Ella Ward v. Robert A. McDonald , 762 F.3d 24 ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 17, 2014 Decided August 12, 2014
No. 12-5374
ELLA WARD,
APPELLANT
v.
ROBERT MCDONALD, SECRETARY, U.S. DEPARTMENT OF
VETERANS AFFAIRS,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-01414)
Karen A. Khan argued the cause for the appellant.
Alexander D. Shoaibi, Assistant United States Attorney,
argued the cause for the appellee. Ronald C. Machen Jr.,
United States Attorney, and R. Craig Lawrence, Assistant
United States Attorney, were on brief.
Before: HENDERSON and MILLETT, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
Dissenting opinion filed by Circuit Judge MILLETT.
2
KAREN LECRAFT HENDERSON, Circuit Judge: Ella Ward
was an attorney advisor at the Board of Veterans Appeals
(BVA), a part of the United States Department of Veterans
Affairs (VA). After developing a medical condition that
required lengthy daily treatments and prevented her from
sitting at a desk for long periods, she sought an accommodation
allowing her to work full-time from home. Ward supported
her request with two physicians’ letters containing terse
descriptions of her condition. When her supervisors asked for
additional information to use in determining a reasonable
accommodation, Ward resigned. She then sued Eric Shinseki
(since replaced by Robert McDonald), in his capacity as
Secretary of the VA, claiming the BVA had violated her rights
under the Rehabilitation Act of 1973 (Act), 29 U.S.C. §§ 701 et
seq., by failing to accommodate her disability. Ward also
claims she was constructively discharged because the failure to
accommodate her disability left her with no choice but to
resign. The district court granted summary judgment to the
VA Secretary on both claims. We affirm.
I. Background
A. The Rehabilitation Act
“The Rehabilitation Act of 1973 governs employee claims
of handicap discrimination against the Federal Government. Its
basic tenet is that the Government must take reasonable
affirmative steps to accommodate the handicapped, except
where undue hardship would result.” Barth v. Gelb, 2 F.3d
1180, 1183 (D.C. Cir. 1993). The Act provides that “[n]o
otherwise qualified individual with a disability” shall be
discriminated against by a federal agency “solely by reason of
her or his disability.” 29 U.S.C. § 794(a).
3
The Act expressly incorporates the standards applied
under the Americans with Disabilities Act (ADA). Id.
§ 794(d); see also 29 C.F.R. § 1614.203(b). The ADA in turn
bars discrimination against a “qualified individual on the basis
of disability,” 42 U.S.C. § 12112(a), and defines “qualified
individual” as “an individual who, with or without reasonable
accommodation, can perform the essential functions of the
employment position that such individual holds or desires,” id.
§ 12111(8); see Mogenhan v. Napolitano, 613 F.3d 1162, 1165
(D.C. Cir. 2010); Woodruff v. Peters, 482 F.3d 521, 527 (D.C.
Cir. 2007). “[T]hat is, an individual with handicaps is
‘qualified’ if she can perform the essential functions of her
position with reasonable accommodation. If she can perform
these functions without reasonable accommodation, so much
the better—she is, of course, still qualified.” Carr v. Reno, 23
F.3d 525, 529 (D.C. Cir. 1994). A “reasonable
accommodation” may include “job restructuring, part-time or
modified work schedules . . . and other similar
accommodations for individuals with disabilities.” 42 U.S.C.
§ 12111(9)(B); accord 29 C.F.R. § 1630.2(o)(2)(ii).
B. Factual Background1
When a veteran’s claim for benefits is denied by a local or
regional office of the VA, the veteran may appeal to the BVA.
The judges who decide such appeals are assisted by attorney
advisors who read the case files, review the evidence and
prepare draft opinions. Beginning in 2001, Ward served as
one such attorney advisor. Hers was the quintessential desk
job—reading, writing, typing—with the only physical duty
1
Because we are reviewing the district court’s grant of
summary judgment to the VA Secretary, we view the evidence in the
light most favorable to Ward. Mogenhan, 613 F.3d at 1165;
Langon v. Dep’t of Health & Human Servs., 959 F.2d 1053, 1058
(D.C. Cir. 1992).
4
being that she had to carry sometimes unwieldy case files from
the judges’ offices to her desk. She typically worked eight- to
ten-hour days and, like her colleagues, was expected to
produce three “credits” per week—each credit corresponding
to the preparation of roughly one case.
In 2005, Ward began to suffer from chronic severe
lymphedema of the lower right extremity, which causes her
right foot and leg to swell with retained fluid. The condition
substantially limits Ward’s ability to go up and down stairs,
carry moderately heavy case files and travel to and from work.
It is exacerbated by long periods of sitting at a desk. To
manage the condition, Ward must frequently drain excess
fluid, elevate her leg, bandage it and/or place it in a
compression machine. The treatments take one to three hours
at a time and some require her to disrobe.
In mid-2006, Ward converted to part-time status for a few
months so that she could receive treatments at the hospital.
She returned to full-time status in September 2006. She also
took some leave time pursuant to the Family Medical Leave
Act (FMLA). Ward testified that she struggled at times to
meet the three-credit per week expectation, see Joint Appendix
(JA) 97–98, but it is undisputed that her final performance
review, dated April 5, 2007, rated her “[f]ully [s]uccessful or
better,” JA 447.
Ward’s condition began to deteriorate and in early 2007
she first requested an accommodation. After speaking in
March 20072 with her then-supervisor Constance Tobias, in
April Ward presented her interim supervisor Mark Greenstreet
with a letter from Dr. David Rose, a cardiothoracic and
vascular surgeon. The letter was brief. It stated that Ward
2
Unless otherwise indicated, all events occurred in 2007.
5
“has been receiving physical therapy treatments for a chronic
medical condition of the right lower extremity that requires
routine daily care at home” and that “she is unable to apply the
treatment routinely at work, which exacerbates the condition.”
JA 205. Rose’s letter concluded that Ward “will benefit from
a schedule that allows her to work from home. The maximum
number of daily work hours will be determined as the condition
stabilizes.” JA 205.
On May 3, Ward met with Greenstreet, Jonathan Kramer
and another supervisor to discuss her request. They asked for
more details on Ward’s condition, which request Ward asked
that they put in writing. Greenstreet did so. In a letter
bearing the same date, he explained that he understood Ward to
be “requesting an arrangement to work at home” but that
“additional medical information is needed to process your
request. Specifically, your physician needs to provide more
details concerning the diagnosis and prognosis.” JA 243.
The letter set forth the information the BVA needed so that it
could evaluate Ward’s “ability to perform the duties of [her]
position” and determine “what specific accommodations
would be required.” JA 243.
In late May, Ward submitted another letter, this time from
Dr. Alice Fuisz, an internist. The letter contained the
information set forth above regarding Ward’s condition and
prescribed treatment. It explained that Ward “needs medical
accommodations to work at home” because sitting for long
periods exacerbates her condition and therefore Ward “should
sit for only short intervals of time as tolerated, and be able to
apply treatment routines whenever needed during the
work-day.” JA 195. Fuisz’s letter noted that the treatment
routines “can take from 1 to 3 hours at a time” and that Ward’s
“disability also affects travel to and from work, but she should
6
be able to commute to work once a week as required [to
retrieve new case files].” JA 195.
On May 25, Ward met with Steven Cohn, who had since
replaced Greenstreet as Ward’s supervisor. Cohn told Ward
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. On May 31, Cohn and Ward met again,
with Kramer also present this time. The parties’ accounts of
that meeting differ. Cohn and Kramer attested that they were
concerned Ward could not maintain a full-time schedule given
her condition and the length of daily treatments and therefore
asked for more information from her physician specifying that
she was able to work full-time. Ward attested that Cohn and
Kramer flatly denied her full-time work-from-home request
during the meeting, instead offering her a part-time
work-from-home accommodation. Ward asked that the
BVA’s decision on her accommodation request be put in
writing.
As requested, on June 5, Cohn sent a memo to Ward which
“serve[d] to follow-up on the May 31, 2007 meeting.” JA
246. The memo stated that “the [BVA] will strive to provide
you with a reasonable accommodation” but that, as discussed
in the meeting, “it is not evident to the [BVA], based on the
medical documentation you have provided, that the [BVA] can
reasonably accommodate your request for a flexiplace
[work-from-home] arrangement.” JA 246. The memo
outlined two questions left unanswered by Ward’s physicians’
letters. First, the memo asked whether Ward would be able to
carry case files to and from work once a week. Second, it
noted that Ward’s job requires sitting at a desk for prolonged
periods—a requirement which would be no different in a
work-from-home arrangement—and expressed concern
whether, factoring in time for treatment, Ward would be able to
7
log sufficient hours to meet a full-time schedule. JA 246–47.
Accordingly, the memo asked that Ward obtain a letter from
her physician addressing these two questions so that the BVA
could “process [Ward’s] request for a flexiplace arrangement.”
JA 247. The memo did not state any decision—one way or
the other—on Ward’s accommodation request.
Ward did not respond. Instead, on June 11, she submitted
a letter of resignation. On June 22, she asked that her
resignation not take effect—and that she remain on
leave-without-pay status under the FMLA—until the Office of
Personnel Management adjudicated her pending claim for
disability retirement benefits. Then, on July 30, Ward sent a
letter to the BVA’s human resources personnel asking that the
BVA “immediately terminate the deferred status of my
resignation and process my involuntary
resignation/constructive discharge immediately. . . . Because
of BVA’s illegal and discriminatory actions in denying a
reasonable accommodation for my chronic disability by
allowing me to work at home as many other attorneys with
disabilities do at the BVA, I was forced out of my job and had
no recourse but to resign.” JA 258.
In response, a BVA personnel officer sent Ward a letter
dated August 8. The letter disputed Ward’s assertions that her
accommodation request had been denied and that she had been
forced to resign. It changed the BVA’s tune on the need for
more information, however, stating: “[A]lthough you never
submitted any additional medical information as requested, the
[BVA] has nevertheless reconsidered your reasonable
accommodation request and is willing to consider allowing you
to try work-from-home on a full-time basis.” JA 261. The
letter asked that Ward respond within five days of August 8,
but Ward attested that she did not receive it until more than five
days later. She never responded.
8
C. District Court Proceedings
Ward obtained a notice of right to sue from the Equal
Employment Opportunity Commission (EEOC) and timely
filed suit in district court. Her complaint alleged two
violations of the Act: (1) the BVA failed to accommodate her
disability; and (2) in so doing, the BVA constructively
discharged her by deliberately creating intolerable working
conditions, thus leaving her no choice but to resign. After
discovery, the parties cross-moved for summary judgment.
The district court granted summary judgment to the VA
Secretary on both claims. Ward v. Shinseki, No. 10-cv-1414,
2012 WL 5839711 (D.D.C. Nov. 19, 2012), reprinted in JA
862–81. It reached three conclusions with respect to Ward’s
failure to accommodate claim: (1) the BVA acted in good
faith by engaging in an interactive process to determine a
reasonable accommodation but Ward walked away from that
process, see JA 873–76; (2) the BVA’s August 8 letter offered
Ward the very accommodation she sought, see JA 876–79; and
(3) Ward had not demonstrated that she could perform the
essential functions of her job with an accommodation, see JA
879–80. Having rejected Ward’s failure to accommodate
claim, the district court held that her constructive discharge
claim failed a fortiori. JA 880–81.
Ward timely appealed. We review the district court’s
grant of summary judgment de novo. Mogenhan, 613 F.3d at
1165. “Summary judgment is appropriate only if ‘there is no
genuine issue as to any material fact and . . . the movant is
entitled to judgment as a matter of law.’ ” Id. (quoting FED. R.
CIV. P. 56(c)(2)). “A dispute about a material fact is not
‘genuine’ unless ‘the evidence is such that a reasonable jury
9
could return a verdict for the nonmoving party.’ ” Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
II. Failure to Accommodate Claim
To prevail on her claim that the BVA failed to
accommodate her disability, Ward must produce sufficient
evidence that (1) she was a qualified individual with a
disability, (2) the BVA had notice of her disability and (3) the
BVA denied her request for a reasonable accommodation.
Stewart v. St. Elizabeths Hosp., 589 F.3d 1305, 1307–08 (D.C.
Cir. 2010). Ward bears the burden of proving these elements
by a preponderance of the evidence. Barth, 2 F.3d at 1186.
The second element is undisputed: The BVA had notice of
Ward’s condition. The district court concluded that Ward had
not satisfied the first element because she failed to demonstrate
that she could perform the essential functions of her job with an
accommodation. See JA 879–80. We express no opinion on
that conclusion, however, because we agree with the district
court that Ward failed to satisfy the third element: No
reasonable jury could find that Ward’s accommodation request
was denied in light of the BVA’s continuing good-faith
dialogue with Ward to determine an appropriate
accommodation, which dialogue was cut short by Ward’s
sudden resignation. See JA 873–76.
Few disabilities are amenable to one-size-fits-all
accommodations. To meet its obligations under the Act, then,
an employer needs information about the nature of the
individual’s disability and the desired
accommodation—information typically possessed only by the
individual or her physician. An individual seeking
accommodation need not provide medical evidence of her
condition in every case: “[A]n employee confined to a
wheelchair would hardly need a doctor’s report to show that
10
she needed help in getting to her workstation if this were
accessible only by climbing a steep staircase.” Langon, 959
F.2d at 1058. But “[w]hen the need for an accommodation is
not obvious, an employer, before providing a reasonable
accommodation, may require that the individual with a
disability provide documentation of the need for
accommodation.” Stewart, 589 F.3d at 1309 (quoting 29
C.F.R. pt. 1630 app. § 1630.9). EEOC regulations therefore
provide:
To determine the appropriate reasonable
accommodation it may be necessary for the [agency]
to initiate an informal, interactive process with the
individual with a disability in need of the
accommodation. This process should identify the
precise limitations resulting from the disability and
potential reasonable accommodations that could
overcome those limitations.
29 C.F.R. § 1630.2(o)(3); see also Mogenhan, 613 F.3d at
1167 & n.4.
The process contemplated is “a flexible give-and-take”
between employer and employee “so that together they can
determine what accommodation would enable the employee to
continue working.” EEOC v. Sears, Roebuck & Co., 417 F.3d
789, 805 (7th Cir. 2005) (quotation marks omitted); see also
Mogenhan, 613 F.3d at 1167–68 & n.4; Stewart, 589 F.3d at
1308–09. “[N]either party should be able to cause a
breakdown in the process for the purpose of either avoiding or
inflicting liability.” Sears, 417 F.3d at 805 (quotation marks
omitted). Thus,
courts should look for signs of failure to participate in
good faith or failure by one of the parties to make
11
reasonable efforts to help the other party determine
what specific accommodations are necessary. A party
that obstructs or delays the interactive process is not
acting in good faith. A party that fails to
communicate, by way of initiation or response, may
also be acting in bad faith. In essence, courts should
attempt to isolate the cause of the breakdown and then
assign responsibility.
Id. (quotation marks omitted); accord Taylor v. Phoenixville
Sch. Dist., 184 F.3d 296, 312 (3d Cir. 1999). For instance,
“when the parties are missing information that can only be
provided by one of the parties, the party withholding the
information may be found to have obstructed the process.”
Jackson v. City of Chi., 414 F.3d 806, 813 (7th Cir. 2005)
(quotation marks omitted); accord Stewart, 589 F.3d at 1308–
09. In sum, to establish that her request was “denied,” Ward
must show either that the BVA in fact ended the interactive
process or that it participated in the process in bad faith.
Here, the interactive process broke down before the BVA
decided on Ward’s request and no reasonable juror could have
found that the BVA, rather than Ward, was responsible for the
breakdown. Ward first asked for an accommodation in
March. In April, Ward presented her supervisor with a brief
letter from her physician saying little more than that she was
receiving treatment for a chronic medical condition that
requires daily treatment and would “benefit from a schedule
that allows her to work from home.” JA 205. The letter cast
doubt on Ward’s capacity to continue working full-time,
however, by stating that “[t]he maximum number of daily work
hours will be determined as the condition stabilizes.” JA 205.
Accordingly, on May 3, Ward’s supervisors met with her in
person and requested more information about her condition.
They repeated the request in writing the same day, setting forth
12
the information needed by the BVA to evaluate Ward’s “ability
to perform the duties of [her] position.” JA 243. Ward
produced a letter from another physician in response but it too
left doubt about her ability to work full-time by noting that she
could not sit for long periods and that her treatments take one
to three hours at a time. On May 25 and 31—i.e., within days
of receiving the physician’s letter—Ward’s supervisors twice
met with her to discuss her request.3 On June 5, the BVA set
forth in writing precisely the information it needed to
“reasonably accommodate [Ward’s] request for a
[work-from-home] arrangement.” JA 246. Ward did not
respond but instead resigned six days later. As the district
court concluded, the interactive process broke down when
Ward “walked away.” JA 874.4
3
Ward’s deposition testimony that her request was denied at
the May 31 meeting differs from the testimony of the other
participants in the meeting. Although we view the evidence in the
light most favorable to Ward, the letter Ward received on June 5 (and
had asked for at the meeting) made clear that, whatever was said at
the meeting, her accommodation request was still under
consideration.
4
As noted, the district court also concluded that no
reasonable juror could find Ward’s request had been denied because
the BVA “offered her the exact accommodation she sought” in its
August 8 letter. JA 877. Because we conclude the interactive
process had broken down when Ward resigned two months earlier,
we need not address whether the BVA’s August 8 letter—which said
the BVA was “willing to consider allowing [Ward] to try
work-from-home on a full-time basis,” JA 261—in fact offered her
the accommodation she sought or whether the letter is further
evidence of the BVA’s willingness to continue the dialogue. We
note, however, that the August 8 letter came after Ward had made
plain her intent to sue. See JA 258. The BVA’s offer in the face of
litigation cannot be viewed as evidence of pretext.
13
We addressed similar circumstances in Stewart, in which
the plaintiff was a housekeeper at a mental facility whose
interactions with the patients caused her own mental health to
deteriorate. 589 F.3d at 1306–07. When the plaintiff
requested a transfer, a supervisor promptly met with her and
told her that he would help her as soon as she completed
paperwork documenting her disability. Id. at 1307. She left
work that afternoon and never returned. Id. She sued,
claiming her employer had denied her a reasonable
accommodation but the district court granted the employer’s
motion for judgment as a matter of law. Id. We affirmed
because “[n]othing in the evidence presented suggest[ed] that
[the supervisor] acted in anything but an entirely appropriate
manner” when he met with the plaintiff and requested medical
documentation. Id. at 1308–09. In so holding, we cited two
cases from our sister circuits that closely resemble Ward’s
case. See id. at 1309 (citing Beck v. Univ. of Wis. Bd. of
Regents, 75 F.3d 1130, 1136 (7th Cir. 1996) and Templeton v.
Neodata Servs., Inc., 162 F.3d 617, 619 (10th Cir. 1998)).
In Beck, the plaintiff was a secretary who suffered from
arthritis, depression and anxiety. 75 F.3d at 1132. Upon
returning from medical leave, she asked for an unspecified
accommodation for her depression. The employer sought
further information from her physician but none was provided.
Id. at 1133. The plaintiff took another period of medical leave
and again sought an accommodation upon her return. This
request was somewhat more specific—it sought an adjustable
keyboard for her arthritis and a reduced workload to ease the
transition back to work. The request was also accompanied
by a letter from her physician. Id. Still uncertain what
accommodations were necessary, the employer again sought
more detailed information and got none. Id. The employer
also took steps to accommodate the plaintiff based on the
information it had but was unable to accommodate the plaintiff
14
to her satisfaction. Id. at 1136–37. She sued and the Seventh
Circuit affirmed the district court’s grant of summary judgment
to the employer because “[a]t no point did the [employer] fail
to respond in some manner to [the plaintiff’s] requests for
accommodation, and there is nothing in the record from which
we can discern any attempt by the [employer] to sweep the
problem under the rug.” Id. at 1136. The court observed that
“the information required to determine the necessary
accommodations was of the type that only [the plaintiff] could
provide” and “where . . . the employer makes multiple attempts
to acquire the needed information, it is the employee who
appears not to have made reasonable efforts.” Id. at 1137.
In Templeton, the plaintiff suffered serious head and neck
injuries in an automobile accident. 162 F.3d at 618. Her
physician sent her employer a letter explaining her condition
and expressing uncertainty as to the plaintiff’s ability to return
to work. The employer requested further information from
the physician but the plaintiff refused to authorize the
information’s release. Id. The Tenth Circuit affirmed the
district court’s grant of summary judgment to the employer,
explaining that “[a]n employer cannot be expected to propose
reasonable accommodation absent critical information on the
employee’s medical condition and the limitations it imposes.”
Id. at 619. Also in accord is Jackson, in which the Seventh
Circuit affirmed the district court’s grant of summary judgment
to the employer because the employer sent the plaintiff several
letters asking for more detailed medical information and got
only conclusory responses. 414 F.3d at 813–14. By contrast,
cases in which our sister circuits have found genuine issues of
fact regarding the responsibility for the breakdown of the
interactive process typically include evidence that the
employer was in some way unresponsive to the plaintiff’s
requests for accommodation. See, e.g., Sears, 417 F.3d at
807–08 (plaintiff “made several requests for accommodations
15
which [the employer] simply denied” and employer, “unlike
the defendants in [Beck and Jackson,] . . . did not actively
engage in the interactive process by suggesting possible
accommodations or requesting information that would help it
do so”); Fjellestad v. Pizza Hut of Am., Inc, 188 F.3d 944, 952–
53 (8th Cir. 1999) (employer did not discuss possible
accommodations with employee); Taylor, 184 F.3d at 315–16
(notwithstanding fact that plaintiff’s son “requested
accommodations [for plaintiff], informed [the employer] about
[plaintiff’s] condition, and provided [the employer] with the
means to obtain more information if needed,” employer
“offered no accommodations or assistance in finding them,
made [plaintiff’s] job more difficult, and simply sat back and
continued to document her failures”).
Here, the BVA’s participation bore all the hallmarks of
good faith. Ward’s 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. Like the plaintiffs in Stewart, Beck,
Templeton and Jackson, Ward did not provide the requested
information. Instead, she resigned. No reasonable juror
could have found that the BVA denied Ward’s request for an
accommodation, then, because Ward abandoned the interactive
process before the BVA had the information it needed to
determine the appropriate accommodation.5 The district court
5
Ward notes that the BVA has a “flexiplace” or “telework”
policy whereby BVA employees whose job duties and performance
records meet certain criteria may work from home with the approval
of their supervisor. See JA 804, 807–08; see also JA 654–57. The
existence of such a policy and any history of the employer allowing
similarly situated employees to work from home are undoubtedly
relevant to whether a work-from-home arrangement is a reasonable
accommodation. See Woodruff, 482 F.3d at 528. But in those
16
correctly awarded summary judgment to the VA Secretary
because Ward “fail[ed] to make a showing sufficient to
establish the existence of an element essential to [her] case.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).6 Ward is
instances where the BVA granted other employees’
work-from-home requests due to disabilities, adequate medical
documentation had been provided. See JA 518–22, 662–67, 815.
Our dissenting colleague appears to view the full-time telework
arrangement as the rule, not the exception, and concludes that the
BVA must immediately grant the request of any fully successful
employee who seeks to work from home. See Dissenting Op. 2–3.
The reverse is true. See JA 807 (“Position suitability and
availability of staff and resources are considerations for management
when determining employee participation [in a telework
arrangement]. . . . VA employees selected for telework arrangement .
. . should have a history of being reliable, responsible, and able to
work independently. . . . The supervisor is responsible for
determining how many days per week are appropriate for a telework
arrangement. Each arrangement to telework is to be considered
individually.” (emphasis added)). Although it might have been
reasonable for the BVA to permit Ward to work from home, it does
not follow that the BVA exhibited bad faith by not immediately
granting Ward that accommodation without further inquiry. Cf.
Mogenhan, 613 F.3d at 1168 (noting “there are certainly
circumstances in which a long-delayed accommodation could be
considered unreasonable” (quotation marks omitted)). There was
no long delay here. No more than three months passed from Ward’s
first request to her resignation and much of that time was spent
waiting for Ward to provide more information about her condition.
Had the process been allowed to play out, the BVA may well have
settled on a full-time work-from-home accommodation; it may
instead have thought of other reasonable accommodations. Ward
cannot cut the process short and then blame her employer for not
immediately granting her specific request.
6
Our dissenting colleague deems the information sought by the
BVA in the June 5th letter “irrelevant.” Dissenting Op. 3. We
17
the author of her misfortune—she and the BVA parted ways
not because the BVA discriminated or retaliated against her
based on her disability but because she acted precipitately.
III. Constructive Discharge Claim
Ward contends that she was constructively discharged
because the BVA’s “continued refusal[,] obstruction and delay
in accommodating [her] limitations made working conditions
so intolerable that any reasonable person with her disability
would feel compelled to resign.” Br. of Appellant at 50, Ward
v. Shinseki, No. 12-5374 (D.C. Cir. Nov. 13, 2013). A claim
of constructive discharge based on disability discrimination
“must be predicated on a showing of either intentional
discrimination, or retaliation.” Mayers v. Laborers’ Health &
Safety Fund of N. Am., 478 F.3d 364, 370 (D.C. Cir. 2007)
(quotation marks omitted); see also Johnson v. Shalala, 991
F.2d 126, 131–32 (4th Cir. 1993) (elements of constructive
discharge not met by failure to accommodate absent “evidence
that the employer intentionally sought to drive [employee]
from her position”); cf. Mungin v. Katten Muchin & Zavis, 116
F.3d 1549, 1558 (D.C. Cir. 1997) (under Title VII of the Civil
Rights Act of 1964, “a finding of constructive discharge
depends on whether the employer deliberately made working
conditions intolerable and drove the employee out” (quotation
marks omitted)). We have already concluded that the BVA
did not deny Ward’s accommodation request but rather
disagree. Whether it was an “essential feature[] of Ward’s job,” id.
at 4, to sit for prolonged periods or to carry heavy case files, Ward’s
ability to perform these tasks was unquestionably relevant in
determining a reasonable accommodation. By asking these
questions, the BVA sought—as EEOC regulations instruct—to
know the “precise limitations resulting from the disability” so that it
could determine “potential reasonable accommodations that could
overcome those limitations.” 29 C.F.R. § 1630.2(o)(3).
18
responded promptly and in good faith. Ward’s inability to
make out a claim of failure to accommodate “necessarily
means that her constructive discharge claim fails.” Cole v.
Powell, 605 F. Supp. 2d 20, 26 (D.D.C. 2009).
For the foregoing reasons, we affirm the district court’s
grant of summary judgment to the VA Secretary.
So ordered.
MILLETT, Circuit Judge, dissenting: “Everything should
be made as simple as possible, but not simpler.”1 And therein
lies the critical flaw in the majority opinion’s analysis. The
opinion paints a logically alluring picture: Ella Ward sought
an accommodation, but rather than give the Secretary of
Veterans Affairs the information needed to provide it, she
walked away. How could anyone blame the Secretary for
that?
The problem is that the essential predicate for the
majority opinion’s conclusion—that the June 5th letter to
Ward from her supervisors sought only information “needed
to ‘reasonably accommodate’” her, Maj. Op. 12 (emphasis
added)—long ago evaporated. The Secretary admits that he
did not need the demanded information to accommodate
Ward; the letter sought nothing that was tied to the actual
demands of her job; and the information demanded was
irrelevant to ensuring that her requested flexiplace
accommodation was practicable. The factual record, in other
words, pulls the legal rug out from under the majority’s feet.
Ward cannot be saddled with legal responsibility for failing to
respond to questions her supervisors had no business asking.
That is especially so because her increasing inability to
properly treat her lymphedema in the office was literally
endangering her life, making the delay caused by her
supervisors’ unjustified factual detours acutely harmful.2
There are three essential points on which the majority and
I part company:
1
See The Ultimate Quotable Einstein 475 (Alice Calaprice ed.
2011).
2
While the ultimate determination of the facts should be for the
jury, this dissent views all of the disputed material facts in the light
most favorable to Ward, as the law requires. See, e.g., Mogenhan v.
Napolitano, 613 F.3d 1162, 1165 (D.C. Cir. 2010).
2
1. THE FLEXIPLACE WORK OPTION NEVER BEFORE
REQUIRED A SHOWING OF MEDICAL CONDITION
The majority opinion starts on the wrong track. It
assumes that some showing of medical necessity and physical
compatibility is a precondition for an employee in the
Department of Veterans Affairs to work from home. Not so.
As the majority opinion acknowledges, the Department’s
flexiplace program is available to employees “whose job
duties and performance records meet certain criteria.” Maj.
Op. at 15 n.5; see also J.A. 807. Ward came forward with
evidence that her employment position and her “fully
successful” rating qualified her to work at home under the
program. J.A. 447. The majority opinion’s assumed
predicate showing of “adequate medical documentation”
(Maj. Op. at 16 n.5) appears nowhere in the program criteria;
it never even mentions physical condition.
Nor does the Secretary of Veterans Affairs contend that
otherwise-qualified employees have had to make a threshold
showing of medical need to enjoy the work-at-home option.
At least not for any employee other than Ward, whom the
Secretary apparently chose to put on a different track with
different demands because of her disability. J.A. 769.
Perhaps the Secretary would say that he was concerned with
how Ward would juggle her medical treatments and full-time
work. But given that (i) Ward met the preexisting criteria for
participation in the flexiplace program; (ii) Ward had already
been working successfully full time in the office with her
acute disability for the preceding two months, (iii) Ward had
assured her supervisors that “I’m confident I would produce
my three cases * * * if I could sit there in my [medically
required state of undress] and prop my leg up and do what I
need to do,” J.A. 565, and (iv) the presence of Ward’s
disability is the only discernible reason for the supervisors’
3
distrust of Ward’s judgment, a jury could just as likely find
that, by demanding that Ward make an exceptional showing
not required of other flexiplace applicants, Ward’s supervisors
got the accommodation process wrong from the get-go.
The majority opinion responds that normal flexiplace
procedures did not entitle Ward to an “immediate[]” grant of
her requested accommodation. Maj. Op. at 16 n.5. No one
said they did. The relevant question is whether a jury could
find the accommodation process was needlessly prolonged.
And, as the majority elsewhere acknowledges, it was after
Ward had already spent “three months” (id. at 17 n.5) meeting
her supervisors’ evidentiary inquiries that the June 5th letter
demanded that Ward chase down admittedly unneeded
information.
2. THE INFORMATION DEMANDED WAS IRRELEVANT
While the majority opinion places dispositive reliance on
Ward’s supervisors’ need in the June 5th letter for more
information, it is telling that the opinion never—not even
once—says what extra information that letter sought. And
that inquiry is what makes all the difference, because the
Secretary has since confessed that not one bit of the
information he sought was “needed to ‘reasonably
accommodate’” Ward (Maj. Op. at 12), or has any relevance
to any of the essential functions of Ward’s job. Not one.
The letter demanded that Ward have her physician
document: “how many hours, in total, that you are able to
work sitting at your desk reviewing case files and drafting
decisions during the approved work day, i.e., during a
continuous period from 8.5 to 10 hours”; and “whether you
are capable of transporting case files and a laptop computer
back and forth to work at least once a week, which may
weigh, collectively, up to about 45 pounds, and whether you
4
can lift individual cases that may weigh over 25 pounds each,
at home.” J.A. 247. The letter thus purported to identify
three essential features of Ward’s job: (i) sitting, rather than
standing or alternating positions, for long periods of time, (ii)
completing work during a block of time lasting no more than
ten hours per day, and (iii) carrying heavy case files in stacks
of up to 25 pounds at a time. None of that holds true.
First, it was simply false to assert that Ward’s job as a
lawyer requires that she “sit[] at [he]r desk * * * during a
continuous period from 8.5 to 10 hours.” J.A. 247. In his
deposition, Ward’s supervisor and the author of the June 5th
letter, Steven Cohn, admitted that “[i]t wasn’t a question of,
can you sit for a period of time; can you stand for a period of
time,” since the need is just for employees to “be[] at home
and doing the work[;] People at home—I mean, people can
proofread and walk around.” J.A. 726–727.
That makes sense. Ward is a lawyer whose job was to
review cases and prepare draft decisions. She could do that
sitting down; she could do that standing up; she could
alternate positions; she could even do that walking around
with a dictation machine. J.A. 754.3 No one disputes that;
Cohn admits it. So that portion of the supervisors’ letter
sought information that was decidedly not “needed” (Maj. Op.
at 12) to accommodate Ward.
Second, the Secretary undisputedly does not demand that
employees in the flexiplace program complete their work
within a pre-set, ten-hour window in a given work day. The
3
Indeed, adjustable and standing desks have become
commonplace. See, e.g., Steve Lohr, Taking a Stand for Office
Ergonomics, NEW YORK TIMES, Dec. 1, 2012,
http://www.nytimes.com/2012/12/02/business/stand-up-desks-
gaining-favor-in-the-workplace.html.
5
Department of Veterans Affairs Handbook specifically
identifies a “modified work schedule” as a possible
accommodation for a disabled employee. J.A. 268. In
keeping with that policy, the Secretary has previously allowed
a lawyer working from home in the flexiplace program to pick
up case files “other than during [her] official duty day,”
including “during the workweek or evening, or on the
weekend[.]” J.A. 815. And Jonathan Kramer, another of
Ward’s supervisors, admitted in his deposition that a modified
work schedule “would suffice as a possible reasonable
accommodation for an employee with a disability,” but that he
“did not think about” that possibility, J.A. 499–500,
notwithstanding Ward’s request for such flexibility. Thus, the
supervisors’ insistence that Ward document her ability to
complete her work within a rigid ten-hour block of time was a
makeweight.
Third, while the letter insisted that Ward document her
physical ability to carry heavy case files, Cohn again gave
away the game, admitting the irrelevancy of that demand.
Cohn’s letter itself acknowledged that “the Board can assign a
cart for you to use, or you can always ask me or [an]other
management official on the team for assistance in transporting
any heavy case files.” J.A. 246. That accords with the
Board’s treatment of another of Ward’s colleagues in the
flexiplace program, who was allowed to have her “husband or
another individual assist [her] in transporting [work] materials
to [her] Alternate Work Station[.]” J.A. 815. What is more,
Kramer admitted in his deposition that, at home, Ward could
have moved the necessary documents piece by piece, rather
than all at once in heavy stacks. See J.A. 493. Weight-lifting,
in short, is confessedly not an essential element of Ward’s
lawyer position or required for a reasonable accommodation
to work. So when the majority opinion says the supervisors’
demand for proof that Ward “can lift individual cases that
6
may weigh over 25 pounds each, at home” was seeking
“precisely the information it needed to ‘reasonably
accommodate’” her, Maj. Op. at 12, that is just not correct.
The majority opinion points to the requirements for the
flexiplace program. Maj. Op. 16 n.5. They prove my point:
prolonged sitting and heavy lifting make no appearance. The
policy instead lists “[p]osition suitability,” which is
undisputed for Ward’s job; and a jury could reasonably find
Ward “reliable, responsible, and able to work independently”
given her work record, as a long-term and “fully successful”
employee, and her persevering service even with her disabling
condition. See id. The majority opinion’s reference to
“adequate medical documentation” submitted by others (id.)
is even harder to understand, because, again, not one of those
employees was asked about sitting endurance or dead-lifting
case files.
The majority opinion reasons that, even though irrelevant
to Ward’s job performance, the information sought in the June
5th letter was “unquestionably relevant in determining a
reasonable accommodation.” Maj. Op. at 17 n.6. But not
even the Secretary argues that any such showing of physical
conditioning is needed to work at home rather than in the
office. Nor was any such showing demanded of any other
employee—disabled or not.
If more were needed, the supervisors’ abrupt reversal of
course on August 8th provides it. Without having received
one bit of the information that the majority opinion deems so
essential to granting Ward an accommodation, the Secretary
offered Ward the opportunity to “try work-from-home on a
full-time basis.” J.A. 261. The Secretary confirmed at oral
argument that, in the August 8th letter, the supervisors
decided to “try what she’s asking for.” Oral Arg. Tr. at 18:7–
7
18:8. But the supervisors knew no more in August than they
knew in June. If no more information was needed to “try
what she’s asking for” in August, it could not have been
“unquestionably relevant” just two months earlier.
Presumably, the pointlessness of the June 5th inquiry is why
the Board of Veteran Appeals’ Assistant General Counsel
advised those supervisors in August that they “should have
just offered, at that point, offered the arrangement she
requested.” J.A. 769.
To that, the majority opinion simply asserts that “the
[Department’s] offer in the face of litigation cannot be viewed
as evidence of pretext.” Maj. Op. 13 n.4. But this is
summary judgment, so the question should not be how
appellate judges view the evidence, but whether a reasonable
jury could view things differently based on not only the
August 8th reversal of course, but also the Department’s
admissions that the information was unneeded and its failure
to demand a similar showing from any other employee
admitted into the flexiplace program.
Finally, counsel for the Secretary protested at argument
that Ward “wasn’t entitled to get the position,” but that the
Secretary offered it anyway because “they liked her, they
thought she was a good employee.” Oral. Arg. Tr. at 19:2–
19:7. Counsel cannot mean what he said. Surely the
Secretary would not expend taxpayer money giving Ward a
make-work sinecure. Nor, given her “fully successful” rating
and proven ability to perform her job for two months even
under the physically onerous conditions of in-office work,
J.A. 447, does the record foreclose a reasonable jury from
finding that she was a qualified individual with a disability.
Instead, counsel could only have meant the Secretary felt
legally entitled to delay her accommodation until she ran a
gauntlet of intrusive and entirely unnecessary questioning.
8
3. WARD’S SUPERVISORS OBSTRUCTED THE
ACCOMMODATION PROCESS
Because the Secretary’s concessions expose the June 5th
letter’s informational demands as a contrivance, the majority
opinion’s discussion (Maj. Op. at 13-15) of case law
permitting employers to seek “critical” information that is
genuinely “needed” to formulate a reasonable accommodation
is quite beside the point. Far from requesting needful
information, the Board demanded that Ward have her
physician certify to a litany of irrelevancies. And her
supervisors did so not in the heat of the moment during a
meeting, but after fully considering their position for five days
after the May 31st meeting. A reasonable jury thus could find
that this case involves supervisors throwing up obstacles to an
accommodation that were not applied to other employees and
that have no bearing on the reasonableness of the
accommodation sought. That employers may not do. See,
e.g., Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 695–
696 (7th Cir. 1998) (refusing to grant summary judgment to
an employer because it may not have participated in good
faith in finding accommodation); Cravens v. Blue Cross &
Blue Shield of Kansas City, 214 F.3d 1011, 1021 (8th Cir.
2000) (same).
The majority opinion emphasizes that the employer never
failed to respond “in some manner” to Ward. Maj. Op. at 14
(quoting Beck v. University of Wisconsin Board of Regents,
75 F.3d 1130, 1136 (7th Cir. 1996)). True. But the
accommodation process is not a verbal game of tag in which
the last person to say something wins. The point of the
interactive process is to exchange the information needed to
determine whether a reasonable accommodation of a qualified
individual can be made.
9
In this case, as the majority opinion suggests (Maj. Op. at
12 n.3), the facts taken in the light most favorable to Ward
show that her supervisors cut off the accommodation process
at a meeting on May 31st when they laughed at her,
humiliated her, and denied her request to work at home full
time unless and until Ward met their demands for unneeded
information. J.A. 580–581. On that record, a jury could find
that the employer’s demands amounted to stonewalling, and
thus that it is the employer that broke down the process. Id. at
580 (Ward: “I’m trying to get here to do my job. You know
I’m suffering, and * * * you’re dragging your feet on it.”).
And while the majority opinion concludes that the June 5th
letter saves the day, Maj. Op. 12 n.3, that rationale simply
cannot survive a review of the letter’s content and the
Secretary’s admissions.
The costs of such delaying inquiries, moreover, can be
dire for some individuals with disabilities, as this case
illustrates. Ward’s lymphedema can be life threatening, and
working full time at the office while her supervisors debated
giving her the already-established flexiplace option was
taking a severe physical toll on Ward. J.A. 195, 600.
Insisting, as her supervisors did in that June 5th letter, that she
go back to the well for information no one needed before
giving her the accommodation was anything but the harmless
delay that the majority opinion posits (Maj. Op. at 16 n.5).4
*****
4
The district court granted summary judgment on Ward’s
constructive discharge claim for the same flawed reasons it turned
away her accommodation claim, Ward v. Shinseki, No. 10-cv-1414
(RLW), 2012 WL 5839711 at *10 (D.D.C. Nov. 19, 2012), so I
would remand to the district court to reconsider that claim in the
first instance.
10
What actually happened in this case—who is right and
who is wrong—is for a jury, not an appellate court, to decide.
All that matters at this juncture is that, once the actual content
of the June 5th letter and the Secretary’s admissions are
factored in, a reasonable jury could disagree with the majority
opinion that Ward’s supervisors were just seeking
“information [they] needed to determine the appropriate
accommodation” (Maj. Op. at 15), and could instead find that
it was Ward’s supervisors that obstructed the accommodation
process.
For five years, Ward proved herself a hard-working, fully
successful attorney for the Department of Veterans Affairs.
All she asked for was the same flexiplace program afforded
other employees in her position, whether or not they were
disabled. 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—or so a jury could find.
I respectfully dissent.