By Robert B. Fitzpatrick
In Ward v. McDonald, the D.C. Circuit addressed the case of an individual who had requested that she be permitted to work from home on a full-time basis as a reasonable accommodation for her medical condition. No. 12-5374, 2014 U.S. App. LEXIS 15402 at *1-*2 (D.C. Cir. Aug. 12, 2014). In Ward plaintiff had been diagnosed with a medical condition which rendered her unable to sit for long periods of time. Id. In addition, plaintiff required "routine daily care at home". Id. at *5. These daily treatments required 1 to 3 hours, and sometimes required that plaintiff disrobe. Id. *4 to *5. Plaintiffs job was "the quintessential desk job", and required little or no physical exertion – indeed, the by far the bulk of plaintiff's work was performed sitting at her desk. Id. at *4, *8.
Although plaintiff "struggled at times" to perform her job, she nevertheless was rated "[f]ully [s]uccessful or better" on her performance reviews. Id. at *5. Nevertheless, the long periods of sitting exacerbated plaintiff's condition, and she applied for a reasonable accommodation to be permitted to work at home. Id. at *5 to *6. There followed a series of conversations between plaintiff and her supervisors regarding her requested accommodation, during which time period plaintiff provided additional documentation regarding her medical condition, the basis for her requested accommodation, and how it would enable her to perform her job duties. Id. at *6 to *9. During these conversations, plaintiff's employer indicated that it could allow her to work from home on a part-time schedule. Plaintiff's supervisors indicated that, as she would need to sit for long periods of time regardless of her work location, and due to the substantial time needed for her treatments, they were concerned about her ability to maintain a full-time work schedule. Id. at *7. In that communication, defendant requested additional information regarding plaintiff's ability to work a full time schedule. Id. Plaintiff failed to respond, instead tendering her resignation. Id. at *9.
Although plaintiff tendered her resignation, she indicated that consideration of her resignation be delayed. Id. In response to plaintiff's resignation, defendant indicated that it had not denied any requested accommodation. Id.at *9 to *10. Defendant also indicated that it would consider allowing plaintiff to "try work-from-home on a full-time basis." Id. at *10. Plaintiff never responded to that communication. The district court granted summary judgment for defendant. In so doing, the district court found that the defendant had participated in the interactive process and had offered plaintiff the very accommodation which she sought while, on the other hand, plaintiff had failed to participate in the interactive process and had not demonstrated that she could perform the essential functions of her job.
On appeal, the D.C. Circuit issued a split decision. The dispute centered primarily around the employer's requests for additional information regarding plaintiff's medical condition. The majority found that plaintiff's failure to respond to the employer's request for medical information constituted a failure to participate in the interactive process. Affirming the district court's grant of summary judgment, the majority explained that "[plaintiff] did not provide the requested information. Instead, she resigned. No reasonable juror could have found that the [defendant] denied [plaintiff's] request for an accommodation, then, because [plaintiff] abandoned the interactive process before the [defendant] had the information it needed to determine the appropriate accommodation." Id. at *22.
By contrast, the dissent emphasized that the employer did not need any of the information which it requested to reasonably accommodate plaintiff, nor did the information requested relate to any essential function of plaintiff's job.Id. at *30. Indeed, the employer had admitted that this was the case. In the dissent's view the employer had discriminated against plaintiff by "needlessly prolonging" the process of applying for defendant's flexi-place program, and emphasized that "[plaintiff's] increasing inability to properly treat her [condition] in the office was literally endangering her life, making the delay caused by her supervisors' unjustified factual detours acutely harmful." Id.
The plaintiff in Solomon v. Vilsack had been denied her requested accommodation of a flexible work schedule (a "maxiflex" schedule) despite apparently similarly situated employees being permitted to make use of such a schedule. No. 12-5123, 2014 U.S. App. LEXIS 15671 (D.C. Cir. 2014). The court's decision focuses primarily on whether such flexible work schedules can be, as a matter of law, "reasonable" accommodations under the Rehabilitation Act. Id. at *16 to *17. The Court found that such schedules can, as a matter of law, be reasonable accommodations. Id.
As an initial matter, it is worth noting that plaintiff's medical expert provided evidence that "to a reasonable degree of medical certainty [defendant's actions] substantially worsened [plaintiff's] condition" to the point that she was eventually rendered unable to work. Id. at *10. Although plaintiff took a disability-related retirement, the Court held that she was not precluded from pursuing a disability discrimination claim because her retirement application "never stated that she would have been unable to work if she had been afforded the accommodations she sought". Id. at *13. However, the Court appears to have limited her claim to "spring and summer of 2004" – in other words, prior to the worsening of her condition due to the employer's actions. Id. at *13.
As noted above, the Court seems to have cut off liability at the time after which plaintiff's conditions worsened to the point that she could no longer work. Id. at *13, *38. This is true even though plaintiff's medical expert proffered evidence that plaintiff's worsened condition was due, at least in part, to the employer's actions. Id. While the Court devotes little time or analysis to this issue, a paragraph at the end is telling:
Finally, Solomon points to her requests in late May to telecommute or to work part-time. But for that period of time, correspondence from Solomon herself and Dr. Cozzens led Solomon's supervisors to believe that her condition had deteriorated to the point that she was medically unable to work in any capacity. Even if the supervisors incorrectly assessed Solomon's condition, and the Department was thus obligated to provide reasonable accommodation, Solomon must still present evidence casting doubt on the sincerity of the Department's proffered non-retaliatory justification for its action.
Id. at *38 to *39.