Zenaida GARCÍA-AYALA, Plaintiff, Appellant, v. LEDERLE PARENTERALS, INC., et al., Defendants, Appellees, 212 F.3d 638

LYNCH, Circuit Judge. Zenaida Garcia-Ayala appeals an order granting

summary judgment for her former employer, Lederle Parenterals, Inc., in a suit that alleges wrongful termination and demands injunctive relief and compensatory and punitive damages under the Americans with Disabilities Act. See Garcia-Ayala v. Lederle Parentals, Inc., 20 F.Supp.2d 312, 313 (D.P.R.1998). The district court held that Garcia was not a “qualified individual” under the Act because the accommodation she requested from her employer was not “reasonable.” See id. at 315. We reverse and direct entry of judgment for the plaintiff. I. The parties stipulated to the following facts.

Garcia worked for Lederle Paren-terals, Inc. as a secretary from October 1983 to June 13, 1996, when her employment was terminated. Most recently, she was the only clerical employee in the company’s Validation Department. Lederle’s disability benefits program provides that an employee may receive up to fourteen continuous weeks of salary continuation and then short-term disability benefits (STD) at sixty percent of full salary. Under the plan, an employee could be absent from work for a twenty-six week period, work another two weeks, and then be out for an additional twenty-six weeks for the same disability.

During her employment at Lederle, Garcia used the salary continuation and short-term disability benefits on fourteen separate occasions, in addition to her sick leave. Lederle had a policy of reserving a job for one year when employees had been out on STD. It applied that policy and terminated Garcia’s employment after her one-year reservation period ended. Since 1986, García has been stricken with breast cancer and has undergone several rounds of surgery and chemotherapy. From March 15, 1987 to September 16, 1987, she was absent from work for 184 days as a result of a modified radical mastectomy.

During this period, she received salary continuation benefits for fourteen weeks, and then short-term disability for the remainder. From September 1987 until 1993 she was back at work. Six years later, in August 1993, a biopsy revealed adenocarcinoma of the breast, infiltrating duct type, persistent, and, as a result, Garcia was absent for 115 days. She then returned to work. In December 1994, Garcia was diagnosed with adenocarcinoma of the breast, metastatic. On March 17, 1995, she underwent surgery to remove a nodule in her neck.

Before that surgery, Garcia used up her sick leave and was absent from work for a total of eighty-eight and a half hours. Following surgery, she received short-term disability benefits for thirty-four consecutive days. In May, she took an additional forty-six hours of leave. From June 9 through 25, 1995, she received salary continuation benefits in relation to the medical condition. Sometime after her surgery, Garcia saw a television report on a bone marrow transplant procedure that offered a treatment for her cancer.

She was interviewed by doctors in June 1995 and Garcia informed Lederle in July that she needed to undergo this procedure, which was only available at a Chicago hospital. From August 7 through 20, 1995, she was absent due to chemotherapy (for which she took nineteen hours sick leave and short-term disability). From September 13 through 27, 1995, she was again absent due to treatment (eight hours sick leave/fifteen days of short-term disability). In October 1995, Garcia took eleven and one-half hours of sick leave. Garcia was hospitalized for the bone marrow treatment on November 14, 1995.

She received STD payments until March 19, 1996. As of that date, she started receiving long-term disability (LTD). Lederle did not consider her to be an employee once she was on LTD. On April 9, 1996, doctors certified to Lederle that Garcia would be able to return to work on July 30,1996. On June 10, 1996, Lederle’s Human Resources Director, Aida Margarita Rodriguez, called Garcia at home and asked her to come to work to meet with her.

Garcia complied and Rodriguez notified her that the company deemed her disability to have begun in March 1995, that her one-year period for job reservation had elapsed in March 1996, and that her employment was terminated. Garcia asked that her job be reserved until July 30th, when her doctors expected her to return to work, but to no avail. On June 13th, Lederle sent Garcia a letter confirming her conversation with Rodríguez and denying her request for additional leave.

As it turned out, although Garcia had requested an accommodation until July 30th, it was on August 22, 1996 that Garcia’s doctors released her for work, though they did not notify Lederle of this and Garcia did not re-apply for employment. Garcia’s essential job functions did not go unfilled. At least three different temporary employees provided by agencies performed Garcia’s tasks at Lederle during her medical leave and after her dismissal. Indeed, from June 13, 1996, to January 31, 1997, a period of over seven months from Garcia’s dismissal, the company chose to use temporary employees.

The company says her position was never filled by a permanent employee. There was no evidence that the temporary employees cost Lederle any more than Garcia would have or that their performance was in any way unsatisfactory. II. On May 16, 1997, Garcia brought suit against Lederle, its parent companies, American Home Products Corp. and American Cynamid Co., and others for alleged violations of the ADA and Puerto Rico Act No. 44 of July 2, 1985, P.R. Laws Ann. tit. 1, §§ 501 et seq., as a result of the termination of her employment following surgery for breast cancer.

She seeks back pay, reinstatement (or “front pay”), injunc-tive relief from future discrimination, compensatory and punitive damages, and attorney’s fees. On March 30, 1998, the parties submitted a stipulation of material facts together with a Motion Submitting Stipulation of Uncontested Material Facts and Legal Controversies. On September 28, 1998, the court granted Lederle’s cross-motion for

summary judgment, denied Garcia’s motion for

summary judgment, declined to exercise its supplemental jurisdiction over Garcia’s claim under Act 44, and dismissed the case. See Garcia-Ayala, 20 F.Supp.2d at 313. Garcia appeals. III. There is some disagreement as to what happened at the trial court and, resultantly, as to the standard of review to be applied by this court on an appeal from

summary judgment entered after cross-motions. Citing Reich v. John Alden Life Insurance Co., 126 F.3d 1, 6 (1st Cir.1997), and United Paperworkers International Union, Local 14 v. International Paper Co., 64 F.3d 28, 31 (1st Cir.1995), both Lederle and Garcia have argued that dear-error review should apply to the factual inferences made by the district court since the decision below was based on stipulated facts and made on cross-motions for

summary judgment. But see Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir.1996) (“Cross motions for

summary judgment neither alter the basic Rule 56 standard, nor warrant the grant of

summary judgment per se.”). The EEOC, appearing as amicus curiae, urges de novo review, the customary standard for appellate review of

summary judgment. The district court opinion in this jury-claimed case does not discuss whether there was a waiver of jury trial rights or a stipulation under Federal Rule of Civil Procedure 39(a)(1), or whether it was resolving the matter on a jury-waived and a “case stated” basis or on conventional

summary judgment; the order entered was for

summary judgment (although the opinion once used the phrase “The Court finds”). Out of the confusion, we think it wise to reiterate a few basics. For the purposes of standard of appellate review in these circumstances, there is usually a distinction between non-jury and jury cases.

This circuit, in United Paperworkers, held that: [i]n a nonjury case, when the basic dispute between the parties concerns only the factual inferences that one might draw from the more basic facts to which the parties have agreed, and where neither party has sought to introduce additional factual evidence or asked to present witnesses, the parties are, in effect, submitting their dispute to the court as a case stated. Id. (internal quotation marks omitted) (emphasis added). We have reached the same result in other non-jury cases. See Reich, 126 F.3d at 6; EEOC v.

Steamship Clerks Union 1066, 48 F.3d 594, 603 (1st Cir.1995); Continental Grain Co. v. Puerto Rico Maritime Shipping Auth., 972 F.2d 426, 429-30 & n. 7 (1st Cir.1992); Boston Five Cents Savings Bank v. Secretary of the Dep’t of Housing & Urban Dev., 768 F.2d 5, 11-12 (1st Cir.1985); Federación De Empleados Del Tribunal Gen. De Justicia v. Torres, 747 F.2d 35, 36 (1st Cir.1984); cf. Posadas de Puerto Rico, Inc. v. Radin, 856 F.2d 399, 400-01 (1st Cir.1988) (same where only one side moved for

summary judgment). In such cases, “[t]he standard for appellate review ... shifts from de novo review to clear-error review; that is, the district court’s factual inferences should be set aside only if they are clearly erroneous.” United Paperworkers, 64 F.3d at 31. This rule evolved from—and makes sense in—bench trial cases. See 10A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 2720, at 338-39 (1998) (referring to this practice in non-jury cases).

Instead of expending time and money on a trial, the parties may decide that the pretrial record establishes all the necessary grounds upon which a judge may enter a final ruling on one or all of the issues in dispute. See, e.g., Allen v. United Mine Workers of America, 1979 Benefit Plan & Trust, 726 F.2d 352, 353 (7th Cir.1984). They are, in essence, skipping trial and proceeding directly to judgment, submitting the case to the judge as stated.

When determining whether this was the path taken by the parties in non-jury cases, this circuit and others inquire into the intentions of the parties and the district court judge, as evidenced by the record on appeal. See United Paperworkers, 64 F.3d at 31-32 & n. 2; see also, e.g., Sherwood v. Washington Post, 871 F.2d 1144, 1147 n. 4 (D.C.Cir.1989); Wolfe v. United States, 798 F.2d 1241, 1243 n. 2 (9th Cir.), amended on other grounds, 806 F.2d 1410, 1411 (9th Cir.1986); Donovan v. DialAmerica Marketing, Inc., 757 F.2d 1376, 1381-82 (3d Cir.1985); EEOC v.

Maricopa County Community College Dist., 736 F.2d 510, 512-13 (9th Cir.1984); Satellite Television & Associated Resources, Inc. v. Continental Cablevision of Va., Inc., 714 F.2d 351, 354 (4th Cir.1983); Wilson v. Block, 708 F.2d 735, 745 n. 7 (D.C.Cir.1983); Crow v. Gullet, 706 F.2d 856, 858 & n. 3 (8th Cir.1983); Lac Courte Oreilles Band v. Voigt, 700 F.2d 341, 349 (7th Cir.1983); Toney v. Bergland, 645 F.2d 1063, 1066 (D.C.Cir.1981) (per curiam); Nielsen v. Western Elec. Co., 603 F.2d 741, 743 (8th Cir.1979); Vetter v. Frosch, 599 F.2d 630, 632-33 (5th Cir.1979); U.S. Manganese Corp. v.

Merrill Lynch, Pierce, Fenner & Smith, Inc., 576 F.2d 153, 156 (8th Cir.1978); United States v. Fred A. Arnold, Inc., 573 F.2d 605, 606-07 (9th Cir.1978) (per curiam); United States v. Articles of Device Consisting of Three Devices ... “Diapulse”, 527 F.2d 1008, 1011 (6th Cir.1976); Starsky v. Williams, 512 F.2d 109, 112 (9th Cir.1975); Tripp v. May, 189 F.2d 198, 199-200 (7th Cir.1951). See generally Edward J. Brunet, Martin H. Redish, & Michael A. Reiter,

Summary Judgment: Federal Laxo and Practice § 8.01, at 232-34 (1994); William W. Schwarzer, Alan Hirsch, & David J. Barrans, The Analysis and Decision of

Summary Judgment Motions 40-41 (1991). Jury trial cases are treated differently. This court, like nearly all other courts, has refused to make the “case stated” inquiry when one of the parties has requested trial by jury. See United Paperworkers, 64 F.3d at 31 (specifying that the case stated inquiry is limited to non-jury cases); see also Winter v. Minnesota Mutual Life Ins. Co., 199 F.3d 399, 405-08 (7th Cir.1999) (same); Colan v. Mesa Petroleum Co., 951 F.2d 1512, 1517-18 (9th Cir.1991) (same); Satellite Television, 714 F.2d at 354 (same); Tripp, 189 F.2d at 200 (same); cf. TransWorld Airlines, Inc. v.

American Coupon Exch., Inc., 913 F.2d 676, 684-85 (9th Cir.1990) (similar where only one side moved for

summary judgment); Nunez v. Superior Oil Co., 572 F.2d 1119, 1124 (5th Cir.1978) (same). Thus, unsurprisingly, we have reviewed judgments based on cross-motions for

summary judgment in jury trial cases de novo. See, e.g., Den Norske Bank AS v. First National Bank of Boston, 75 F.3d 49, 53 (1st Cir.1996). The distinction between bench and jury trials is appropriate since the right to a jury trial is constitutionally protected and casual waivers are not to be presumed. See U.S. Const. amend. VII; Fed.R.Civ.P. 38(d); Winter, 199 F.3d at 407 n. 11; Indiana Lumbermens Mutual Ins. Co. v. Timberland Pallet & Lumber Co., 195 F.3d 368, 374 (8th Cir.1999); Jennings v. McCormick, 154 F.3d 542, 545 (5th Cir.1998); LaMarca v.

Turner, 995 F.2d 1526, 1544 (11th Cir.1993); Tray-Wrap, Inc. v. Six L’s Packing Co., 984 F.2d 65, 67-68 (2d Cir.1993); Mondor v. U.S. Dist. Ct. for the Cent. Dist. of Cal., 910 F.2d 585, 587 (9th Cir.1990). But application of these principles to this case is not straightforward, and we decide the issue of standard of review here tinder two different doctrines: Federal Rule of Civil Procedure 39(a)(1) and waiver. We determine that Garcia agreed, pursuant to Rule 39(a)(1), that the issue's of liability presented for the purposes of the

summary judgment cross-motions could be determined by the court, in light of the stipulation filed that “the parties ... submit the material facts in this matter to the Court for adjudication on the merits on the legal controversies in this matter.” Further, plaintiff has urged upon us a clear error standard of review. Although at oral argument plaintiffs counsel said she did not intend to waive her jury trial right, she did not brief this issue on appeal and so she is bound. See Piazza v. Aponte Roque, 909 F.2d 35, 37 (1st Cir.1990); Fed.R.App. P. 28(a).

In light of the wording of the stipulation, together with the fact that Garcia, on appeal, has said that review is for clear error (and-not de novo), we treat this, for present purposes, as an appeal from a determination after a Rule 39(a)(1) consent. Consequently, we proceed as if the parties submitted the case to the district court judge as stated, and review of the determination of the district court is for clear error. IV. Garcia claims that Lederle violated the ADA when the company fired her after she requested additional leave supplemental to her sick and disability leave.

Section 102(

a) of the ADA states: “No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to ... discharge of employees.... ” 42 U.S.C. § 12112(a). Lederle’s primary defense at

summary judgment was that Garcia was not a qualified individual because the accommodation she sought was not reasonable. Lederle offered no evidence or argument that the requested accommodation was an undue hardship. In fact, Lederle’s appellate argument is inconsistent with its factual stipulation that Garcia’s position was terminated because her one-year period of leave had expired. That was the reason the company gave in its letter of termination to García.

The company’s apparent position that the ADA can never impose an obligation on a company to grant an accommodation beyond the leave allowed under the company’s own leave policy is flatly wrong under our precedent. See, e.g., Ralph v. Lucent Technologies, Inc., 135 F.3d 166, 171-72 (1st Cir.1998). The district court order ignored the position stated in the record by the company and went instead to the issue of the reasonableness of the accommodation.

To establish an ADA claim, a plaintiff must prove by a preponderance of the evidence: first, “that she was disabled within the meaning of the Act; second, ... that with or without reasonable accommodation she was a qualified individual able to perform the essential functions of the job; and third, ... that the employer discharged her because of her disability.” Criado v. IBM Corp., 145 F.3d 437, 441 (1st Cir.1998); accord Feliciano v. Rhode Island, 160 F.3d 780, 784 (1st Cir.1998); Soto-Ocasio v. Federal Express Corp., 150 F.3d 14, 18 (1st Cir.1998). The parties focus on the second of these three elements.

Both the EEOC and Garcia argue that the district court erroneously shifted the burden as to this factor. In order to be a “qualified individual” under the Act, the burden is on the employee to show: first, that she “possess[es] ‘the requisite skill, experience, education and other job-related requirements’ for the position, and second, [that she is] able to perform the essential functions of the position with or without reasonable accommodation.” Criado, 145 F.3d at 443 (quoting 29 C.F.R. § 1630.2(m)); see also 42 U.S.C. § 12111(8); Cleveland v. Policy Mgmt. Sys.

Corp., 526 U.S. 795, 119 S.Ct. 1597, 1603, 143 L.Ed.2d 966 (1999). There is no question here as to the first of these two prerequisites. The court correctly stated that “it is [the] plaintiffs burden to prove that, at the time she sought to resume her job, she had the ability to perform the essential functions of secretary to the Validation Department.” Garcia-Ayala, 20 F.Supp.2d at 314. But the statute also places the burden on the defendant to show that an accommodation would be an undue hardship.

See 42 U.S.C. § 12112(b)(5)(A) (stating that the term “discriminate” includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an ... employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered identity”); The court also went on to say, “[o]f course, an essential function of any job is the ability to appear for work.” Id. (citations omitted).

The court then held that Garcia’s request for additional leave (until July 30, 1996) “was not reasonable under the circumstances” because “defendants had no guarantee that the additional leave requested was for a definite period of time and ‘[n]othing in the text of the reasonable accommodation provision requires an employer to wait an indefinite period for an accommodation to achieve its intended effect.’ ” Id. at 315 (quoting Myers v. Hose, 50 F.3d 278, 283 (4th Cir.1995)).

The court also found that, although “some situations might mandate unpaid leave of absence as an appropriate accommodation,” a five-month job reservation, “in excess of established policy[,] placets] the employer in an untenable business position.” Garcia-Ayala, 20 F.Supp.2d at 315. The district court, in our view, committed two types of errors. A. Individualized Assessment It appears from the court’s statements that it was applying per se rules, and not giving the type of individual assessment of the facts that the Act and the case law requires.

The Supreme Court has deemed “essential” individualized attention to disability claims. See School Bd. v. Arline, 480 U.S. 273, 287, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987). As we said in Criado, “[w]hether [a] leave request is reasonable turns on the facts of the case.” Criado, 145 F.3d at 443; see also Kennedy v. Dresser Rand Co., 193 F.3d 120, 122 (2d Cir.1999). It is simply not the case, under our precedent that an employee’s request for an extended medical leave will necessarily mean, as the district court suggested, that the employee is unable to perform the essential functions of her job.

First, the court did not focus on the employer’s statement that the reason that it terminated Garcia was because her medical leave period, under company policy, had expired. The court essentially found that a requested accommodation of an extension of a leave on top of a medical leave . of fifteen months was per se unreasonable. But reasonable accommodations may include “job restructuring, part-time or modified work schedules, ... and other similar accommodations for individuals with disabilities.”' 42 U.S.C. § 12111(9)(B).

This court and others have held that a medical leave of absence — Garcia’s proposed accommodation — is a reasonable accommodation under the Act in some circumstances. See Criado, 145 F.3d at 443-44; Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir.1999); Cehrs, 155 F.3d at 782 (citing Criado); Haschmann v. Time Warner Entertainment Co., 151 F.3d 591, 601 (7th Cir.1998); Rascon v. U S West Communications, Inc., 143 F.3d 1324, 1333-34 (10th Cir.1998). Our concern that the court applied per se rules — rather than an individualized assessment of the facts — is heightened by other statements.

Here, the leave that Garcia requested on June 10 was for less than two months. The "district court viewed the request as being for five months, since Rodriguez had advised Garcia, albeit in June, that a one-year period for job reservation had lapsed in March. Even if the request were for an additional five months of unpaid leave, we see no reason to adopt a rule on these facts that the additional medical leave sought would be per se an unreasonable accommodation.

Well after her termination, as well as during her medical leave, Lederle filled Garcia’s secretarial position with individuals hired from temporary agencies. Lederle had no business need apparent from this record to replace Garcia with an in-house hire, and hence would not have suffered had it waited for several more months until Garcia’s return. In Ralph v. Lucent Technologies, Inc., 135 F.3d 166, 171-72 (1st Cir.1998), the court held that a four-week additional accommodation, beyond a fifty-two week leave period for mental breakdown, was reasonable for purpose of a preliminary injunction.

The district court’s statement that the employer was left in an “untenable business position” also reinforces the sense of the use of per se rules and the lack of focus on the facts of this case, given that the employer put on no evidence of undue hardship. Similarly, the court viewed Garcia’s requested accommodation — additional leave time with a specific date for return — as a request .that her job be held open indefinitely.

Lederle had argued that since Garcia’s doctor could not give absolute assurances that she would be fit to return to work on July 30th, the request was per se for an indefinite leave and so was unreasonable. Garcia specified, however, when she would return, and her doctor released her for return several weeks thereafter. There is no evidence that either July 30th or the August 22nd date of medical release, would have imposed any specific hardship on Lederle.

Some employees, by the nature of their disability, are unable to provide an absolutely assured time for their return to employment, but that does not necessarily make a request for leave to a particular date indefinite. Each case must be scrutinized on its own facts. An unvarying requirement for definiteness again departs from the need for individual factual evaluation. See Haschmann, 151 F.3d at 599-600; Criado, 145 F.3d at 443-44; Rascon, 143 F.3d at 1333-34; Kimbro v. Atlantic Richfield Co., 889 F.2d 869, 878-79 (9th Cir.1989) (interpreting analogous state statute).

Of course, that a leave is not indefinite does not make it reasonable. Even short leaves may inflict undue hardship in a given employment situation, and there may be requested leaves so lengthy or open-ended as to be an unreasonable accommodation in any situation. B. Reasonable Accommodation and Undue Hardship The parties requested that the court determine the issue of liability on the basis of the facts before it.

While the burden of showing reasonable accommodation is on the plaintiff, this is a case in which the employer did not contest the reasonableness of the accommodation except to embrace a per se rule that any leave beyond its one-year reservation period was too long. The employer, Lederle, has the burden of proof on the issue of undue hardship, and it did not put on any evidence of undue hardship from Garcia’s proposed accommodation. See Ward v. Massachusetts Health Research Institute, Inc., 209 F.3d 29 (1st Cir.2000) (reversing

summary judgment in an ADA case where the employer had produced no evidence of undue hardship). While on different facts, a request for an extended leave could indeed be too long to be a reasonable accommodation and no reasonable factfinder could conclude otherwise, that is not this case for a number of reasons. It does not appear that Garcia expected to be paid for the additional weeks away from work beyond those allowed under the employer’s disability benefits program and while her job functions were being performed by temporary help.

There is no evidence that the temporary employees were paid more than Garcia or were less effective at her job than she. Indeed, Lederle’s continued use of temporary employees and Lederle’s failure to replace Garcia indicates the contrary. There was, therefore, no financial burden on the employer from paying an employee who was not performing. It is true that an employer usually needs to have the functions of a job filled, and the fact that essential functions have gone unfilled for a lengthy period could well warrant judgment for an employer.

But here, the essential functions of the job were filled, to all indications satisfactorily, by temporary employees. The use of temporary employees is not, of course, always a satisfactory or even a possible solution. But here, there is no evidence that Lederle was under business pressure to fill the slot with another permanent employee (indeed, it never did). In other situations, temporary replacements may be unavailable or unsuited to the position; here, the available evidence is all to the contrary.

In addition, as said, there is no evidence that the cost of the temporary help was greater than the cost of a permanent employee; one might suppose it was less. Thus, the requested accommodation of a few additional months of unsalaried leave, with the job functions being satisfactorily performed in the meantime, is reasonable. The employer presented the court with no evidence of any' hardship, much less undue hardship. On this record, we see no basis for the court to do other than enter judgment for Garcia.

Under the EEOC guidelines, 29 C.F.R. § 1630.2(p), factors to be considered as to undue hardship include the cost of the accommodation, the effect on expenses and resources, the impact of the accommodation on the operation of the facility (including on other employees’ ability to do their jobs) and the impact on the facility’s ability to conduct business. On this record there is no discernible negative impact on any of these factors; indeed, the record shows hardly any discernable impact at all on the employer from the requested accommodation.

As it was the employer’s burden to produce evidence of hardship, we hold that it must bear the responsibility for the absence of such evidence here. We stress that the Act does not require employers to retain disabled employees who cannot perform the essential functions of their jobs without reasonable accommodation. Applying this rule to the prolonged disability leave situation is tricky, however.

An absent employee obviously cannot himself or herself perform; still, the employer may in some instances, such as here, be able to get temporary help or find some other alternative that will enable it to proceed satisfactorily with its business uninterrupted while a disabled employee is recovering. In situations like that, retaining the ailing employee’s slot while granting unsalaried leave may be a reasonable accommodation required by the ADA.

If, however, allowing the sick employee to retain his or her job places the employer in a hardship" situation where it cannot secure in some reasonable alternative way the services for which it hired the ailing employee, and yet is blocked from effecting a rehire, the ADA does not require the retention of the disabled person. Hence, where it is unrealistic to expect to obtain someone to perform those essential functions temporarily until the sick employee returns, the employer may be entitled to discharge the ill employee and hire someone else.

An exception to this might be if the requested disability leave was so brief that no undue business harm could reasonably be expected to occur from not filling the vacancy. We add that our analysis, while applicable to these facts, may not be applicable in other cases. Undue hardships are not limited to financial impacts; the term includes accommodations that are unduly extensive, substantially disruptive, or that would fundamentally alter the nature or operation of the business. See 29 C.F.R. pt. 1630, App.

Other factors to be considered as to whether requests for leaves of absence are unreasonable include, for example: where the employee gave no indication as to when she might be able to return to work, and, instead, she simply demanded that her job be held open indefinitely, see, e.g., Taylor v. Pepsi-Cola Co., 196 F.3d 1106, 1110 (10th Cir.1999); Watkins v. J & S Oil Co., 164 F.3d 55, 62 (1st Cir.1998) (citing Myers); Corder v. Lucent Technologies Inc., 162 F.3d 924, 928 (7th Cir.1998); Duckett v. Dunlop Tire Corp., 120 F.3d 1222, 1226 (11th Cir.1997) (per curiam); Rogers v.

International Marine Terminals, Inc., 87 F.3d 755, 759-60 (5th Cir.1996); where the employee’s absences from work were “erratic” and “unexplained,” see, e.g., Waggoner v. Olin Corp., 169 F.3d 481, 484-85 (7th Cir.1999); where, upon the employee’s return to work, she would be unqualified, see, e.g., Tyndall v. National Educ. Ctrs., Inc., 31 F.3d 209, 213-14 (4th Cir.1994); and where the employee was hired to complete a specific task, see, e.g., Stubbs v. Marc Center, 950 F.Supp. 889, 893-95 (C.D.Ill. 1997). Cf. generally Micari v.

TransWorld Airlines, Inc., 43 F.Supp.2d 275, 281-82 (E.D.N.Y.1999) (collecting cases); Powers v. Polygram Holding, Inc., 40 F.Supp.2d 195, 199-201 (S.D.N.Y.1999) (same). In addition, this court has inquired into whether the company had made earlier policy decisions that it was more profitable to permit an employee additional leave than to hire and train a new employee. See Criado, 145 F.3d at 444. These are difficult, fact intensive, case-by-case analyses, ill-served by per se rules or stereotypes.

We emphasize that the stipulated record here contains no evidence whatever of any form of hardship to Lederle as a result of the requested accommodation. Were this not so, we would feel obligated to return the case to a fact-finder for further evaluation. But given the employer’s failure to meet, even minimally, its burden of proof on the issue of hardship, we award judgment to Garcia as a matter of law. V. We reverse the entry of judgment in favor of Lederle, direct entry of judgment on liability under the ADA for García, and remand the case for further proceedings in accordance with this opinion. So ordered.

Costs to appellant. . The correct name of the lead defendant in this case is “Lederle Parenterals, Inc." and not "Lederle Parentals, Inc.,” as the district court opinion is captioned. .

The parties made a joint “Motion Submitting Stipulation of Uncontested Material Facts and Legal Controversies,” and claimed "[t]here being no genuine controversy as to the material facts in this matter, the parties stipulate the same, and submit the material facts to the Court for adjudication on the merits of the legal controversies in this matter.” .At oral argument on appeal, counsel for Garcia disavowed any intent not to have a jury trial.

But that may have been a statement as to trial on damages, once the district court ruled on liability, and thus consistent with the position in counsel’s brief on the standard of review. . In these non-juiy cases, problems arise for appellate courts when the record is unclear that this is what the parties and the trial judge meant to do.

Consequently, when a claim is made on appeal that the case below was decided as a "case stated,” appellate courts invariably look quite carefully at the proceedings in the trial court to make sure that the parties had "willingly foregone their right to a full trial.” Acuff-Rose Music, Inc. v. Jostens, Inc., 155 F.3d 140, 143 (2d Cir.1998). . Some circuits require "explicit waiver” of trial. Acuff-Rose Music, Inc. v. Jostens, Inc., 155 F.3d 140, 142-43 (2d Cir.1998); see also Miller v. LeSea Broadcasting, Inc., 87 F.3d 224, 230 (7th Cir.1996); May v. Evansville-Vanderburgh Sch.

Corp., 787 F.2d 1105, 1115—16 (7th Cir.1986). . We note that cross-motions for

summary judgment, in and of themselves, do not constitute waiver of jury trial. See Winter, 199 F.3d at 407-08; Miller, 87 F.3d at 230; Market St. Associates Ltd. Partnership v. Frey, 941 F.2d 588, 590 (7th Cir.1991); John v. Louisiana, 757 F.2d 698, 705 (5th Cir.1985). We have found only two cases that have applied the clearly erroneous standard of review to jury trial cases decided on cross-motions for

summary judgment. See Southwest Forest Indus., Inc. v. Westinghouse Elec. Corp., 422 F.2d 1013, 1017-18 (9th Cir.1970); Gillespie v. Norris, 231 F.2d 881, 883-84 (9th Cir.1956). But cf. Page v. Work, 290 F.2d 323, 334 (9th Cir.1961) (per curiam) (upon rehearing, reversing, in a jury trial case, earlier finding that the case had been submitted on the record). . Lederle's argument ignores our case law that "[although the qualification analysis could be understood to subsume the concept of reasonable accommodation, we think it analytically sounder to treat the two topics separately.” EEOC v.

Amego, Inc., 110 F.3d 135, 141 (1st Cir.1997). . Citing Duckworth v. Pratt & Whitney, Inc., 152 F.3d 1 (1st Cir.1998), Lederle claims that no relief may be granted to Garcia because she did not seek reinstatement. As is evident from a reading of that opinion, Duckworth does not stand for that proposition. . Lederle’s argument that there was no intent to discriminate based on disability misses the important point that the ADA does more than prohibit disparate treatment. It also imposes .an affirmative obligation to provide reasonable accommodation to disabled employees. See Soileau v.

Guilford of Me., Inc., 105 F.3d 12, 14-15 (1st Cir.1997). .In Feliciano, we said that "[t]he plaintiff, as the party who must prove that he or she can perform the essential functions of the position with or without reasonable accommodation, bears the burden of showing the existence of a reasonable accommodation.” Feliciano, 160 F.3d at 786 (citing Barnett v. U.S. Air, Inc., 157 F.3d 744, 748-49 (9th Cir.1998)). . Perhaps, alternatively, the statement was only hyperbole. .

The approach urged by Lederle on the district court also ignores "[t]he duty to provide reasonable accommodation is a continuing one ... and not exhausted by one effort." Ralph v. Lucent Technologies, Inc., 135 F.3d 166, 171-72 (1st Cir.1998). It is an interactive process that "requires a great deal of communication between the employee and employer." Criado, 145 F.3d at 444 (internal quotation marks and citation omitted); see also Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 693 (7th Cir.1998) (describing the interactive process); Jacques v.

Clean-Up Group, Inc., 96 F.3d 506, 515 (1st Cir.1996) ("There may well be situations in which the employer's failure to engage in an informal interactive process would constitute a failure to provide reasonable accommodation that amounts to a violation of the ADA.”). Here, Lederle failed to engage in the informal, interactive process.

It simply rejected the request for the accommodation without further discussion and it did so without pointing to any facts making the accommodation harmful to its business needs. .We are aware of, but see no reason to join, the debate in the circuits on the relationship between the two concepts of undue hardship and reasonable accommodation. Compare Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138-39 (2d Cir.1995); Walton v. Mental Health Assoc., 168 F.3d 661, 670 (3d Cir.1999); and Stone v. City of Mount Vernon, 118 F.3d 92, 98-99 (2d Cir.1997); with Benson v.

Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir.1995); and White v. York Int’l Corp., 45 F.3d 357, 361 (10th Cir.1995); and with Barth v. Gelb, 2 F.3d 1180, 1186 (D.C.Cir.1993); Willis v. Conopco, Inc., 108 F.3d 282, 285-86 (11th Cir.1997); Barnett v. U.S. Air, Inc., 157 F.3d 744, 748-49 (9th Cir.1998), amended by 196 F.3d 979, 989 (9th Cir.1999), and withdrawn pending en banc review, 201 F.3d 1256 (9th Cir.2000); Riel v. Electronic Data Sys. Corp., 99 F.3d 678, 682-83 (5th Cir.1996); Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1183, 1186 n. 12 (6th Cir.1996); and Vande Zande v.

Wisconsin Dept. of Admin., 44 F.3d 538, 542-43 (7th Cir.1995).