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Employee’s resignation short-circuited reasonable accommodation opportunity

By Ronald Miller, J.D.

A disabled worker was the author of her own misfortune where she prematurely resigned her employment without giving her employer the opportunity to fully consider her “work-from-home” accommodation request, ruled a divided D.C. Circuit. Here, the appeals court concluded that the employee abandoned the interactive process before the employer had the information it needed to determine the appropriate accommodation. As a consequence, the appeals court affirmed the district court’s grant of summary judgment in favor of the employer on her failure to accommodate and constructive discharge claims. Judge Millett filed a dissenting opinion (Ward v McDonald, August 12, 2014, Henderson, K).

An attorney with the Department of Veterans Affairs (VA) developed a medical condition that prevented her from sitting at a desk for long periods. She sought an accommodation allowing her to work full-time from home, and provided the VA with two physicians’ letters supporting her request. However, her supervisors asked for additional information to use in determining a reasonable accommodation. The employee resigned and filed suit alleging that the VA violated her rights under the Rehabilitation Act by failing to accommodate her disability. She also claimed that she was constructively discharged because the failure to accommodate left her no choice but to resign. The district court granted summary judgment to the VA Secretary on both claims. This appeal followed.

The basic tenet of the Rehab Act is that the government must take reasonable affirmative steps to accommodate the handicapped, except where undue hardship would result. The employee served as an attorney adviser for appeals of veterans’ benefit claims. Her only physical duty was to carry sometimes unwieldy case files. In 2005, she began to suffer chronic severe lymphedema of the lower right extremity, which caused her leg and foot to swell. The condition substantially limited her ability to go up and down stairs, carry moderately heavy case files, and travel to and from work. It was exacerbated by long periods of sitting at a desk. Treatments to manage the condition took one to three hours.

In 2006, the employee converted to part-time status for a few months to receive treatments at a hospital. After returning to full-time status, she took FMLA leave. By her own admission, she struggled to meet the expectations of her job. In 2007, the employee’s condition worsened and she first requested accommodation. In April, she presented her supervisor with a letter from her doctor outlining her medical treatments. The letter concluded that the employee “will benefit from a schedule that allows her to work from home.” On May 3, she met with supervisors to discuss her request. The supervisors asked for more detail about her condition. In response, the employee submitted a letter from a second doctor containing information about her condition, and requesting a “work-at-home” accommodation.

The employee’s supervisor told the employee to consider working part-time because he was concerned that she could not maintain a full-time schedule given the length of her daily treatments. After a follow-up meeting, the employer sent the employee a memo stating that it would strive to make a reasonable accommodation, but raised concerns about the work-at-home arrangement. The memo did not state any decision on the employee’s accommodation request. The employee did not respond to the memo, but instead tendered her resignation. Contending that she had been forced to resign because of the employer’s discriminatory actions in denying a reasonable accommodation, she filed suit. The district court granted summary judgment to the VA on her claims.

Failure to accommodate. To prevail on her claim that the employer failed to accommodate her disability, the employee had to produce sufficient evidence that (1) she was a qualified individual with a disability, (2) the employer had notice of her disability and (3) it denied her request for a reasonable accommodation. It was undisputed that the employer had notice of the employee’s condition. However, the D.C. Circuit agreed with the trial court’s determination that she failed to satisfy the third element, concluding that no reasonable jury could find that her accommodation request was denied in light of the employer’s continuing good-faith dialogue to determine an appropriate accommodation.

Here, the court observed that the interactive process broke down before the employer decided on the employee’s request, and no reasonable jury could have found that the employer, rather than the employee, was responsible for that breakdown. After the employee asked for an accommodation, she provided the employer with a letter saying little more than that she was receiving treatment for a chronic medical condition and would benefit from working at home. However, the letter cast doubt on her capacity to continue working full-time. The supervisors requested more information about her condition, and twice met with her to discuss her request. After the employer set forth in writing precisely the information it needed to reasonably accommodate her request, the employee did not respond but resigned six days later.

The D.C. Circuit concluded that the employer’s participation bore all the hallmarks of good faith. Her 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 employee did not provide the requested information, but instead resigned. Thus, the interactive process broke down when the employee “walked away.” No reasonable juror could have found that the employer denied her request for an accommodation because she abandoned the interactive process before the employer had the information it needed to determine the appropriate accommodation. As a consequence, the district court correctly awarded summary judgment to the employer because the employee failed to make a showing sufficient to establish the existence of an essential element of her case.

Constructive discharge. The employee also contended that she was constructively discharged because the employer’s continuing delay in accommodating her limitations made working conditions so intolerable that any reasonable person with her disability would have felt compelled to resign. A claim of constructive discharge based on disability discrimination “must be predicated on a showing of either intentional discrimination, or retaliation.” The court had already concluded that the employer did not deny the employee’s accommodation request but rather responded promptly and in good faith. The employee’s inability to make out a claim of failure to accommodate necessarily meant that her constructive discharge claim also failed.

Dissent. In a dissenting opinion, Judge Millett argued that what actually happened in this case was for a jury, not an appellate court, to decide. According to the dissent, a reasonable jury could disagree with the majority that the employee’s supervisors were just seeking information that they needed to determine the appropriate accommodation, and instead find that it was the employee’s supervisors that obstructed the accommodation process. The dissent argued that all the employee asked for was the same flexiplace program afforded other employees in her position. Her supervisors’ withholding of that readily available accommodation until she chased down admittedly unneeded information is precisely the type of conduct the Rehabilitation Act was meant to stop, declared the dissent.