An emerging issue is whether when it comes to accommodating a person with a disability in an employment situation, are you accommodating the disability or are you accommodating the essential functions of the job. The easy scenario where that matters is when dealing with an employee with a service dog. Recently, Hobby Lobby was sued by the EEOC for denial of letting an employee use a service dog, here. However, there are other situations where the distinction between accommodating the essential functions of the job v. accommodating a person’s disability can matter a great deal. Our case of the day, Wilson v. Sec. of Veterans Affairs, an unpublished decision from the 11th Circuit decided June 3, 2022, is such a case. As usual the blog entry is divided into categories and they are: facts; court’s reasoning reversing summary judgment on the failure to accommodate claim; court’s reasoning affirming summary judgment on the retaliation claim; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.
Facts (taken directly from the opinion with very very minor changes for readability and flow).
Wilson, a veteran, suffers from degenerative disc disease and partial paralysis in both feet. In February 2009, Wilson started as a probationary Veteran Claims Examiner (VCE) for the Atlanta VA Regional Office. At the time, the Atlanta VA Regional Office only permitted permanent employees to use the on-site parking deck. Probationary VCEs could park at an off-site parking area roughly one mile from the office, from which they could either take a shuttle or walk to work. The VA shuttle ran for one hour in the morning and one hour in the evening. It ran sporadically at best and could only hold up to 25 individuals at a time—even then, there were only 15 seats. And because the shuttle lacked handlebars, standing passengers were forced to either be “pressed against an individual” or “use [their] body as a stance” to avoid falling over. Roughly 80 probationary VCEs commuted per day. Because of the shuttle’s shortcomings, Wilson effectively faced the option of either walking to work—which “put enormous pressure on her nerves” and caused her legs and feet to swell—or parking in unassigned handicapped spaces in the on-site parking deck.1 Wilson made the latter choice, leading to numerous parking tickets and counseling memos about her unauthorized parking.
As an employee with a disability, Wilson was told to bring any requests she may have for workplace accommodations to Celesta Chapin, her Vocational Rehabilitation Counselor with the VA’s Rehabilitation and Employment Division. Between March and July 2009, Wilson communicated her needs for a parking accommodation on six occasions to VA personnel—in all instances, Wilson stated that the VA refused to accommodate her requests in violation of the Rehabilitation Act. Wilson identified six distinct failures by the VA to accommodate or respond to her requests for an accommodation, occurring on the following dates in 2009: (1) March 31, (2) April 13, (3) April 17,2 (4) May 12, (5) July 7, and (6) July 8 and thereafter. The record evidence shows the following regarding these events.
With respect to the first failure, Wilson emailed her vocational rehabilitation counselor with the VA’s rehabilitation and employment division that the parking situation at the VA aggravated her disability and that she needed a parking accommodation. The rehabilitation counselor told Wilson that she would make a workplace accommodation request to human resources on her behalf, but Wilson never received follow-up from that meeting.
With respect to the second failure, Wilson stated that she met with Eboni White, her direct supervisor, after receiving a counseling memo for unauthorized parking in the on-site parking deck. During the meeting, Wilson explained that her disability forced her to park on-site and that she was working with Chapin to obtain permission to park in the onsite parking deck, for which she needed White’s assistance. White then said that she would communicate with Chapin. However, White did not relay Wilson’s request to Chapin or anyone in HR, nor did White follow up with Wilson regarding her request.
With respect to the third failure, Wilson stated that she emailed Praileau Young, an HR assistant, to ask where she could find the paperwork necessary to submit a parking accommodation request. Young responded that she had forwarded Wilson’s email to the “appropriate person,” but Wilson never received the requested information. On the same day, Wilson emailed Chapin again to confirm the status of her request. Chapin responded that she thought Wilson dropped the matter, but then requested from Wilson the name of her supervisor so that Chapin could request an assessment. Wilson responded and asked Chapin to submit the request on her behalf.
With respect to the fourth failure, in the same affidavit, concerning the fourth instance, Wilson stated that she met again with Chapin on May 12, 2009. At this meeting, Chapin reminded her to discuss her request with her supervisor. Wilson testified that she believed management was ignoring her since she had already spoken with White to no avail.
With respect to the fifth failure, on July 1, 2009, union representative Rebecca Manning gave her own parking badge to Wilson with permission to use it to park at the on-site parking deck. Because the badge did not work, Wilson asked an HR Liaison, Vivian DeLoach, for help. On July 7, 2009, DeLoach informed Wilson that she was not authorized to park there. Making this the fifth occasion, Wilson testified that she believed then that her request had been denied after all.
With respect to the last failure, Wilson testified that she emailed DeLoach on July 8, 2009, to request “the appropriate paperwork to file for reasonable parking accommodations due to my service-connected disability,” which she identified as “degenerative disc disease, with [herniated] discs and partial paralysis in both of [her] feet.” Wilson stated that she would be willing to provide medical documentation and facilitate contact with her doctor if necessary. On July 16, 2009, Unit Chief John Clayton Smith—who replaced White as Wilson’s direct supervisor—followed-up to verbally inform Wilson that he consulted with HR and that they “d[id] not see a connection [between parking privileges] and the essential function of you performing your job.” (Emphasis mine). Wilson interpreted this as the sixth instance of the VA’s failure to accommodate. Wilson then emailed DeLoach for written confirmation of Smith’s “denial” of her request for accommodations. Smith followed up with Wilson via email and reiterated that neither he nor HR saw the need for an accommodation but did not deny the request outright. DeLoach responded that although she was not the approving official for accommodation requests, she would assist Smith in helping Wilson understand how to properly submit a request.
On July 22, 2009, Wilson filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging discrimination by the VA. Within hours of filing the complaint, Wilson received a letter from Smith titled “Certification of Need for a Reasonable Accommodation.” Smith therein acknowledged Wilson’s accommodation request and requested, inter alia, medical documentation to evaluate her request. The letter also reminded Wilson yet again that “parking is not a condition of employment, nor related to the essential functions of your position.” This was the same language that Smith used in previously denying her request. (Emphasis mine). Wilson testified that she never provided the documentation because she understood the letter to be a preemptive denial. Wilson did not receive any follow-up.
Wilson testified that she soon thereafter suffered harassment. This harassment consisted, in part, of what she considered a pretextual disciplinary reprimand for leaving overtime work 45 minutes early because she felt ill. Wilson also applied for a Rating Veteran’s Service Representative position (RVSR) around this time but was not selected despite her allegation that she was more qualified than the selected applicant. On September 3, 2009, Wilson withdrew her EEOC complaint on advisement from her EEOC counselor. Her EEOC counselor discussed the matter with DeLoach, who responded, “if [parking] was going to be a problem [Wilson] might want to reevaluate her decision to work there.” Wilson stated that she continued to park in on-site handicapped spaces and amassed several parking tickets and letters of counseling because she believed that the VA unlawfully denied her accommodations request. Wilson also received a negative performance appraisal during this time, to which she filed a union grievance. Shortly thereafter, Jeannie Daniel, the VA Regional Assistant Education Officer, recommended to the VA regional Director Alfred Bocchicchio that Wilson be terminated for poor performance. The VA terminated Wilson on December 18, 2009, with a letter citing both her parking violations and poor performance as justification. Wilson applied again for the RVSR position in 2011, and was again not selected, despite her allegation that here, too, she was the most qualified candidate. Wilson stated that she believed she was not selected on either occasion because the decisionmakers knew of her disability and her EEOC complaint.
Wilson brought suit alleging both discrimination against terror and the terms and conditions of her employment and retaliation. The District Court granted summary judgment in favor of the Veterans Affairs administration and Wilson appealed.
Court’s Reasoning Reversing Summary Judgment on the Failure to Accommodate Claim
- An employer’s obligation to provide a reasonable accommodation is triggered when the employee makes a specific demand for a reasonable accommodation.
- After the employer is placed on notice of the employee’s disability and request for an accommodation, the employer has to make a reasonable effort to determine the appropriate accommodation.
- Determining an appropriate reasonable accommodation may mean going through the interactive process.
- It is when the employer fails to provide the accommodation after it was demanded that the plaintiff can sustain a discrimination claim under the Rehabilitation Act.
- Wilson made repeated requests (see §I of this blog entry), for the specific accommodation to park in the VA parking deck. She repeatedly explained her reasoning and her request to many different people at the VA who either discouraged, ignored, or provided inadequate follow-up to those requests.
- A reasonable juror could find that Wilson’s first two communications with the VA were requests for an accommodation.
- It is sufficient that Wilson requested to park on site and justified her request by informing the VA about her mobility limitations and her belief that an accommodation would resolve the issue.
- It took the VA four months to even attempt to initiate the interactive process, despite being repeatedly placed on notice of Wilson’s disability and her request. As such, a jury could find that the VA’s four month long inaction in addressing Wilson’s request constitutes a failure to accommodate in violation of its obligations under the Rehabilitation Act regardless of Wilson’s subsequent failure to provide the documentation.
Court’s Reasoning Affirming Summary Judgment on the Retaliation Claim
- Wilson’s argument that her parking requests were independent protected activity is new on appeal. Since a court will generally not consider an issue raised for the first time on appeal, Wilson waived the argument.
- Wilson does not demonstrate that the VA’s other basis for termination, i.e. her subpar work performance, was pretextual. The VA produced evidence that the regional VA director considered Wilson’s failing to meet the minimum monthly expected and products and produce numerous errors in her work that had to be corrected by supervisors. She also requested overtime pay for hours that she did not work and received a counseling memo for doing so. Wilson did not dispute that her record was unsatisfactory and did not produce evidence that would lead a reasonable jury to find pretext. She therefore cannot show that the protected activity was causally connected to the adverse employment action and the rich allegation claim fails.
- The VA’s focus on the essential functions of the job rather than on accommodating her disability got the VA in a bunch of trouble here. As a matter of preventive law, per Felix-which we discussed here-, it is much better to focus on accommodating the disability rather than focusing on accommodating the essential functions of a particular job. Taking this approach will certainly prevent litigation down the road and make the person with the disability feel valued so that he/she/they will want to succeed.
- You want to make sure at trial that all arguments are preserved for appeal.
- Magic words, as we have discussed numerous times in our blog, such as here, are not required for activating the interactive process.
- Always utilize the interactive process whenever a request for a reasonable accommodation/modification is made. The interactive process is not optional in my opinion despite the court’s use of the word, “may.”
- Don’t forget about the do’s and don’ts of the interactive process, which we discussed here.
- An unreasonable delay in granting a reasonable accommodation, as we discussed here, is actionable.
- Since this involved a federal employee, it was §501 of the Rehabilitation Act that was involved and not the ADA. However, by statute §501 of the Rehabilitation Act, 29 U.S.C. §791, here, tracks title I of the ADA.
- The trend is very much that a failure to accommodate claim as a separate cause of action.
- Case illustrates how an underlying disability discrimination claim can go forward even where a retaliation claim does not. I have also seen cases where it would to allegation act claim goes forward but the underlying disability discrimination claim does not.
- Negative reports on an employee can of course be done at any time. However where an employee has initiated a request for reasonable accommodation, you want to make sure such a report is part of your regular processes and not an attempt to justify disciplinary proceedings after a reasonable accommodation request has been made. Such an action could also rate the question over whether the performance issued would have been cured if reasonable accommodations have been granted in the first place.