959 F.2d 1053 (D.C. Cir. 1992), 90-5300, Langon v. Department of Health and Human Services

Docket Nº:90-5300, 90-5303.
Citation:959 F.2d 1053
Party Name:Patricia A. LANGON, Appellant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Appellee.
Case Date:March 31, 1992
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1053

959 F.2d 1053 (D.C. Cir. 1992)

Patricia A. LANGON, Appellant,

v.

DEPARTMENT OF HEALTH AND HUMAN SERVICES, Appellee.

Nos. 90-5300, 90-5303.

United States Court of Appeals, District of Columbia Circuit.

March 31, 1992

Argued Jan. 14, 1992.

Page 1054

Appeal from the United States District Court for the District of Columbia (Civil Action Nos. 86-2152 & 85-2376).

Tracy Sivitz, with whom Amy E. Wind and Joseph M. Sellers, Washington, D.C., were on the brief, for appellant.

Richard N. Reback, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee. Michael J. Ryan, Asst. U.S. Atty., Washington, D.C., also entered an appearance, for appellee.

Before: BUCKLEY, HENDERSON and RANDOLPH, Circuit Judges.

Opinion for the court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

This distressing case comes to us on appeal from the district court's order granting summary judgment for the Department of Health and Human Services (HHS) against its former employee, Patricia A. Langon, on her claims that HHS violated the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 790-794d, by failing to accommodate her handicap, by refusing to promote her and by firing her. Our review discloses genuine disputes over material facts such that summary judgment should not have been entered on the accommodation claim. We therefore reverse in part and remand.

I

Ms. Langon has for many years suffered from multiple sclerosis, a degenerative neurological disorder. Under the auspices of its affirmative action program for handicapped individuals, HHS's predecessor hired Ms. Langon as a computer programmer in December 1979. By all accounts, her performance during the first twenty-one months proved satisfactory. When she then began experiencing increased fatigue and weakness, common symptoms of multiple sclerosis, she tried several means to cope: coming in and staying late when she was tired in the morning, moving near her sister so that her sister could drive her to work, and taking leave without pay in order to recuperate. Her erratic work schedule and her extensive absences without permission caused disruption at HHS, but the agency tolerated the situation out of consideration, the record fairly reflects, for her condition.

By May 1981, Ms. Langon had decided to seek HHS's direct assistance. It was at this point she asked for better ventilation, a new telephone chime, and less machine noise, and then, six weeks later, followed these proposals with a more demanding request--permission to work at home. Her frequent attacks of weakness and fatigue, she said, prevented her from commuting to work and the commuting itself contributed to her weakened condition. She supported her request with a letter from Dr. Harrison,,

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her treating physician. He attested to her symptoms; stated that these symptoms impair her physical energy, but not her mental faculties; and suggested that an "option for this patient that must be considered is for her to work a significant amount of time at home."

HHS made most of the adjustments Ms. Langon suggested. She received better ventilation and a quieter work station. The agency also offered her a change in working hours to make her commuting easier, part-time work (which she accepted) and rest periods during the workday. As to her other request, her supervisor informed her--incorrectly it turned out--"that unfortunately this Department does not have any policy or provisions for employees to work at their home[s]."

Ms. Langon then sent a memorandum to the Director of Personnel in the Office of the Secretary, describing in considerable detail her current state, how the tasks of "dressing, walking, driving, etc. to get to work" had exacerbated her health problems, why she needed to work full time in order to pay her rent and survive, how working at home would enable her to overcome her handicap and perform satisfactorily, and why her job was of the sort that could be performed at her residence. In an internal memorandum on August 10, 1981, the Personnel Director advised one of Ms. Langon's superiors that a "number of Federal agencies, including our own, have in the past and are currently allowing certain severely disabled employees to work at home," that under applicable regulations agencies must make a "reasonable accommodation to the known" handicaps of employees, and that in some agencies working at home "has been interpreted as a reasonable accommodation." (The memorandum mentioned a "draft HHS Instruction concerning Work at Home"; this apparently referred to the draft of what became HHS Instruction 300-2, issued October 14, 1981, authorizing "[s]everely handicapped persons for whom it would be difficult to commute to the work site" to work at home.) The Personnel Director concluded that in Ms. Langon's case he did not have sufficient information to determine whether her symptoms were severe enough to preclude commuting. His assistant had tried to contact Dr. Harrison, but he was "out of the country until August 10." The Personnel Director reported that he had informed Ms. Langon of the need for "additional information ... before a final decision can be made but that she should continue her request." So far as the record shows, Ms. Langon was not specifically instructed about what type of "additional information" she should supply.

In an apparent response to the request for more information, Dr. Harrison composed another letter on behalf of Ms. Langon in November 1981, this one far more emphatic and alarming than the first. Her disease, he wrote, was "of a very serious nature and could cause the total mental and physical incapacitation of Miss Langon if she is not henceforth handled with care." While he thought her computer programmer job "was excellent for her," in his opinion "the patient must be allowed to do this job full time in her home most of the week, or the daily commuting to the job will rapidly and severely threaten her health." Dr. Harrison added that if there were any questions, the recipient of the letter should not hesitate to call him.

Ms. Langon submitted this letter in support of her continuing request to work at home, but there is nothing in the record to indicate whether HHS took Dr. Harrison up on his offer to answer any inquiries. What next appears is a February 3, 1982, memorandum to Ms. Langon from the head of her division formally rejecting her plea to work at home, this time on the ground--not that more information was needed--but that her job as a computer programmer "does not lend itself to work at home" because it "requires a great deal of exactness," and because her assignments "usually have specified short deadlines," and "most often require face-to-face contact with report requestors."

A few weeks earlier, HHS had formally denied Ms. Langon's longstanding request for a grade increase, a request she first made shortly after joining the agency in 1979. Though most of her computer programming

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colleagues were GS-12s, HHS hired Ms. Langon as a GS-11. At the time, her superiors did not think her experience sufficiently demonstrated that she could perform at a GS-12 level. In denying her request for promotion in January 1982, HHS explained that she had yet to perform up to the standards of a GS-12.

After January 1982, Ms. Langon failed to complete any of the reports assigned to her. In March she filed a complaint with HHS claiming that the agency had discriminated...

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