“The accommodation process is not a verbal game of tag in which the last person to say something wins,” according to the dissenting judge in a case that focused on which party was responsible for the breakdown of that process. Ward v. McDonald, Secretary U.S. Department of Veterans Affairs (D.C. Cir. August 12, 2014).
The plaintiff, an attorney advisor at the Board of Veterans Appeals (BVA), worked 8 to 10 hour days, reading case files and drafting opinions. In April, 2007, she asked to work from home full time due to a medical condition that required lengthy daily treatments and prevented her from sitting at a desk for long periods. She provided physicians letters to support her request. Between April and June, 2007, the BVA representatives met with her to discuss her request and asked for additional medical information, which the plaintiff provided. In June, when her supervisors asked for more information, the plaintiff resigned. Two months after the plaintiff’s resignation, the BVA sent her a letter granting her requested accommodation.
The plaintiff sued the BVA, alleging that it violated the Rehabilitation Act, which incorporates ADA standards, by failing to provide her a reasonable accommodation and constructively terminating her because the failure to accommodate her disability left her with no choice but to resign.
While accommodation process cases often focus on when the plaintiff “started it” by requesting an accommodation, this case focused on “who ended” the process and was responsible for its breakdown.
The appellate court affirmed summary judgment for the BVA, explaining that the plaintiff “is the author of her misfortune—she and BVA parted ways not because the BVA discriminated or retaliated against her based on her disability but because she acted precipitately” by resigning. The court held that the accommodation process broke down due to plaintiff’s “sudden resignation,” which cut short “the BVA’s continuing good-faith dialogue”
Distinguishing the accommodation process from a game of tag, the dissent noted that the fact that BVA was the last party to engage in the process does not mean the BVA “wins.” The dissent said that a jury could find that the BVA needlessly prolonged the accommodation process and forced the plaintiff to “ [run] a gauntlet of intrusive and entirely unnecessary questioning” and have her “certify to a litany of irrelevancies.”
While the defendant here succeeded in establishing that the employee was responsible for the breakdown of the accommodation process, employers should not reach this conclusion lightly. Other cases note that employers are typically more sophisticated than employees, have more resources available to them and, as a result, more is expected of them in the accommodation process.