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Finding flexible schedule to be unreasonable accommodation as a matter of law was wrong

Finding that nothing in the Rehabilitation Act takes a flexible schedule off the table as a reasonable accommodation as a matter of law, the D.C. Circuit reversed a district court’s grant of summary judgment in favor of the Department of Agriculture. An employee who suffered depression sought substantial flexibility in her working hours — what is known as a “maxiflex” schedule — as an accommodation for her disability. The district court held, as a matter of law, that the maxiflex work schedule was an unreasonable accommodation request. Here, the appeals court determined that the essential predicate of the district court’s decision — that the employee was legally foreclosed from a maxiflex schedule — was wrong (Solomon v Vilsack, August 15, 2014, Millett, P). The employee worked as a budget analyst in the Department of Agriculture. She had a long history of depression dating back to the 1980s. Beginning in late 2003 and early 2004, her illness intensified due to numerous personal hardships, and she began receiving treatment from a psychiatrist. Her deteriorating condition made it difficult for her to maintain her normal work schedule. As a result, the employee was out of the office a significant amount of time. To complete all of her work, she worked additional unscheduled hours and took work home. There were no complaints about her work performance. Her supervisor knew that the employee was working a modified schedule and reported missed hours as charged leave. The employee was permitted to hang a privacy curtain at the entrance to her cubicle, but the employer did not act on her request to be relocated to a quieter area. Request for flexible schedule. At the same time, the employee was pursuing an informal grievance process regarding a charge on her leave bank. In response to an email from the employee regarding her depression, the supervisor replied that if her condition required “special accommodations” and could impact her “normal duty schedule,” she should provide medical documentation. Thereafter, she provided a doctor’s note explaining her condition and requesting a flexible work schedule to assist in her medical treatment. Unable to come to a resolution with her supervisor, the employee filed an informal EEO grievance. One final attempt to resolve the dispute failed, and the employee filed a formal grievance. Ultimately, the employer rejected the employee’s request for a flexible schedule as an accommodation for her disability. Although the employee was asked for additional medical documentation, she was unable to comply within the ten-day deadline. She was also ordered to remove the privacy curtain from her cubicle. Thereafter, the employee filed a formal complaint of discrimination with the Department of Agriculture. Eleven days later, when the employee attempted to work late to finish a project, she was refused permission to work late without approval. For the next month, the employee’s doctor corresponded with the employee’s supervisors, and again requested appropriate accommodations. In the meantime, the employee communicated with her supervisors and asked permission to telecommute on a part-time schedule. This accommodation was also denied. Eventually, the employee applied for disability retirement. She also filed suit alleging violations of the Rehabilitation Act, ADEA, and Title VII. Specifically, she alleged that the Secretary’s refusal to provide reasonable accommodations for her disability violated the Rehabilitation Act, and that her supervisors had unlawfully retaliated against her for engaging in activities protected by the Rehabilitation Act, Title VII, and the ADEA. The case bounced between the district court and D.C. Circuit before the lower court ultimately found that the employee’s requested accommodation was unreasonable. The employee appealed that judgment. Reasonable accommodation. Here, the employer acknowledged that it was on notice of the employee’s medical condition and her request for a flexible work schedule. It was also undisputed that a reasonable jury could find that the employee’s chronic depression constituted a disability within the meaning of the Rehab Act. Importantly, the employer did not deny that if a maxiflex schedule were a reasonable accommodation for the employee, a reasonable jury could conclude that she could have performed all the essential functions of her job when she sought that accommodation. Accordingly, the question before the D.C. Circuit was whether a jury could reasonably find that the maxiflex schedule that the employee requested could be a reasonable accommodation within the meaning of the Rehabilitation Act. The appeals court determined that the district court wrongfully concluded that the maxiflex schedule was unreasonable as a matter of law. Flexible hours can be reasonable accommodation. Determining whether a particular type of accommodation is reasonable is commonly a contextual and fact-specific inquiry. Technological advances and the evolving nature of the workplace, moreover, have contributed to the facilitative options available to employers. As a result, it is rare that any particular type of accommodation will be categorically unreasonable as a matter of law. In this instance, the employee requested a maxiflex schedule that would afford her the ability to come to work late on some days or leave early on other days, as her condition required, as long as her work was completed properly and in a timely manner. The employer countered that the “ability to work a regular and predictable schedule” is, “as a matter of law, an essential element of any job.” However, the appeals court concluded that nothing in the Rehab Act takes a flexible schedule off the table as a matter of law. The D.C. Circuit noted that the First and Second Circuits agree that “[p]hysical presence at or by a specific time is not, as a matter of law, an essential function of all employment.” Moreover, it observed that other agencies in the federal government use viable maxiflex work schedules as a potential workplace option. Accordingly, the district court’s holding that an “open-ended” or maxiflex schedule is “unreasonable as a matter of law” was incorrect. Regular schedule not an essential function. Further, the appeals court determined that the employee discharged her summary-judgment duty by coming forward with evidence from which a reasonable jury could find that a strict work-hours regimen was not an essential function of her job. The district court acknowledged that the employee never missed “any actual deadline” during the period at issue. Therefore, the employee presented sufficient evidence for a reasonable jury to find in her favor on all four elements of her accommodation claim. Retaliation claims. The D.C. Circuit also reversed the district court’s grant of summary judgment on the employee’s claim that the employer’s revoking her permission to work late was in retaliation for requesting accommodations. The court determined that the employee came forward with sufficient evidence from which a jury could reasonably infer that her supervisors banned her from working after 6:00 p.m. in retaliation for requesting accommodations. The district court’s entry of summary judgment rested on the erroneous premise that the employee, as a matter of law, “could not have been reasonably accommodated.” Because that ruling was based on a flawed predicate holding that the employee’s request for maxiflex schedule was legally foreclosed, that rationale failed here as well.
By Ronald Miller, J.D.