On September 15, 2021, the Tenth Circuit Court of Appeals upheld the grant of a summary judgment by a district court in favor of an employer. In Brown v. Austin, the Tenth Circuit found that an employee’s telecommuting, weekend work, and request for a change of supervisor were unreasonable under federal rehabilitation law and that the employee did not allege a case prima facie case of discrimination based on disability, retaliation or constructive dismissal.
Alfred Brown worked for the Defense Health Agency, an agency of the US Department of Defense, as a Healthcare Fraud Specialist (HCFS) at the Program Integrity Office (PIO) from April 2010 until his resignation in 2014. In this role, he served on a team of four and was responsible for coordinating with various law enforcement agencies to investigate fraud in the military health care system. Shortly after being hired, Brown informed his supervisors that he suffered from “post-traumatic stress disorder and other panic and anxiety disorders related to his military service.” He said that “these conditions affect[ed] his ability to deal with stress, concentrate and communicate, and that stressful environments can worsen his symptoms and sometimes cause panic attacks. During Brown’s first two years of employment with the agency, he was granted leave under the Family and Medical Leave Act (FMLA) to receive medical treatment for his conditions.
Citing his terms, Brown asked to work from home “twice a week and work weekends to make up for lost time during the week.” Although the agency rejected her requests, it allowed her to work from home once a week, cut her air travel, provided her with noise-canceling headphones, and reminded employees of office etiquette and levels of noise. noise around workers’ cabins. The agency further offered to move Brown’s cabin “to a less frequented area, rais[e] the walls of his cabin, and allow unpaid wellness breaks â, which he all rejected. On numerous occasions, Brown has also requested a transfer to another supervisor’s team, citing strained relationships with supervisors. The agency claimed it had rejected Brown’s application due to a lack of available positions in other teams within the PIO.
Months later, the agency placed Brown on paid administrative leave pending an investigation into a fight he had with a supervisor. Brown received “a letter of reprimand” but was allowed to return to work. Brown’s difficult relationship with his supervisors continued until his resignation, saying the denial of his requests to transfer to another supervisor was on “prejudiced and prejudicial grounds”.
Brown sued the agency, alleging it failed to consider his disabilities, subjected him to discrimination and retaliation, and constructively fired him. The district court issued summary judgment in favor of the agency on all of Brown’s claims, ruling that there were no issues likely to be adjudicated on Brown’s claims that the agency did not had not taken into account his mental health problems, had discriminated against him on the basis of these disabilities, subjected him to retaliation or in a constructive manner. sent him back. Brown appealed the summary judgment grant, “challenging the district court’s rulings that (1) his requests for telework, weekend work and supervisor reassignment were not reasonable accommodations;” and (2) he failed to establish a prima facie case of discrimination on the basis of disability, retaliation and constructive dismissal.
“Plausibly reasonable accommodations“
The parties focused their inability to heed the arguments on whether Brown’s request to telework twice a week, perform weekend work and be reassigned to another supervisor constituted “accommodations.” reasonably plausible â, a factor that must be observed under rehabilitation law.
The Tenth Circuit accepted the district court’s ruling that the homework demand was unreasonable. In so ruling, the court determined that Brown’s presence in the office four days a week was an essential function of his job because an HCFS must have full access to the files, which are in the office. The court recognized that although photocopies could be made before a day’s remote work, the files could be up to [three] feet thick â(brackets in original) and law enforcement partners, with whom the HCFS works closely, may have questions about files that were not scanned at the advance. For this reason, agency policies only allowed one day of remote work every two weeks, which employees often used for training purposes. After examining Brown’s own belief that he could perform the essential functions of his work from home, the evidence of remote work by other employees after his tenure with the agency and the lack of reference to physical presence in the job description, the court ultimately referred to the agency’s judgment regarding essential functions.
The Tenth Circuit then looked at Brown’s request to work weekends to make up for time he missed during the week. The court ruled that Brown’s request to work weekends was also unreasonable because an essential function of an HCFS’s job is to collaborate with law enforcement partners who work a standard Monday schedule. see you on Friday. In addition, no supervisor or employee worked weekends in the absence of urgent matters, so Brown’s weekend work would be carried out unattended.
Regarding his request for reassignment to a new supervisor, Brown argued that the district court erroneously assumed that the agency was only required to grant accommodation requests that would enable him to perform the essential functions of his work. Brown argued under the enhanced accommodation standard of the Rehabilitation Act, which “applies  when an employee “seeks transfer accommodation for medical care or treatmentFederal employers must grant a request for accommodation even if the employee can perform essential duties without it. (Emphasis in original.) The Tenth Circuit disagreed with Brown and felt that the enhanced standard did not apply, believing that (1) Brown had failed to prove that he could not perform the essential functions of their position; (2) he did not argue that a reassignment would have enabled him to better treat his disabling conditions; and (3) he did not request reassignment for medical reasons, but rather because of conflicts with his supervisor. Unlike the Seventh Circuit Court of Appeals, which applied the enhanced accommodation standard to “enable employees with disabilities to ‘lead a normal life'”, the Tenth Circuit refused to adopt a standard that went beyond accommodation for medical care. For these reasons, the court ruled that Brown had not presented evidence of circumstances requiring a reassignment.
Complaints of discrimination on the basis of disability
The court then turned to Brown’s allegations of discrimination on the basis of his disability, namely that he had been the subject of retaliation, disparate treatment and constructive dismissal. Brown argued that the following actions constituted unlawful retaliation: (1) revocation of his ability to work weekends; (2) the denial of his request to be transferred to another supervisor for the filing of a charge of discrimination; (3) his placement on paid administrative leave and the issuance of the letter of reprimand; and (4) an email refusing his request for a change of supervisor.
The court ruled that a âreasonable employeeâ would not have found any of these actions âmaterially unfavorableâ. The court noted that Brown had never had the privilege of working weekends in the first place, Brown’s transfer request was based solely on personal preferences, the paid administrative leave caused him no economic or social harm. , and nothing in the email would deter an employee from filing a complaint or requesting accommodation.
Disparate processing and implicit discharge requests
Next, the court looked into the allegations of Brown’s disparate treatment and, using the same reasoning for the reprisal allegations, found that the denial of his ability to work on weekends and the incident at during which he was put on administrative leave with pay and issued a letter of reprimand did not show that Brown was the subject of adverse action. The court concluded that Brown’s third and final request for disparate treatment did not show that Brown’s employment status had changed significantly and was therefore “not adverse action”. Brown argued that adverse action occurred when his privilege to take unauthorized emergency leave was revoked and his compensation could have been revoked by a letter sent to him reminding him to follow the policy. of the office regarding early leave requests. The court disagreed, noting the wording of the letter allowing Brown to take unauthorized leave in an emergency and the fact that Brown did not in fact lose any wages.
Finally, the court upheld the district court’s finding that there was no trialable issue in Brown’s implied discharge request. The court ruled that Brown’s subjective belief that he had no choice but to resign, alone, was deemed insufficient to survive summary judgment.
Key points to remember
This case limited the enhanced standard of accommodation under the Rehabilitation Act and clarified that it does not apply to accommodation requests that are not related to the employee’s medical care or treatment. However, employers may still want to carefully review each employee’s request for accommodation and follow all policies and procedures in place. In doing so, employers may want to determine whether a telework request would negatively impact the employee’s ability to work with other employees or allow the employee to work unsupervised. Employers may also want to analyze the underlying reasons for transfer requests, to determine if they are based on an underlying medical reason or on personal, non-medical preferences.
Rebecca Vorhees also contributed to this article.
Â© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, PC, All rights reserved.Revue nationale de droit, volume XI, number 268