Elisa J. Yochim v. Benjamin S. Carson, Sr. , 935 F.3d 586 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-3670
ELISA J. YOCHIM,
Plaintiff-Appellant,
v.
BENJAMIN S. CARSON, SR.,
Secretary, U.S. Department of Housing and Urban
Development,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:16-cv-4926 — Harry D. Leinenweber, Judge.
____________________
ARGUED JULY 9, 2019 — DECIDED AUGUST 15, 2019
____________________
Before KANNE, HAMILTON, and SCUDDER, Circuit Judges.
SCUDDER, Circuit Judge. Elisa Yochim worked in the legal
department of the United States Department of Housing and
Urban Development for 26 years. Throughout her tenure, she
took full advantage of HUD’s flexible and progressive policy
permitting employees to work from home several days per
week. After undergoing hand surgery, Yochim requested time
2 No. 18-3670
off and permission to work from home. HUD agreed and al-
lowed her time to recover and to telework several days a week
for many months as she received physical therapy. HUD later
restructured its law department and this development had
the effect of requiring employees like Yochim to spend more
time in the office. In time this restructuring, combined with
Yochim’s performance deficiencies, led HUD to revoke her
telework privileges and offer alternative accommodations.
For her part, Yochim responded with this lawsuit, alleging vi-
olations of the Rehabilitation Act for failure to accommodate
her ongoing rehabilitation needs. The district court entered
summary judgment for HUD, and we affirm. No rational jury
could conclude that the Department failed to offer reasonable
accommodations.
I
In reviewing the district court’s award of summary judg-
ment to HUD, we construe the facts in the light most favora-
ble to Yochim as the nonmovant, resolving evidentiary con-
flicts and competing inferences in her favor. See Brown v. Mil-
waukee Bd. of Sch. Dirs., 855 F.3d 818, 820 (7th Cir. 2017).
Yochim worked as a HUD attorney for 26 years, serving in
the Chicago office for the last 15 years before her retirement
in May 2015. During her tenure, the Department maintained
a forward-leaning telework policy that allowed full-time em-
ployees to work from home up to three days a week at their
manager’s discretion.
Beginning in October 2012, HUD’s legal department un-
derwent a functional reorganization. Before this change, the
Department’s attorneys tended to specialize in particular ar-
eas. With the reorganization, however, HUD wanted its
No. 18-3670 3
attorneys to work more as generalists and to assist each other
through cross-training and collaboration—a change in ap-
proach less suited to telework. Yochim’s job description
changed to include “training, orientation, [and] working
groups” as well as “administrative responsibilities,” includ-
ing “space and file management,” as areas of focus. Around
this same time, Yochim applied for a supervisory position, but
the Department passed her up and instead awarded the role
to Lisa Danna-Brennan, who became Yochim’s supervisor.
This development was not one Yochim welcomed.
In November 2012, Yochim had surgery to treat carpal tun-
nel syndrome in her right hand. The surgery brought with it
a recovery and rehabilitation process, prompting Yochim to
submit several requests to HUD to accommodate her needs.
The HUD handbook outlines the Department’s process for ac-
commodating such requests. Employees can seek reasonable
accommodations through their immediate supervisor or the
Department’s Reasonable Accommodation Branch. The su-
pervisor and employee then engage in an interactive process
to identify an accommodation, and the Reasonable Accom-
modation Branch facilitates this communication. The Branch
determines an employee’s eligibility for a reasonable accom-
modation, while the supervisor shoulders responsibility for
deciding what accommodation is suitable.
Yochim submitted her first accommodation request in De-
cember 2012, asking her supervisor, Danna-Brennan, to per-
mit her to telework during the eight days in December on
which she had not already scheduled leave and all of January.
To support her request, Yochim submitted two work-status
forms from her surgeon. In the first form, the doctor identified
no work or functional limitations while adding that Yochim
4 No. 18-3670
“may work from home until the end of January.” The doctor’s
second form conveyed a work-related limitation, explaining
that Yochim had “diminished right-hand strength and should
not rely on gripping with that hand until February 1, 2013;
specifically, riding public transportation that requires holding
on with her right hand may be a safe[t]y concern.”
Danna-Brennan approved Yochim’s request to work from
home the remainder of December. As for Yochim’s request to
telework throughout January, Danna-Brennan offered a com-
pressed schedule consisting of four ten-hour days—two in the
office and two at home. Danna-Brennan also afforded Yochim
the flexibility to “set her schedule to reflect her need to avoid
rush hour” if she maintained a set daily schedule. Apparently
unhappy that her compressed schedule still required her to
come to the office two days a week, Yochim later complained
to Danna-Brennan that she had to use sick leave to stay home
these extra two days per week. At no point, however, did
Yochim explain why HUD’s accommodation would interfere
with ongoing and medically necessary rehabilitation or phys-
ical therapy. Nor did Yochim suggest other accommodation
options.
In March 2013, Yochim submitted a second request to
work full-time from home until June 30 to accommodate her
ongoing recovery from surgery. She supported this request
with a letter from her primary-care physician, Dr. Lexy
Wistenberg, who reported that she continued to experience
pain and swelling in her right hand. Dr. Wistenberg also ad-
vised that Yochim may need to avoid commuting during rush
hour to avoid getting stuck standing in a train aisle and need-
ing to grasp a handrail. Otherwise, however, Dr. Wistenberg
No. 18-3670 5
cleared Yochim to work as she continued her physical ther-
apy.
In April 2013, while the second accommodation request
was pending, Danna-Brennan placed Yochim on a sick-leave
restriction. This restriction required Yochim to provide a doc-
tor’s note with the date and time of an appointment or any
anticipated medical care and to schedule medical appoint-
ments at the beginning or end of the day to have the least im-
pact on the workday. This new restriction resulted from
Danna-Brennan’s determination that Yochim had a history of
excessive absences from work—an audit of Yochim’s time re-
vealed that she had taken leave on 339 days out of a possible
1,010 work days between January 1, 2009 and May 1, 2013—
and that she often took leave without any prior approval.
A month later, in May 2013, HUD responded to Yochim’s
second accommodation request. The Department offered
voice-recognition software to reduce Yochim’s need to type
and the option to telework three days per week. The accom-
modation called for Yochim to work in the office two days per
week while allowing her to work from home for two hours in
the morning on these days to avoid commuting during rush
hour. HUD also permitted her to leave work 15 minutes early
to secure seating on the train. Yochim agreed to this revised
schedule and concedes that it reflected an effective accommo-
dation. This accommodation lasted approximately one
month, expiring in June 2013.
A year later, in June 2014, Danna-Brennan revoked
Yochim’s telework privileges and issued a written reprimand
for performance deficiencies. Danna-Brennan decided the
reprimand was warranted based on the results of an audit of
the legal team’s docket. The audit revealed that Yochim had
6 No. 18-3670
left particular assignments incomplete for up to two years
without ever reporting the delays, despite HUD’s policy re-
quiring her to do so.
In August 2014, Yochim submitted a third accommodation
request seeking to telework three days per week for six
months plus two additional days per week “as needed due to
pain, medical appointments, and recovery.” She supported
this request with another letter from Dr. Wistenberg who re-
ported that Yochim had inflammatory osteoarthritis, causing
“significant pain and stiffness” and swollen joints throughout
her body. Dr. Wistenberg recommended that Yochim work
from home at least three days per week to minimize the risks
of further discomfort from commuting and to accommodate
visits to physical therapists near her suburban home. Yochim
never inquired about attending physical therapy in down-
town Chicago near HUD’s office.
Danna-Brennan responded by offering a list of alternative
accommodations including an ergonomic assessment, addi-
tional paralegal assistance to reduce Yochim’s typing, a com-
pressed weekly schedule, and generous leave approval. In do-
ing so, Danna-Brennan explained that Yochim working from
home was no longer an acceptable accommodation “because
[her] telework was suspended as a result of performance de-
ficiencies while teleworking 3 days a week.” Yochim ex-
pressed her disagreement with the proposed arrangement by
filing a written statement with a specialist in HUD’s Reason-
able Accommodation Branch. The specialist then informed
Yochim of the procedures to seek reconsideration, but she
never did so.
During the same period, after the restructuring of HUD’s
legal department, Yochim lodged two complaints with the
No. 18-3670 7
Equal Employment Opportunity Commission. She alleged
that HUD discriminated and retaliated against her by failing
to promote her and, separately, to accommodate her need for
ongoing rehabilitation.
Yochim retired from HUD once she became eligible to do
so in May 2015. She then filed this suit, advancing claims un-
der the Rehabilitation Act and alleging that HUD failed to ac-
commodate her requests to telework and to engage in the in-
teractive process promptly and in good faith. Yochim also al-
leged that HUD retaliated against her for filing her EEO com-
plaints and subjected her to a hostile work environment by
restricting her telework and sick-leave privileges.
The district court granted HUD’s motion for summary
judgment, concluding that although Yochim had established
that she was a qualified person with a disability, no reasona-
ble jury could find that the Department had failed to offer rea-
sonable accommodations. The district court found that
HUD’s alternative accommodations were reasonable given
the need that arose for Yochim to work in the office several
days a week as a result of the Department’s restructuring of
its legal department. The district court also determined that
Yochim fell short in her efforts to show that HUD retaliated
against her or subjected her to a hostile work environment.
II
On appeal Yochim argues that she brought forth enough
evidence to get to a jury on her allegations that HUD did not
reasonably accommodate her because it offered only ineffec-
tive accommodations and failed to engage in the interactive
process in good faith. We review a district court’s entry of
8 No. 18-3670
summary judgment de novo and must affirm if no reasonable
juror could find in favor of Yochim. See Brown, 855 F.3d at 820.
Yochim brought her claims under the Rehabilitation Act.
This enactment mandates that no qualifying individual with
a disability “shall, solely by reason of her or his disability”
experience discrimination by an executive agency. 29 U.S.C.
§ 794(a). To prevail on her claim of discrimination, Yochim
must show that (1) she was a qualified individual with a dis-
ability, (2) HUD was aware of her disability, and (3) the De-
partment failed to reasonably accommodate her disability.
See Sansone v. Brennan, 917 F.3d 975, 979 (7th Cir. 2019);
see also Ozlowski v. Henderson, 237 F.3d 837, 839 (7th Cir. 2001)
(explaining that the Rehabilitation Act adopted the standard
for determining whether a violation has occurred from the
Americans with Disabilities Act). The accommodation obliga-
tion embodied in the third prong brings with it a requirement
that both the employer and the employee engage in a flexible
“interactive process” and make a “good faith effort” to deter-
mine what accommodations are necessary. See Lawler v. Peoria
Sch. Dist. No. 150, 837 F.3d 779, 786 (7th Cir. 2016).
A
We agree with the district court that no rational jury could
find that HUD failed to offer Yochim reasonable accommoda-
tions or engage in the interactive process in good faith. The
Department either granted each of Yochim’s requests or re-
sponded with a list of alternative options that reasonably ad-
dressed her needs. Nor does the record support Yochim’s con-
tentions of bad faith. This is not a case where an employee’s
requests for accommodations fell on deaf ears. To the con-
trary, the parties engaged in a meaningful back-and-forth
with Yochim requesting to work from home and HUD
No. 18-3670 9
presenting her with appropriate alternative accommodations.
The communication process did not break down simply be-
cause Yochim did not receive the answers she had hoped for.
Start with the period following Yochim’s surgery. HUD
granted her request to telework for the eight remaining days
in December 2012 that she had not already requested off. The
Department also permitted her to adjust her work hours (to
avoid having to stand on a train) and to telework two days a
week for the entirety of January. While this fell short of
Yochim’s preference to work from home all of January, an em-
ployer must provide a “reasonable accommodation, not the
accommodation [the employee] would prefer.” Hoppe v. Lewis
Univ., 692 F.3d 833, 840 (7th Cir. 2012). Given the Depart-
ment’s restructuring and Yochim’s updated job description
focusing on cross-training, teamwork, and collaboration,
which necessarily required her presence in the office, HUD’s
accommodations were entirely reasonable. And recall that the
only medical basis for Yochim’s request to work from home
in January 2013 was her surgeon’s concerns about Yochim’s
commute on crowded trains and her need to attend therapy
appointments. HUD’s alternative options reasonably ad-
dressed these concerns by adjusting her work hours to avoid
rush hour and limiting—but not eliminating—her time in the
office.
Now consider HUD’s response to Yochim’s August 2014
request to work from home three to five days per week for six
months. HUD offered her a four-day work week, generous
leave approval (to ease commuting and attending physical
therapy), and other accommodations. The Department did so
attentive to the needs of its legal department in Chicago and
mindful that Yochim, although medically cleared for work,
10 No. 18-3670
had ongoing needs for physical therapy. So, too, did HUD de-
termine that further telework was not warranted given
Yochim’s performance deficiencies. No reasonable jury could
find this response unreasonable. Yochim has never explained
why HUD’s approval of regular sick leave to attend physical
therapy appointments was inadequate. And not once has
Yochim identified any reason why she could not attend ther-
apy appointments closer to her Chicago office to minimize her
commute or why changes to her work hours would not re-
solve her concern about crowded trains. Put most simply,
Yochim failed to connect the accommodation she persisted
was necessary with what the record showed were her ongoing
medical needs. In the end, it was Yochim’s own insistence on
teleworking three or more days a week and her refusal to re-
main open to anything less that doomed the interactive pro-
cess.
Yochim’s claim that HUD failed to offer her reasonable ac-
commodations fails for another reason. She cannot point to
evidence that the two accommodations she sought but did not
receive—to telework full-time for one month and later for
three to five days per week for six months—were “reasonable
on [their] face.” See Taylor-Novotny v. Health All. Med. Plans,
Inc., 772 F.3d 478, 493 (7th Cir. 2014) (quoting Majors v. Gen.
Elec. Co., 714 F.3d 527, 535 (7th Cir. 2013)) (stating that a plain-
tiff seeking to establish claim for failure to accommodate un-
der the ADA must “make an initial showing that the accom-
modation she sought was ‘reasonable on its face’”). Yochim
insists that her requests to telework were appropriate because
she had worked from home full time for six weeks in 2004,
HUD’s telework policy allows employees to work from home
up to three days a week, and another employee was allowed
to work from home for an unknown period of time.
No. 18-3670 11
Yochim’s position falls short. An accommodation to tele-
work requires a context-specific inquiry, and a “general con-
sensus [exists] among courts” that jobs “often require face-to-
face collaboration.” See Bilinksy v. Am. Airlines, Inc., 928 F.3d
565, 573 (7th Cir. 2019). Yochim has failed to counter HUD’s
evidence that she held just such a job. The 2012 restructuring
of the legal department, which changed Yochim’s responsibil-
ities and job description, required attorneys to work in teams,
collaborate more, and cross-train each other. She points to the
Department’s 2010 telework policy that allows telework up to
three days a week, but this policy predates the restructuring.
Even more to the point, the policy, by its terms, is subject to
management’s discretion—it does not confer a legally pro-
tected entitlement upon an employee.
B
Yochim next argues that HUD’s accommodations were in-
effective. She says, for example, that many of HUD’s options
(like the compressed work week and the flexibility to tele-
work a few days a week) already were widely available to
HUD employees without a reasonable accommodation and
thus were not “alternative accommodations.” But this posi-
tion misses the mark. “Reasonable accommodation” under
the relevant statutes includes “modified work schedules”
such as the compressed schedules and telework that HUD of-
fered. See Severson v. Heartland Woodcraft, Inc., 872 F.3d 476,
481 (7th Cir. 2017) (citing 42 U.S.C. § 12111(9)(B)). It makes no
difference that modified scheduling options might have been
available to other HUD employees who obtained permission
to telework from their manager.
By way of another example, Yochim contends that HUD’s
options were ineffective because requiring her to work in the
12 No. 18-3670
office meant that she had to commute on the train and grasp
the handrails with her injured right hand. But the medical rec-
ords supporting Yochim’s accommodation requests demon-
strated that the only limitation related to her commute was
the need to avoid crowded trains that could cause her to fall
or force her to grip the railings. HUD’s proposed accommo-
dations addressed these concerns by offering her an adjusted
schedule to avoid rush hour.
Yochim has offered a few other views as to why HUD’s
accommodations were ineffective. She claims that the long
ten-hour days of her compressed schedule (and HUD’s
requirement that she maintain a set daily schedule) limited
her flexibility to make her therapy appointments before or
after work, necessitating that she take sick leave. And she says
that doing so was especially difficult with the sick-leave
restriction imposed by her supervisor. But one purpose of
paid sick leave is to allow employees to attend such
appointments, and Yochim does not present any evidence
that the leave restriction—which merely required her to
submit a medical note detailing the time and date of an
appointment—interfered with her physical-therapy sessions.
None of Yochim’s remaining arguments persuade us that a
reasonable jury could find that the Department’s
accommodations were ineffective.
C
Finally, Yochim contends that HUD’s refusal to allow her
to work from home and the imposition of her sick-leave re-
striction created a “retaliatory hostile work environment” that
led to her premature retirement. This court has not deter-
mined whether the ADA (and by extension, the Rehabilitation
Act) encompasses claims of a hostile work environment.
No. 18-3670 13
See Conley v. Vill. of Bedford Park, 215 F.3d 703, 712–13 (7th Cir.
2000). We need not resolve the question here. Even assuming
Yochim could bring a hostile-work-environment claim, she
must at a minimum demonstrate that the work environment
was both objectively and subjectively offensive because of
“severe or pervasive” harassment. Boss v. Castro, 816 F.3d 910,
920 (7th Cir. 2016).
At summary judgment, Yochim did not offer evidence
showing that her leave and telework restrictions—actions that
are permissible for an employer to take—were so severe or
pervasive as to “alter the conditions” of employment and
“create an abusive working environment.” See id.; see also
Herron v. DaimlerChrysler Corp., 388 F.3d 293, 303 (7th Cir.
2004) (concluding that empr’s disciplinary action for perfor-
mance issues was “normal workplace friction”). And it is this
evidentiary shortcoming that defeats this dimension of her
claims on summary judgment.
For all of these reasons, we AFFIRM.