Kvorjak v. State of Maine Dept of Labor

• Citation: 259 F.3d 48
• Decision Date: 07 May 2001
• Docket Number: No. 00-2385,00-2385
• Parties: (1st Cir. 2001) BRIAN KVORJAK, Plaintiff, Appellant, v. STATE OF MAINE, STATE OF MAINE DEPARTMENT OF LABOR, AND VALERIE R. LANDRY, COMMISSIONER OF THE STATE OF MAINE DEPARTMENT OF LABOR, Defendants, Appellees. Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 48

259 F.3d 48 (1st Cir. 2001)

BRIAN KVORJAK, Plaintiff, Appellant, v. STATE OF MAINE, STATE OF MAINE DEPARTMENT OF LABOR, AND VALERIE R. LANDRY, COMMISSIONER OF THE STATE OF MAINE DEPARTMENT OF LABOR, Defendants, Appellees.

No. 00-2385

United States Court of Appeals For the First Circuit

Heard May 7, 2001

Decided August 9, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. George Z. Singal, U.S. District Judge] [Copyrighted Material Omitted]

Daniel W. Bates for appellant.

Christopher C. Taub, Assistant Attorney General, with whom G. Steven Rowe, Attorney General, and Susan P. Herman, Assistant Attorney General, were on brief for appellees.

Before Lynch, Circuit Judge, Coffin, Senior Circuit Judge, and Schwarzer, Senior District Judge.^*

COFFIN, Senior Circuit Judge.

Appellant Brian Kvorjak claims that his former employer, the Maine Department of Labor, wrongfully failed to accommodate his disability when it refused to allow him to work at home after his office closed and his position was relocated to a distant facility. The district court granted summary judgment for the defendants on his federal and state claims,¹ concluding that he had failed to offer evidence sufficient to demonstrate that he could accomplish "essential" aspects of his job at home. See 42 U.S.C. § 12111(8). After a close review of the record and case law, we affirm.

I. Factual Background ²

Appellant is partially paralyzed as a result of spina bifida, a condition he has had since birth. The condition limits his ability to walk, causes problems with his bowels and bladder, and at times triggers pain when he sits, stands or lies down. Despite these difficulties, appellant successfully worked for various state agencies in Maine for twenty-two years, the last seven and one-half as a claims adjudicator for the Department of Labor's Division of Unemployment Field Services (the "Division"). In that most recent position, he was assigned to an office in Rockland, Maine, a ten-minute commute from his home.

In the mid-1990s, the Division decided to cut expenses by closing fifteen field offices, including the Rockland office, and shifting services to three call centers in other parts of the state. To assist with the transfer, the Division sent out two surveys asking employees if they would consider relocating to a call center. In both surveys, appellant indicated that he would be able to work in a call center and listed Bangor as his primary choice.

Before the transfer in 1997, however, appellant drove the ninety-minute commute from his home to Bangor on two consecutive days. The lengthy drive resulted in substantial pain. Realizing that he could not commute three hours every day, he applied for a disability pension and asked that he be permitted to use his accumulated sick time until his pension request was processed. The State denied his request to use sick time, and appellant contacted the Disability Rights Center (the "Center").

After consultation with the Center, appellant in May 1997 requested the accommodation of working at home on a full-time, permanent basis.³ He supplemented his request with a letter from his physician stating that the commute to Bangor every day would have a detrimental impact on his health. The doctor also stated that "any effort that can be made to allow him to work locally would be highly appropriate and medically indicated."

The Division rejected appellant's request, stating that the Department of Labor had checked with the New England Business and Technical Assistance Center and the Equal Employment Opportunity Commission and had "concluded that commuting to the job is not a covered activity under [the] ADA." It noted that it had received other requests from Division employees to work at home because of the office consolidation, and had denied all of them. The State, however, did offer to pay relocation costs if appellant moved closer to a call center, a benefit provided to all re-assigned employees, and also offered to pay for temporary housing.⁴ Appellant declined to move, and he was laid off on June 18, 1997. That same day, Kathleen Dunford, director of the Office of Human Resources for the Department, offered in a telephone conversation to assist him in finding another local job.

In October 1997, the State notified appellant of a job opening in Bangor for a claims adjudicator -- the same position he had left four months earlier. Appellant expressed interest, but again requested the accommodation of working at home. The request again was denied. Appellant subsequently filed complaints with the MHRC challenging both the original layoff and the later failure to re-hire him. The State continued to maintain that it had no obligation to ameliorate appellant's commuting difficulties; in its view, he was no different from non-disabled employees who sought the same accommodation of working at home because of the inconvenience of relocating. See 5 M.R.S.A. § 4573-A ("This subchapter does not prohibit an employer from discharging . . . an individual with physical or mental disability . . . if the individual, because of the physical or mental disability, is unable to . . . be at, remain at or go to or from the place where the duties of employment are to be performed."). The MHRC investigator, however, without determining whether appellant could perform the essential functions of the job at home (relying on a supervisor's statement that the job could be restructured if the law required), found reasonable grounds to believe that appellant had been subjected to unlawful disability discrimination.

Appellant filed his lawsuit in June 1999, asserting that the State's rejection of his request to work at home violated federal and state disability laws. In a motion for summary judgment, the State argued that it was not obliged to accommodate appellant because his request to work at home stemmed not from his disability but from a personal preference against moving, and it emphasized that appellant could not in any event perform the essential functions of the claims adjudicator position at home. The district court accepted the magistrate judge's recommendation that summary judgment be granted for defendants, and this appeal followed. We review the district court's decision de novo, assessing the facts in the light most favorable to appellant, the nonmoving party. Reed v. LePage Bakeries, Inc., 244 F.3d 254, 257 (lst Cir. 2001).

II. The Interactive Process

Before delving into the substance of the accommodation issue, we address appellant's contention that the State violated the ADA by failing to utilize an informal, interactive process to make an individualized assessment of his needs and abilities. The statute's implementing regulations state that it "may" be necessary for an employer to initiate a dialogue with an employee in order to determine an appropriate accommodation. See 29 C.F.R. § 1630.2(o)(3). Courts have construed the regulation as imposing various levels of obligation. See Barnett v. United States, 228 F.3d 1105, 1111-14 (9th Cir. 2000) (en banc) (citing cases), petition for cert. granted in part sub nom US Airways v. Barnett, 69 U.S.L.W. 3665 (U.S. Apr. 16, 2001) (No. 00-1250).⁵ Even in the most rigorous version, however, such as the Ninth Circuit's "mandatory obligation" in all cases, see Humphrey v. Mem. Hosps. Ass'n, 239 F.3d 1128, 1137 (9th Cir. 2001), petition for cert. filed, 69 U.S.L.W. 3792 (U.S. June 13, 2001) (No. 00-1860), liability nonetheless depends on a finding that, had a good faith interactive process occurred, the parties could have found a reasonable accommodation that would enable the disabled person to perform the job's essential functions, see Humphrey, 239 F.3d at 1139; Barnett, 228 F.3d at 1115-16.

This court has not taken so categorical a stand on the interactive process, preferring instead to resolve the issue on a case-by-case basis. See Phelps v. Optima Health, Inc., 251 F.3d 21, 27 (lst Cir. 2001); Ward v. Mass. Health Research Inst., Inc., 209 F.3d 29, 33 n.4 (lst Cir. 2000); Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 515 (lst Cir. 1996). Although we have noted that there may be situations in which failure to engage in the process "would constitute a failure to provide reasonable accommodation that amounts to a violation of the ADA," Jacques, 96 F.3d at 515; see also Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 648 n.12 (lst Cir. 2000) (reversing summary judgment for employer and granting judgment for employee where company had "simply rejected the request for the accommodation without further discussion," but not deciding the interactive process issue), we also consider such an omission "of no moment" if the record forecloses a finding that the plaintiff could perform the duties of the job, with or without reasonable accommodation, see Soto-Ocasio v. Fed. Exp. Corp., 150 F.3d 14, 19 (lst Cir. 1998).

This being the status of the law, appellant has failed to demonstrate an actionable failure to engage in interactive communication. As we explain in the following section, the record cannot support a finding that he is able to perform the essential functions of the claims adjudicator position at his home. In addition, we do not view the circumstances here to constitute the extreme failure to engage in meaningful dialogue that appellant attempts to depict. When appellant asked to work at home because of the new commuting distance, the State had no reason to suspect that his disability also posed issues related to office work. He had been performing the claims adjudicator position at the Rockland office with little or no accommodation for more than seven years,⁶ and, indeed, the doctor who submitted a letter of support for his request saw "[no] problem with him engaging in the type of activities he has been doing . . . ."⁷

In a setting of institutional change, with requests to work at home from other employees also seeking...