Under the Americans with Disabilities Act (“ADA”), an employer has an obligation to participate in the interactive process once an employee make known that he has a disability that may require accommodation. However, the employee himself must also cooperate in the process and cannot simply demand an accommodation of his choosing. A recent federal court decision sheds light on what does and does not satisfy those obligations and how disputes over what is an appropriate accommodation should be resolved.
Just last month, a New York federal court held that a federal employer may have violated the ADA when it flatly refused to consider a job relocation or telecommuting arrangement as an accommodation for an employee simply because the employee was a poor performer. The case is Goonan v. Federal Reserve Bank of New York (SDNY July 22, 2014).
The plaintiff in that case, Bruce Goonan, worked for the Fed for 25 years as a computer application developer—most years out of an office on Maiden Lane. Goonan suffered from severe post-traumatic stress disorder (“PTSD”) after 9/11, which got even worse after his department moved to a building overlooking the new World Trade Center site. As Goonan’s PTSD worsened, his performance drastically declined and he received unsatisfactory performance reviews.
In March 2011 Goonan requested permission to work from a different Fed building in the immediate vicinity but further from the WTC or, alternatively, to telecommute from home. His supervisor denied the request, saying telecommuting was a “privilege” and Goonan would have to improve his work performance to be eligible. The Fed later offered Goonan seven alternative accommodations, which previously had proven effective for another employee with 9/11-related PTSD. These accommodations included relocating Goonan’s cubicle away from the view of the WTC, allowing him to listen to music at work, special lighting fixtures, and additional supervision. However, Goonan’s own doctors thought the proposed accommodations would be ineffective, if not harmful, for Goonan.
In August 2011 after visiting multiple doctors and consulting with various levels of Fed management, including the Fed’s ombudsman, Goonan retired in the face of the Fed’s refusal to grant his accommodation requests. Thereafter, he filed a lawsuit in federal court alleging that the Fed failed to provide him with a reasonable accommodation in violation of the ADA, New York State Human Rights Law, and the NYC Human Rights Law.
The Fed moved for summary judgment, arguing that it legitimately refused the transfer request in light of Goonan’s poor performance and need for additional supervision. The court rejected this argument, holding that denial of an accommodation to a disabled employee because of performance deficiencies would turn the reasonable accommodation process “on its head.” Moreover, the court found the Fed’s explanation “troubling,” since other employees with performance issues were permitted to telecommute full time.
The court also rejected the Fed’s arguments that (i) Goonan himself caused the interactive process to break down by refusing the reasonable accommodations offered to him and (ii) had an obligation to try the offered accommodations. As the court noted, “The fact that such modifications may have worked for another employee under different circumstances does not show that they were suitable for Goonan as a matter of law, particularly in light of his doctors’ statement.”
The Fed’s argument that Goonan caused the interactive process to break down by voluntarily retiring fared no better. Noting that there is no “brittle last shot rule” for determining who caused breakdown, the court held that the record reflected that Goonan retired only after becoming frustrated with Fed management, which stated it “was not going to change its mind” about Goonan’s transfer request. Most notably, the court held that “when presented with conflicting facts about the provenance of a breakdown, courts must deny motions for summary judgment.”