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Federal Agency Lawyer Who Sought Telework Lacks Disability Bias Claim, D.C. Circuit Rules
August 13, 2014
Source: Bloomberg BNA
A Department of Veterans Affairs lawyer with a leg impairment who quit her job rather than respond to the request from the agency for more medical documentation when she sought to work full time from home has no Rehabilitation Act discrimination claim, a split U.S. Court of Appeals for the District of Columbia Circuit ruled Aug. 12.
In a 2-1 decision, the court said Ella Ward, who resigned in June 2007 as an attorney-adviser with the Board of Veterans Appeals, lacks a triable failure-to-accommodate claim because she abandoned the interactive process by quitting rather than submitting medical information relevant to her telework request.
The Rehabilitation Act incorporates the standards of the Americans with Disabilities Act, so the discussion by the court of the respective obligations of each party when an employee requests accommodation also would apply to ADA cases involving private employers.
“No reasonable jury could find that the accommodation request by Ward was denied in light of the continuing good-faith dialogue of the board with Ward to determine an appropriate accommodation, which was cut short by her sudden resignation,” Judge Karen LeCraft Henderson wrote for the majority.
Plaintiff May Seek En Banc Review
Lawyer Karen A. Khan, who represented Ward, said she “absolutely disagrees” with the D.C. Circuit conclusion that Ward abandoned the interactive process. Rather, Ward testified the agency denied her accommodation request about two weeks before she resigned, but the appeals court ignored that factual dispute in affirming summary judgment, Khan told Bloomberg BNA Aug. 12.
Ward also worked for about a week in the office after submitting her resignation letter in which she complained to agency officials about the failure to accommodate but the agency never responded to her letter, Khan said. She asserted a jury considering all the facts could find it was the agency, not Ward, that cut off the interactive process.
Khan said she may seek full D.C. Circuit review of the case, which she would have to request within 45 days of the panel decision.
The U.S. attorney office in Washington, which represented Veterans Affairs, did not respond to a request for comment.
Employee Abandoned Process, Court Says
To show her accommodation request was denied, Ward must show either that the agency ended the interactive process or that it participated in bad faith, the court said.
But the evidence shows “the interactive process broke down before the [agency] decided on her request and no reasonable juror could have found that the [agency], rather than Ward, was responsible for the breakdown,” the court said.
In granting summary judgment to Veterans Affairs, the district court said the agency actually granted Ward her requested accommodation in August 2007, two months after she resigned, in a letter saying it would allow Ward to telework on a trial basis (2012 BL 303301 (D.D.C. 2012)). Ward ignored that letter and pursued her Rehabilitation Act claim instead.
No reasonable jury could find Veterans Affairs denied her accommodation request because she cut short the interactive process before the agency “had the information it needed to determine the appropriate accommodation,” the D.C. Circuit said.
The D.C. Circuit said it did not need to decide if Ward was granted her requested accommodation. Rather, it said the agency fulfilled its Rehabilitation Act obligations by engaging in a good-faith interactive process after Ward in March 2007 first asked to work from home in order to accommodate chronic severe lymphedema, a swelling of her right foot and leg requiring daily treatment to drain fluid from the leg.
“Supervisors promptly responded to her request for an accommodation, met with her on several occasions to discuss the request and sought more information from her physician to help them determine an appropriate accommodation,” the court said. But Ward resigned rather than provide the information requested in a June 5, 2007, letter.
“No reasonable juror could have found that the [agency] denied her request for an accommodation, then, because Ward abandoned the interactive process before the [agency] had the information it needed to determine the appropriate accommodation,” the court said.
Telework Exception, Not Rule
The dissent seems to view “the full-time telework arrangement as the rule, not the exception, and concludes that the [agency] must immediately grant the request of any fully successful employee who seeks to work from home,” Henderson wrote. “The reverse is true.”
Although it may have been reasonable to allow Ward to work from home, “it does not follow that the [agency] exhibited bad faith by not immediately granting Ward that accommodation without further inquiry,” the court said.
The court noted that “no more than three months” elapsed between the first accommodation request and her resignation.
“Had the process been allowed to play out, the [agency] might well have settled on a full-time work-from-home accommodation; it may instead have thought of other reasonable accommodations,” Henderson wrote. “Ward cannot cut the process short and then blame her employer for not immediately granting her specific request.”
“Ward is the author of her misfortune—she and the [agency] parted ways not because the [agency] discriminated or retaliated against her based on her disability but because she acted precipitately,” the court said.
The inability of Ward to raise a triable failure-to-accommodate claim means her constructive discharge claim fails as well, as that would require a finding the employer made working conditions so intolerable a reasonable person would feel forced to resign, the court said.
Judge A. Raymond Randolph joined in the majority opinion.
Agency May Be Obstructor, Dissent Says
In dissent, Judge Patricia A. Millett said a reasonable jury could find it was the agency, not Ward, that obstructed the interactive process.
A jury could find the June 5 letter sought information irrelevant as to whether Ward could perform the essential functions of the job at home and needlessly delayed a decision on admitting Ward into a “flexiplace” program the agency made available to other “fully successful” employees without requiring such extensive medical documentation, the dissent said.
Ward already had submitted two letters from doctors attesting to her condition and recommending that she work from home in order to treat her lymphedema more effectively, the dissent said.
The June 5 letter asked doctors for more information on whether she could complete her work within a 10-hour day, how long she could sit and whether she could carry heavy case files, the dissent said.
But during the litigation, the secretary of veterans affairs admitted that none of those factors was essential to resolving her accommodation request, as employees who telework may sit, stand or walk while completing their work at hours of their own choosing, provided they meet deadlines and production goals, the dissent said.
“What actually happened in this case—who is right and who is wrong—is for a jury, not an appellate court, to decide,” Millett wrote. “All that matters at this juncture is that, once the actual content of the June 5th letter and the secretary admissions are factored in, a reasonable jury could disagree with the majority opinion that supervisors were just seeking “information [they] needed to determine the appropriate accommodation” and could instead find that it was her supervisors that obstructed the accommodation process.”
The dissent would reverse summary judgment on both the failure-to-accommodate and constructive discharge claims and remand for further proceedings in district court.
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