762 F.3d 24 (D.C. Cir. 2014), 12-5374, Ward v. McDonald

Docket Nº:12-5374
Citation:762 F.3d 24
Opinion Judge:Karen Lecraft Henderson, Circuit Judge
Attorney: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.
Judge Panel:Before: HENDERSON and MILLETT, Circuit Judges, and RANDOLPH, Senior Circuit Judge. OPINION filed by Circuit Judge HENDERSON. Dissenting opinion filed by Circuit Judge MILLETT. Millett, Circuit Judge, dissenting:
Case Date:August 12, 2014
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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762 F.3d 24 (D.C. Cir. 2014)




No. 12-5374

United States Court of Appeals, District of Columbia Circuit

August 12, 2014

Argued: April 17, 2014

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[Copyrighted Material Omitted]

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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 filed by Circuit Judge HENDERSON. Dissenting opinion filed by Circuit Judge MILLETT.


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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

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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, 303 U.S.App.D.C. 211 (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).

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, 392 U.S.App.D.C. 195 (D.C. Cir. 2010); Woodruff v. Peters, 482 F.3d 521, 527, 375 U.S.App.D.C. 429 (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, 306 U.S.App.D.C. 217 (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 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.

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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 " 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 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

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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 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...

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