (10th Cir. 1998), petition for cert. filed , 67 U.S.L.W. 3376 (U.S. Nov. 23, 1998).
discussed Cited as authority (rule) Donnie M. WILSON, Plaintiff-Appellant, v. CHRYSLER CORPORATION, Defendant-Appellee (2×)
7th Cir. · 1999 · confidence medium
See also McNemar v. The Disney Store, Inc., 91 F.3d 610, 617-18 (3d Cir.1996) (plaintiff was estopped from arguing that he was qualified to work under the ADA); Blanton v. Inco Alloys Int'l, Inc., 108 F.3d 104, 109-10 , supp'd on reh'g, 123 F.3d 916 (6th Cir.1997) (plaintiff was not estopped where his prior position was not successful); Aldrich v. The Boeing Co., 146 F.3d 1265, 1268-69 (10th Cir.1998) (plaintiff was not estopped from contending in ADA lawsuit that he could have worked with reasonable accommodation) 4 We believe that for present purposes our statement of this circuit's law of j…
examined Cited as authority (rule) Rebarchek v. Farmers Cooperative Elevator & Mercantile Ass'n (3×) also: Cited "see"
D. Kan. · 1999 · confidence medium
Although plaintiff correctly points out that an impairment does not necessarily have to be permanent to constitute a disability, (citing Aldrich v. Boeing Co., 146 F.3d 1265, 1270 (10th Cir.1998)), the regulations nevertheless indicate that temporary conditions are not ordinarily regarded as disabilities unless they are severe and their duration is indefinite or unknowable or is expected to be at least several months.
discussed Cited as authority (rule) Heffernan v. Provident Life & Accident Insurance
D. Kan. · 1999 · confidence medium
See Pack, 166 F.3d at 1302 (citing Siemon v. AT&T Corp., 117 F.3d 1173 , 1175 (10th Cir.1997); White, 45 F.3d at 360-61 ); Aldrich v. Boeing Co., 146 F.3d 1265, 1269 (10th Cir.1998) (citing same), petition for cert. filed, 67 USLW 3376 (Nov. 23, 1998) (No. 98-859).
discussed Cited as authority (rule) Kidwell v. Board of County Com'rs of Shawnee County
D. Kan. · 1998 · confidence medium
To state a prima facie case of disability discrimination, the plaintiff must demonstrate: “ ‘(1) that he is “disabled” within the meaning of the ADA; (2) that he is qualified' — -with or without reasonable accommodation; and (3) that he was discriminated against because of his disability.’ ” Aldrich v. Boeing Co., 146 F.3d 1265, 1269 (10th Cir.1998) (quoting Siemon v. AT & T Corp., 117 F.3d 1173 , 1175 (10th Cir.1997)).
discussed Cited as authority (rule) Kustom Signals, Inc. v. Applied Concepts, Inc. (2×) also: Cited "see"
D. Kan. · 1998 · confidence medium
In two other recent cases, the Tenth Circuit has expressed its reluctance to apply judicial estoppel because application of the doctrine often discourages “determination of cases on the basis of the true facts as they might be established ultimately.” Aldrich v. Boeing Co., 146 F.3d 1265, 1268 (10th Cir.1998) (citations omitted); see Rascon v. U.S. West Communications, 143 F.3d 1324 (10th Cir.1998).
cited Cited "see" Sprague v. Kasa Industrial Controls, Inc.
D. Kan. · 2008 · signal: see · confidence high
See generally, Aldrich v. Boeing Co., 146 F.3d 1265, 1269-70 (10th Cir.1998) (discussing "substantially limits” as defined by 29 C.F.R. § 1630.2 (j)). . 29 U.S.C. § 623 . .
discussed Cited "see" Felix v. New York City Transit Authority
S.D.N.Y. · 2001 · signal: see · confidence high
See Aldrich v. Boeing Co., 146 F.3d 1265, 1270 (10th Cir.1998) (“The regulations and the EEOC’s interpretive guidelines clearly state that an impairment need not be permanent in order to rise to the level of a disability.”) (citing 29 C.F.R. § 1630.2 (j)(2)(iii)).
discussed Cited "see" Wilson v. Lemington Home for the Aged
W.D. Pa. · 2001 · signal: see · confidence high
See, Aldrich v. Boeing Co., 146 F.3d 1265, 1270 (10th Cir.1998) (an impairment need not be permanent to rise to the level of a disability, it may be sufficient if it is expected to last several months).
cited Cited "see" Baffoe v. W.H. Stewart Co.
10th Cir. · 2000 · signal: see · confidence high
See Aldrich v. Boeing Co., 146 F.3d 1265, 1268-69 (10 th Cir. 1998).
discussed Cited "see" Long v. City of Leawood, KS
10th Cir. · 2000 · signal: see · confidence high
See Aldrich v. Boeing Co., 146 F.3d 1265 (10th Cir. 1998), cert. denied, 119 S. Ct. 2018 (1999) (holding that ADA plaintiffs are not judicially estopped from claiming that they are able to work with reasonable accommodations after claiming total disability in a workman’s compensation benefits proceeding because the ADA and the workman’s compensation statute have different standards for disability).
discussed Cited "see" McCleary v. National Cold Storage, Inc.
D. Kan. · 1999 · signal: see · confidence high
Still, the burden rests with the plaintiff to offer more than conclusory and general statements about his leg injury. “ ‘Whether an impairment substantially limits a major life activity must be determined, not by how “disabling” the impairment sounds, but rather the impact of the impairment on the individual.’ ” Ingles v. Neiman Marcus Group, 974 F.Supp. 996, 1002 (S.D.Tex.1997) (quoting McKey v. Occidental Chemical Corp., 956 F.Supp. 1313, 1318 (S.D.Tex.1997)); see Aldrich v. Boeing Co., 146 F.3d 1265, 1270 (10th Cir. 1998), cert. denied, — U.S. -, 119 S.Ct. 2018 , 143 L.Ed.2d 1…
cited Cited "see" McClurg v. Gtech Corp.
D. Kan. · 1999 · signal: see · confidence high
Corp., 956 F.Supp. 1313, 1318 (S.D.Tex.1997)); see Aldrich v. Boeing Co., 146 F.3d 1265, 1270 (10th Cir.1998), ce rt. denied, — U.S. -, 119 S.Ct. 2018 , 143 L.Ed.2d 1030 (1999).
discussed Cited "see" No. 97-55024
9th Cir. · 1999 · signal: see · confidence high
See Aldrich v. Boeing Co., 146 F.3d 1265 , 1271 n. 5 (10th Cir.1998); Kralik v. Durbin, 130 F.3d 76, 81-83 (3d Cir.1997); Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 810 (5th Cir.1997); Eckles v. Consolidated Rail Corp., 94 F.3d 1041, 1047-51 (7th Cir.1996); Wooten v. Farmland Foods, 58 F.3d 382, 386 (8th Cir.1995); Milton v. Scrivner, Inc., 53 F.3d 1118, 1124-25 (10th Cir.1995); see also Aka v. Washington Hosp.
discussed Cited "see" Lujan v. Pacific Maritime Ass'n
9th Cir. · 1999 · signal: see · confidence high
See Aldrich v. Boeing Co., 146 F.3d 1265 , 1271 n. 5 (10th Cir.1998); Kralik v. Durbin, 130 F.3d 76, 81-83 (3d Cir.1997); Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 810 (5th Cir.1997); Eckles v. Consolidated Rail Corp., 94 F.3d 1041, 1047-51 (7th Cir.1996); Wooten v. Farmland Foods, 58 F.3d 382, 386 (8th Cir.1995); Milton v. Scrivner, Inc., 53 F.3d 1118, 1124-25 (10th Cir.1995); see also Aka v. Washington Hosp.
cited Cited "see" Kenneth R. Johnson v. The City of Midwest City
10th Cir. · 1999 · signal: see · confidence high
See Aldrich v. Boeing Co., 146 F.3d 1265, 1271 (10th Cir.1998), petition for cert. filed (U.S. Nov. 23, 1998) (No. 98-859).
discussed Cited "see" David Willis v. Pacific Maritime Association International Longshoremen's & Warehousemen's Union, Local 10. International Longshoremen's and Warehousemen's Union, Paul Gomez v. Pacific Maritime Association International Longshoremen's & Warehousemen's Union, Local 10. International Longshoremen's and Warehousemen's Union International Longshoremen's & Warehousemen's Union, Local 34
9th Cir. · 1998 · signal: see · confidence high
See Aldrich v. Boeing Co., 146 F.3d 1265 , 1272 n. 5 (10th Cir.1998) (holding that Plaintiff's proposed transfer which would violate the seniority provisions of a collective bargaining agreement is not required by the ADA); Kralik v. Durbin, 130 F.3d 76, 81, 83 (3d Cir.1997) (holding that "an accommodation to one employee which violates the seniority rights of other employees in a collective bargaining agreement simply is not reasonable"); Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 810 (5th Cir.1997) (holding that the ADA does not require an employer to make an accommodation that would be …
discussed Cited "see" Willis v. Pacific Maritime Ass'n
9th Cir. · 1998 · signal: see · confidence high
See Aldrich v. Boeing Co., 146 F.3d 1265 , 1272 n. 5 (10th Cir.1998) (holding that Plaintiffs proposed transfer which would violate the seniority provisions of a collective bargaining agreement is not required by the ADA); Kralik v. Durbin, 130 F.3d 76, 81, 83 (3d Cir.1997) (holding that “an accommodation to one employee which violates the seniority rights of other employees in a collective bargaining agreement simply is not reasonable”); Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 810 (5th Cir.1997) (holding that the ADA does not require an employer to make an accommodation that would …
cited Cited "see" Horsewood v. Kids \R\" U.S."
D. Kan. · 1998 · signal: see · confidence high
See Aldrich v. Boeing Co., 146 F.3d 1265, 1271 (10th Cir.1998).
discussed Cited "see, e.g." Brigham v. Frontier Airlines
10th Cir. · 2023 · signal: see also · confidence low
See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 79 (1977) (concluding that “the duty to accommodate” doesn’t require an employer to “take steps inconsistent with” a collective bargaining agreement); see also Aldrich v. Boeing Co., 146 F.3d 1265 , 1271 n.5 (10th Cir. 1998) (concluding that an employee’s request for a transfer was not reasonable because “it would have violated the seniority provisions of the collective bargaining agreement,” which was “not required by the [Americans with Disabilities Act]”).
discussed Cited "see, e.g." Wagner-Harding v. Farmland Industries Inc.
10th Cir. · 2001 · signal: see also · confidence medium
See also Aldrich v. Boeing Co., 146 F.3d 1265, 1268-69 (10th Cir.1998) (evidence of disability in workers’ compensation claim probative, but neither dispositive of the injury nor sufficient to give rise to a genuine issue of material fact for claim under the ADA).
discussed Cited "see, e.g." Williams v. Prison Health Services, Inc.
D. Kan. · 2001 · signal: see also · confidence medium
To make a prima facie case, plaintiff must show “(1) that [s]he is ‘disabled within the meaning of the ADA’, (2) that [s]he is qualified — with or without reasonable accommodation; and (3) that [s]he was discriminated against because of [her] disability.” Butler v. City of Prairie Village, Kan., 172 F.3d 736, 748 (10th Cir.1999) (quoting Siemon v. AT&T Corp., 117 F.3d 1173 , 1175 (10th Cir.1997)); see also Aldrich v. Boeing Co., 146 F.3d 1265, 1269 (10th Cir.1998), cert. denied, 526 U.S. 1144 , 119 S.Ct. 2018 , 143 L.Ed.2d 1030 (1999); Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th…
Retrieving the full opinion text from the archive…
Kenneth W. ALDRICH, Plaintiff-Appellant,
v.
the BOEING COMPANY, a Delaware Corporation, Defendant-Appellee
96-3413.
Court of Appeals for the Tenth Circuit.
Jul 1, 1998.
146 F.3d 1265
Albert F. Kuhl, Law Offices of Albert F. Kuhl, Lenexa, Kansas, for Plaintiff — Appel-lee., Mary K. Babcock (Trisha A. Thelen, with her on the brief), Foulston & Siefldn, Wichita, Kansas, for Defendant — Appellee.
Porfilio, McKay, Lucero.
Cited by 61 opinions  |  Published
LUCERO, Circuit Judge.

This case presents a novel question: May an impairment be substantially limiting for the purposes of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213, before the date a permanent disability rating has been issued by the treating physician? Answering this question in the affirmative, we reverse the judgment of the district court and remand for further proceedings.

I

Kenneth Aldrich, a former employee of The Boeing Company, appeals the district court’s order granting summary judgment in favor of Boeing. The district court held that Aldrich was judicially estopped from pursuing a claim under the ADA and, alternatively, that he had failed to establish that he was a qualified individual with a disability. [1]

Aldrich was an assembly worker at Boeing’s facility in Wichita, Kansas, from September 29,1988, until he was laid off on June 8, 1993. Ten months prior to being laid off, Aldrich informed Boeing’s Central Medical Department that he was experiencing pain in his right hand and was having difficulty using hand tools. He was referred to Dr. Harry Morris, an orthopaedic surgeon, for evaluation.

• Dr. Morris examined Aldrich in August 1992 and made a preliminary diagnosis of “[cjumulative trauma syndrome manifesting as flexor tendon tenosynovitis.” Appellee’s Supp.App. at 249. Dr. Morris determined Aldrich was unable to return to work and signed a medical leave of absence form, scheduling him for reevaluation in four weeks. At two subsequent evaluations in September and October, Dr. Morris noted that Aldrich’s condition had improved; nevertheless, he extended Aldrich’s medical leave of absence.

On November i7, Dr. Morris released Aid-rich to return to work, limiting his use of power tools to four hours a day for the first week, but providing for a gradual increase in usage over the course of the following two weeks. Upon returning to work, however, Aldrich was informed by his supervisor that there was no work he could do with those medical restrictions, and was referred to the Personnel Department, where he was immediately placed on medical leave. For a brief period in early December, he was given a work assignment at Boeing’s Facilities Department as a member of the “Warn Pool.” According to Boeing, the Warn Pool was created to hold employees during the federally mandated sixty-day notice period prior to an anticipated layoff. Boeing removed Aid-rich from this position when it discovered that he was not subject to layoff and placed him back on medical leave of absence.

Dr. Morris continued to treat Aldrich and evaluate him on a monthly basis. On April 7, 1993, Dr. Morris rated Aldrich as 15% permanently partially impaired. He wrote: “It is my impression that the patient can return to work but he must be in a job position where he has no rivetting [sic], bucking or power equipment use. There should be no repetitive grasping, gripping, pushing or pulling as well.” Appellee’s SuppApp. at 256. Aldrich provided Boeing with Dr. Morris’s report on April 19.

Approximately one week before he provided this permanent disability rating to his employer, Aldrich was informed that Boeing[*1268] had declared a surplus in his job code and that he , would be laid off on June 8, 1993. Three weeks prior to plaintiffs scheduled termination, Boeing’s Accommodation Review Board met to determine whether Ald-rich’s permanent restrictions could be accommodated by the company. The Board determined that the limitations Dr. Morris had imposed on Aldrich prevented him from doing his current job, with or without accommodation, and that no other positions were available at that time. The Board thus decided that Aldrich would remain on medical leave of absence until he was terminated on June 8.

During the course of these events, Aldrich applied for disability benefits from several sources. On October 17, 1992, he filed a workers’ compensation claim under Kansas law which was eventually settled in 1995 for $30,000. Four months later, Aldrich applied for permanent and total disability benefits under a private disability plan offered by Boeing. His application for benefits was approved in March 1994.

II

Noting that Aldrich filed for and received permanent and total disability benefits under Boeing’s private disability plan, the district court held that his ADA claim was barred by the doctrine of judicial estoppel. Boeing insists that Aldrich’s lawsuit is also barred by this doctrine because of his claim for permanent and total disability benefits under Kansas workers’ compensation law and because of plaintiffs testimony at a settlement hearing regarding this claim. [2] We reject both views.

In Rascon v. U S West Communications, 143 F.3d 1324 (10th Cir.1998), this circuit recently held that the application for, or receipt of, social security disability benefits does not estop a plaintiff from pursuing a claim under the ADA. See id. at 1330. The logic behind eschewing judicial estoppel of an ADA claim even when the plaintiff has applied for or received disability benefits is that “the ADA takes into consideration whether an individual with a disability can work given reasonable accommodation. The Social Security Act, on the other hand, does not take into consideration whether an accommodation would render the individual able to perform a job.” Id. at 1330 (emphasis added) (citations omitted). Consequently, claims for social security benefits, because granted without regard to reasonable accommodation, are not necessarily inconsistent with a discrimination claim pursuant to the ADA. See id. It follows that, Adrich is not estopped from pursuing his ADA claim merely because he applied for and received benefits under Boeing’s private disability plan and the Kansas workers’ compensation statute — those benefits are also awarded without regard to reasonable accommodation. Compare Boeing, Disability and Life Insurance Plans 8 (1990) (defining permanent and total disability for purposes of Boeing’s private disability plan), in Appellee’s Supp.App. at 186, and Kan. Stat. Ann. § 44-510c(a)(2) (1993) (defining “permanent total disability” under workers’ compensation statute), with 42 U.S.C. § 423(d)(2)(A) (defining “disability” for purposes of social security disability benefits).

Boeing argues that plaintiff should nonetheless be estopped from pursuing his ADA claim because he testified at his workers’ compensation settlement hearing that he could not perform his job with or without reasonable accommodation. Were we to adopt Boeing’s approach, however, we would “discourage the determination of eases on the basis of the true facts as they might be established ultimately.” United States v. 49.01 Acres of Land, 802 F.2d 387, 390 (10th Cir.1986) (quoting Parkinson v. California Co., 233 F.2d 432, 438 (10th Cir.1956)). The Federal Rules of Evidence well provide the means with which to confront plaintiff with[*1269] such inconsistency. See Fed.R.Evid. 801(d)(2) (permitting introduction in evidence of prior admission by party-opponent). Thus Aldrich’s testimony “may constitute evidence relevant to a determination of whether the plaintiff is a ‘qualified individual with a disability,’ ” Rascón at 1332, but it is not dispos-itive.

Benefit determinations under the Kansas workers’ compensation statute are made without regard to reasonable accommodation. Thus, Aldrich’s admission at the settlement hearing was not relevant to the outcome of the proceedings. We see no reason to deviate from Rascón’s logic that “statements made in connection with an application for ... disability benefits cannot be an automatic bar to a disability claim under the ADA” when such benefits are granted without regard to reasonable accommodation. Id.

Ill

The ADA provides that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). A “qualified individual with a disability” is defined as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). To establish a prima facie case under the Act, plaintiff must therefore demonstrate “(1) that he is ‘disabled’ within the meaning of the ADA; (2) that he is qualified — with or without reasonable accommodation; and (3) that he was discriminated against because of his disability.” Siemon v. AT&T Corp., 117 F.3d 1173, 1175 (10th Cir.1997) (citing White v. York Int’l Corp., 45 F.3d 357, 360-61 (10th Cir.1995)).

A

The ADA defines the term “disability” as “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2). Plaintiff contends that he qualified as disabled under the first part of this definition on November 17, 1992 — the date Dr. Morris released him to work with restrictions following the initial diagnosis of flexor tenosynovitis. [3] The district court rejected that contention, finding instead that he was suffering from a “transient nonpermanent condition” and, accordingly, that his impairment was not substantially limiting. Appellant’s App. at 875 (citing 29 C.F.R. § 1630.2(j)). [4]

While not defined by statute, the regulations implementing the ADA define the term “substantially limits” as:

(i) Unable to perform a major life activity that the average person in the general population can perform; or
(ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.

29 C.F.R. § 1630.2(j)(l). Several factors are relevant to the determination of whether an impairment is substantially limiting, including: “(i) The nature and severity of the impairment; (ii) The duration or expected duration of the impairment; and (iii) The[*1270] i permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.” 29 C.F.R. § 1630.2©(2). Although “temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities,” 29 C.F.R. pt. 1630 app., § 1630.2© (emphasis added), “an impairment does not necessarily have to be permanent to rise to the level of a disability. Some conditions may be long-term, or potentially long-term, in that their duration is indefinite and unknowable or is expected to be at least several months. Such conditions, if severe, may constitute disabilities,” EEOC, Interpretive Manual (1995), reprinted in 2 EEOC Compliance Manual § 902.4(d), at 902-30 (BNA 1997) (“EEOC Compliance Manual ”).

Boeing’s insistence that it had no duty to accommodate plaintiff under the ADA until plaintiffs doctor issued a permanent disability rating and restrictions in April 1993 is incorrect. To the extent that Boeing argues that we should adopt a per se rule that an impairment may not be regarded as a disability until it is rendered “permanent” by either a doctor’s rating or permanent restrictions, it misconstrues the law. Whether an impairment “substantially limits” a major life activity depends on the individual and the impairment. Such determinations are not susceptible to per se rules; they must be made on a case-by-case basis. See 29 C.F.R. pt. 1630 app., § 1630.2© (“The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual.”). The regulations and the EEOC’s interpretive guidelines clearly state that an impairment need not be permanent in order to rise to the level of a disability. See 29 C.F.R. § 1630.2©(2)(iii); EEOC Compliance Manual § 902.4(d), at 902-30. Thus, the issuance of a permanent disability rating in April 1993 does not necessarily answer the question of whether plaintiffs impairment previously qualified as a “disability.”

Plaintiff argues that Boeing had an ADA duty of accommodation on November 17, 1992, “when he was released to work by Dr. Morris with restrictions.” Appellant’s Br. at 23-24. We disagree. Dr. Morris’s evaluation on that date anticipated that, by applying a progressive work schedule, plaintiff would return to full working capacity within three weeks. Because Aldrich’s impairment was then characterized by his own doctor as being of short duration and negligible long-term impact, we reject Aldrich’s argument that his impairment was substantially limiting as of November 17,1992.

From December 9, 1992, however, Aldrich’s medical evaluations become considerably less optimistic. On that date, Dr. Morris wrote: “I think at this point with this individual we’re going to find he is just not going to be able to do repetitive type activities.” Appellee’s SuppApp. at 253. Two months later, Dr. Morris referred Aldrich to a Dr. Gluck for a second opinion. Dr. Gluck wrote: “I think that he has undergone [an] appropriate amount of conservative treatment with continuing significant symptoms. I think therefore he would be a good candidate for forearm fasciotomy.” Id. at 254. One month later, Dr. Morris again evaluated Aldrich, stating:

As long, as he watches what he does and utilizes some work modification and minimal intensive activity he does fairly well. As soon as he goes over that line he begins to have problems.... As far as work is concerned he is certainly going to have difficulty going back to what he previously did. I think that at this point, then, we will state he has reached his. maximum medical benefit and we will go ahead and rate him.

Id. at 255. Boeing Central Medical received copies of each of these evaluations.

Although none of these medical evaluations explicitly labels Aldrich’s condition as “permanent,” each constitutes evidence sufficient to find that plaintiffs impairment had become substantially limiting. Based on the Morris and Gluck statements, a reasonable jury could conclude that, at some point on or after December 9,1992, Aldrich’s flexor teno-synovitis was a severe condition that was permanent or was expected to persist on a long-term basis because its anticipated duration was indefinite, unknowable, or was expected to be at least several months. See EEOC Compliance Manual § 902.4(d), at 902-30; cf. Katz v. City Metal Co., 87 F.3d[*1271] 26, 32 (1st Cir.1996) (discussing plaintiffs ability to show disability in light of EEOC interpretive guidelines). The district court thus erred in concluding as a matter of law that plaintiff could not have been disabled under the ADA until his permanent disability rating was issued in April 1993.

B

In order to defeat summary judgment, Aldrich must show not only that he is disabled, but also that he is a “qualified individual.” To determine whether an individual is qualified under the ADA:

First, we must determine whether the individual could perform the essential functions of the job.... Second, if (but only if) we conclude that the individual is not able to perform the essential functions of the job, we must determine whether any reasonable accommodation by the employer would enable him to perform those functions.

White, 45 F.3d at 361-62 (quoting Chandler v. City of Dallas, 2 F.3d 1385, 1393-94 (5th Cir.1993)).

Although Aldrich concedes that he was unable to perform the essential functions of his job, he insists he would have been able to do so with reasonable accommodation. Aid-rich brings in support a report prepared by a certified professional ergonomist which concludes that modifications to his work environment and/or ergonomic training would have allowed him to perform the essential functions of his original job. The report also states that Boeing could have accommodated Aldrich by transferring him to one of several positions within his skill and grade level.

Viewing the factual record in the light most favorable to the plaintiff, we see a genuine issue of material fact concerning whether work modifications and/or ergonomic training were reasonable accommodations that would have permitted plaintiff to return to his original job as an assembly worker. We also find evidentiary support for plaintiffs argument that there existed two other positions to which he could have been reassigned as a reasonable accommodation. [5] We[*1272] consider Boeing’s statements that employees with permanent medical restrictions were eligible to. be assigned to Factory Service Attendant A positions and several were placed in those positions in December 1992 and January 1993. See Appellee’s Supp.App. at 169-170. Additionally, according to Boeing records, a requisition for a Factory Clerk C position was initiated on November 18, 1992 and filled on February 1, 1993. Id. at 151, 159. [6] Although the records indicate that this position may have been filled by an employee with Category A rights, they are inconclusive on this point because the individual who filled this position is unnamed. See id. Even if the position was filled by someone with Category A rights in February, that does not defeat plaintiffs claim that the Factory Clerk C position was available as an accommodation prior to February. Because Category A rights do not allow one employee to bump another, it is of no consequence that someone with such rights ultimately filled the position. Plaintiff may prevail so long as he was “disabled” prior to February 1 and he is able to show that transfer to the Factory Clerk C position was a reasonable accommodation.

Because we conclude that a reasonable jury could determine that plaintiffs impairment was substantially limiting for purposes of the ADA, we must also conclude that plaintiff may have been eligible for a Factory Service Attendant A or a Factory Clerk C position as early as December 1992. A genuine issue of material fact remains as to whether reasonable accommodation was feasible, either in the form of job modifications or transfer to a vacant position for which appellant was qualified. [7]

C

With respect to the final element of the prima facie case — whether plaintiff was discriminated against on account of his disability — the record contains ample evidence that Boeing placed plaintiff on involuntary medical leave because of his flexor tenosynovitis. The prima facie case requires nothing more. See White, 45 F.3d at 361 n. 6 (noting that third element of prima facie case is satisfied when employer admits disability played a role in the disputed decision). Thus, to the extent plaintiffs claim is premised on Boeing’s failure to reinstate him prior to his scheduled termination, the record is replete with evidence that such failure was a direct result of his alleged disability.

Plaintiff’s claim, however, is slightly more complex than a mere allegation of failure to reinstate. Plaintiff consistently argued below, as he does here, had Boeing offered him an accommodation, he would have survived the reduction-in-force that resulted in his termination on June 8, 1993. Although Aldrich concedes that the reduction-in-force was validly implemented, he notes that he would not necessarily have been dismissed had Boeing transferred him to a vacant position because that position might not have been subject to the reduction-in-force. To the extent plaintiffs claim is premised on the argument that workplace modifications or ergonomic training would[*1273] permit Mm to perform Ms original job, Ms own concession that the reduction-in-force was based solely on seniority limits his claim to one for backpay through June 8, 1993, because he cannot show discrimination caused the termination — he can oMy show that discrimination was the basis for being placed on involuntary medical leave.

If, however, plaintiff prevails on a theory that transfer to a Factory Service Attendant A position would have been a reasonable accommodation, there is evidence before us that supports Aldrich’s claim that he may have remained in that position through early July. See Appellant’s App. at 639, 649-50 (listing start dates and termination dates of employees in Factory Assistant A positions). There is no evidence in the record that the employee placed in the Factory Clerk C position on February 1, 1993, was ever terminated. Thus, there remains a further issue of material fact as to whether plaintiff’s employment would have continued past June 8, 1993, and, if so, for how long. We, of course, do not resolve this issue on appeal and note only that plaintiff may be able to establish that his tenure at Boeing would have been of longer duration depending on the nature of the accommodation.

We REVERSE the judgment of the district court and REMAND for further proceedings.

1

. Plaintiff also brought a retaliatory discharge claim pursuant to both the ADA and Kansas state law. He does not, however, appeal the district court’s grant of summary judgment as to that claim.

2

. Specifically, Boeing argues that Aldrich is es-topped because he testified at the workers' compensation settlement hearing as follows:

MR. BYERS [Attorney for Boeing]: Finally, I just wanted to make sure you understand and you agree that the settlement today for $30,-000.00 to be paid in a lump sum is based on the fact and the understanding that your work restrictions are permanent, meaning that they won’t be changed or lifted, and that these restrictions prevent you from performing the essential functions of the job as a sheet metal mechanic with or without accommodation?
[Kenneth Aldrich]: Yes.

Appellee’s Supp.App. at 228.

3

. Plaintiff proffers an alternative argument, asserting that Boeing knew he was disabled or regarded him as having a disability as of January 20, 1993, the date he was first assessed by the Accommodation Review Board. This claim is wholly without merit. Boeing presented uncon-troverted documentation establishing that the January 20 review was scheduled for the purpose of accommodating permanent limitations unrelated to the diagnosis of flexor tenosynovitis. See Appellee's Supp.App. at 468, 532-33.

4

. The district court’s analysis was limited to whether the original expected duration of plaintiff's impairment precluded it from being “substantially limiting" as required under the definition of disability at issue in this case. See 42 U.S.C. § 12102(2)(A). Because Boeing does not challenge that flexor tenosynovitis is an impairment or that a major life activity was affected, we do not address those elements of the definition for the purposes of this summary judgment appeal, and therefore limit our analysis to whether a temporary impairment can be substantially limiting.

5

. The remaining twenty-three jobs Aldrich proffers would not be reasonable accommodations for different reasons. Boeing presented unrebut-ted affidavits and supporting documentation indicating that no open requisitions existed from November 17, 1992, to June 8, 1993, for sixteen of the jobs. See Appellee's Supp.App. at 144-45, 150-57, 162-63. Boeing is not required to create positions merely to accommodate Aldrich. See White, 45 F.3d at 362 (citing 29 C.F.R. pt. 1630 app., § 1630.2(o)). Neither was Boeing obligated to transfer plaintiff to four of the other remaining positions — Plumber Maintenance B, A, and Special, and Millwright B — because transfer to any of those positions would have constituted a promotion. See 29 C.F.R. pt. 1630 app., § 1630.2(o) ("[A]n employer is not required to promote an individual with a disability as an accommodation."). Finally, had Boeing transferred Aldrich to any of the last three disputed jobs — Maintenance Oiler, Assembler Sub-Assembly B, and Assembler Installer General B — it would have violated the seniority provisions of the collective bargaining agreement. This is not required by the ADA. See Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir.1995) (holding transfer to another job that would violate seniority rights under collective bargaining agreement unreasonable); see also Kralik v. Durbin, 130 F.3d 76, 83 (3d Cir.1997) (“[A]n accommodation to one employee which violates the seniority rights of other employees in a collective bargaining agreement simply is not reasonable.”); Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 810 (5th Cir.1997) (“Following the other circuits which have considered this issue, we hold that the ADA does not require an employer to take action inconsistent with the contractual rights of other workers under a collective bargaining agreement.”); Eckles v. Consolidated Rail Corp., 94 F.3d 1041, 1051 (7th Cir.1996) (“[T|he ADA does not require disabled individuals to be accommodated by sacrificing the collectively bargained, bona fide seniority rights of other employees."); Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1114 (8th Cir.1995) ("The ADA does not require that [the employer] take action inconsistent with the contractual rights of other workers under a collective bargaining agreement.”); cf. Shea v. Tisch, 870 F.2d 786, 790 (1st Cir.1989) (employer "not required [under Rehabilitation Act] to accommodate plaintiff further by placing him in a different position since to do so would violate the rights of other employees under the collective bargaining agreement"); Carte r v. Tisch, 822 F.2d 465, 469 (4th Cir.1987) (duty to reassign under Rehabilitation Act "would not defeat the provisions of a collective bargaining agreement unless it could be shown that the agreement had the effect or the intent of discrimination”). But see Aka v. Washington Hosp. Ctr., 116 F.3d 876, 894-897 (D.C.Cir.) (holding terms of collective bargaining agreement only a factor in weighing reasonableness of accommodation), reh'g en banc granted and judgment vacated, 124 F.3d 1302 (D.C.Cir.1997).

6

. Despite Boeing's general contention that these records are inaccurate in places, see Appellant's Supp.App. at 144, 455, 461, it failed to submit any evidence that this particular entry was incorrect.

7

. In Hudson v. MCI Telecommunications Corp., 87 F.3d 1167, 1169 (10th Cir.1996), this court held that "a reasonable allowance of time for medical care and treatment may, in appropriate circumstances, constitute a reasonable accommodation.” Boeing's decision to place Aldrich on medical leave of absence may have been such an accommodation. See id. at 1168-69; see also Burch v. Coca-Cola Co., 119 F.3d 305, 318 n. 11 (5th Cir.1997) (employer's decision to retain employee on suspension with full pay may have been a reasonable accommodation) (citing Hudson, 87 F.3d at 1169); Hankins v. The Gap, Inc., 84 F.3d 797, 801 (6th Cir.1996) (“paid sick leave, paid personal days, a voluntary time off program, and ample and flexible vacation time” constitute reasonable accommodation); 29 C.F.R. pt. 1630 app., § 1630.2(o) (reasonable accommodations "could include permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment”); 29 C.F.R. pt. 1630 app., § 1630.15(b) & (c) ("[A]n employer ... may, in appropriate circumstances, have to consider the provision of leave to an employee with a disability as a reasonable accommodation, unless the provision of leave would impose an undue hardship."). Because Boeing does not contend, however, that it reasonably accommodated Aldrich by providing him with leave time, we decline to answer that question on appeal.