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Rehab Act claims of visually impaired employee denied request for meeting materials revived

By Kathleen Kapusta, J.D.

A reasonable jury could find a visually impaired employee’s request that materials for on-site meetings be distributed to her in large font, or in advance, was a reasonable accommodation, held the Fifth Circuit, noting that it has explicitly rejected the requirement that in order to constitute a reasonable accommodation, requested modifications must be necessary to perform essential job functions. In an unpublished decision, the court vacated the grant of summary judgment against the employee’s Rehab Act discrimination and retaliation claims (Stokes v. Nielsen, October 4, 2018, per curiam, unpublished).

For 18 years, the Department of Homeland Security operations support specialist arranged employee travel. Blind in her right eye and with reduced vision in her left, she was provided with multiple accommodations including a workstation with natural lighting, special lightbulbs, multiple monitors, and magnifying software and equipment.

Accommodation request. In 2014, she requested that, if materials were to be passed out or displayed at on-site meetings, they be distributed to her either in large font or in advance so she could review them using her workstation magnification equipment. Although her supervisors assured her these accommodations would be provided, they never were.

Lawsuit. She ultimately filed suit against the DHS, asserting among other things that she was denied a reasonable accommodation. Several months later, she received a failing performance review, which disqualified her for a pay increase. She then filed an amended complaint asserting that the performance review was a retaliatory adverse employment action.

Fifth Circuit standard. In granting summary judgment against her reasonable accommodation claim, the district court, citing the Seventh Circuit’s 2013 decision in Brumsfield v. City of Chicago, held that because a reasonable accommodation is only required when necessary to perform an essential function of the job, a reasonable trier of fact could not find DHS failed to reasonably accommodate the employee’s disability. But the Fifth Circuit has explicitly rejected the requirement that requested modifications must be necessary to perform essential job functions to constitute a reasonable accommodation, the court noted here. Further, the district court relied upon this incorrect standard to assess whether the employee’s requested accommodation was reasonable.

Reasonable accommodation. Applying the correct legal standard, a reasonable jury, said the court, could find that the requested meeting materials were a reasonable accommodation. DHS argued that the employee could effectively participate in meetings by listening and requesting copies of the materials after, as she did for off-site meetings for which she had not requested this accommodation. But, as she pointed out, her willingness to get by with these inferior alternatives off-site, when it would be more difficult for DHS to provide the requested materials, did not mean that they effectively accommodated her. Also rejected was DHS’s assertion that the other accommodations it provided rendered the requested materials unnecessary as she could not use a handheld magnifying glass to better see a PowerPoint presentation at a group meeting and her workstation magnification equipment could only help her view meeting materials if she had them in advance, as she requested.

Interactive process. The court below also erred by concluding that DHS was not liable because its failure to provide the requested materials was caused by the employee’s failure to engage in the interactive process. Although the district court relied on the Fifth Circuit’s decision in Loulseged v Akzo Nobel Inc., in which an employee, after learning that a prior accommodation would no longer be available, “did not respond in any way to his announcement, and did not raise the issue again,” the employee here offered evidence that she repeatedly requested the specific accommodation, was assured it would be provided, and then did not receive it on multiple occasions. Thus, a reasonable jury could conclude that any “breakdown” of the interactive process was not caused by her.

Retaliation. As to the employee’s retaliation claim, while the district court found the employee did not rebut the allegations of legitimate performance issues described in the performance review, this characterization failed to draw all reasonable factual inferences in her favor. Although she acknowledged to her supervisors she may have made some mistakes, this did not mean she conceded that the performance review correctly characterized her work. Rather, she proactively challenged the performance review’s descriptions of her work, repeatedly asked her supervisors to provide the documentation they relied on to criticize her work performance, and contemporaneously expressed in writing her skepticism that the negative assessments were truly based on any deficits in her work.

And while her primary evidence rebutting her alleged poor performance was her own assertions that the descriptions in the performance review were incorrect, DHS similarly offered only the performance review itself and deposition testimony from the supervisor who prepared it stating that it was accurate. Not only did DHS never provide the supporting documentation the employee repeatedly requested, it was not included in the summary judgment or appellate record. Further, the employee offered evidence challenging the supervisor’s credibility and indicating his potential hostility towards her based on her disability and accommodation requests. Thus, the district court erred in granting summary on this claim as well.