On September 15, 2021, the Tenth Circuit Court of Appeals upheld a district court’s grant of summary judgment in favor of an employer. In Brown v. Austin, the Tenth Circuit found that an employee’s telework, weekend work, and supervisor change request were unreasonable under the federal Rehabilitation Act and that the employee had failed to allege a prima facie case of disability discrimination, retaliation, or constructive discharge.
Alfred Brown worked for the Defense Health Agency, an agency of the U.S. Department of Defense, as a healthcare fraud specialist (HCFS) in the Program Integrity Office (PIO) from April 2010 until his resignation in 2014. In this role, he served on a four-person team and was responsible for coordinating with various law-enforcement agencies to investigate fraud in the military healthcare system. Shortly after hire, Brown informed his supervisors that he had “posttraumatic stress disorder and other panic and anxiety disorders related to his military service.” He stated “these conditions affect[ed] his ability to manage stress, concentrate, and communicate, and that stressful environments can aggravate his symptoms and sometimes cause panic attacks.” Within the first two years of Brown’s employment with the agency, he was granted leave under the Family and Medical Leave Act (FMLA) to receive medical treatment for his conditions.
Citing his conditions, Brown requested to work from home “twice a week and work weekends to make up time lost during the week.” Although the agency denied his requests, it permitted him to work from home once a week, eliminated his air travel, provided him noise-cancelling headphones, and reminded employees regarding proper office etiquette and noise levels around workers’ cubicles. The agency further offered to move Brown’s cubicle “to a less-trafficked area, rais[e] the walls on his cubicle, and allow unpaid wellness breaks,” all of which he rejected. On numerous occasions, Brown also requested a transfer to another supervisor’s team, citing strained relationships with supervisors. The agency claimed that it denied Brown’s request because of a lack of available positions on other teams within the PIO.
Months later, the agency placed Brown on paid administrative leave pending an investigation into a scuffle he had with a supervisor. Brown received “a reprimand letter” but was permitted to return to work. Brown’s rocky relationship with his supervisors continued until he resigned, claiming the denial of his transfer requests to another supervisor were driven by ‘“bias and prejudicial motives.’”
Brown filed suit against the agency, alleging that it failed to accommodate his disabilities, subjected him to discrimination and retaliation, and constructively discharged him. The district court granted summary judgment for the agency on all of Brown’s claims, holding there were no triable issues on Brown’s claims that the agency failed to accommodate his mental health disabilities, discriminated against him based on those disabilities, subjected him to retaliation, or constructively discharged him. Brown appealed the grant of summary judgment, “challenging the district court’s rulings that (1) his requests for telework, weekend work, and a supervisor reassignment were not reasonable accommodations;” and (2) he failed to establish a prima facie case of disability discrimination, retaliation, and constructive discharge.
“Plausibly reasonable accommodations”
The parties focused their failure to accommodate arguments on whether Brown’s request to telework twice per week, perform weekend work, and be reassigned to a different supervisor constituted “plausibly reasonable accommodations,” a factor that must be met under the Rehabilitation Act.
The Tenth Circuit agreed with the district court’s ruling that the request to work from home was unreasonable. In so holding, the court determined that Brown’s presence in the office four days per week was an essential function of his job because an HCFS must have complete access to case files, which are located in the office. The court recognized that although photocopies could be made prior to a remote workday, case files could be up ‘“… to [three] feet in thickness’” (brackets in original) and law-enforcement partners, with whom HCFSs work closely, may have questions on files that were not scanned ahead of time. For this reason, the agency’s policies only permitted one remote workday every two weeks, which employees often used for training purposes. After considering Brown’s own belief that he could perform the essential functions of his job from home, evidence of remote work by other employees after his tenure with the agency, and a lack of reference to physical presence in the job description, the court ultimately deferred to the agency’s judgment regarding essential functions.
The Tenth Circuit next considered Brown’s request to work weekends to make up for the time he missed during the week. The court held that Brown’s request to work on the weekends was also unreasonable because an essential function of an HCFS’s job is to collaborate with law-enforcement partners who work a standard Monday through Friday schedule. Further, no supervisors or employees worked on weekends absent urgent matters, so Brown’s weekend work would be conducted without oversight.
Regarding his request for reassignment to a new supervisor, Brown argued the district court improperly assumed that the agency was only required to grant accommodation requests that would enable him to perform the essential functions of his job. Brown argued under the heightened accommodation standard in the Rehabilitation Act, which “applies  when an employee ‘seeks a transfer accommodation for medical care or treatment,’” federal employers must grant an accommodation request even if the employee can perform essential functions without it. (Emphasis in original.) The Tenth Circuit disagreed with Brown and held the heightened standard did not apply, reasoning that (1) Brown had not proven that he could not perform the essential functions of his position; (2) he failed to argue that reassignment would have better allowed him to treat his disabling conditions; and (3) he did not request reassignment based on medical necessity, but rather because of conflicts with his supervisor. Unlike the Seventh Circuit Court of Appeals, which has applied the heightened accommodation standard to “allow disabled employees to ‘lead normal lives,’” the Tenth Circuit declined to adopt a standard that stretched beyond accommodations for medical care. For these reasons, the court held that Brown had not presented evidence of circumstances requiring reassignment.
Disability discrimination claims
The court then turned to Brown’s disability discrimination claims, namely that he was subjected to retaliation, disparate treatment, and constructive discharge. Brown argued that the following actions constituted unlawful retaliation: (1) revocation of his ability to work weekends; (2) denial of his transfer request to another supervisor for filing a discrimination charge; (3) his placement on paid administrative leave and issuance of the reprimand letter; and (4) an email denying his request to change supervisors.
The court held that a “reasonable employee” would not have found any of these actions “materially adverse.” The court noted that Brown never had the privilege to work weekends in the first place, Brown’s request to transfer was based solely on personal preference, the paid administrative leave caused him no harm economically or socially, and nothing in the email would dissuade an employee from filing a complaint or requesting an accommodation.
Disparate treatment and constructive discharge claims
Next, the court turned to Brown’s disparate treatment claims and, relying on the same reasoning for the retaliation claims, held that the denial of his ability to work weekends and the incident where he was placed on paid administrative leave and issued a reprimand letter did not show that Brown was subjected to an adverse action. The court found Brown’s third and final disparate treatment claim did not show that Brown’s employment status was significantly changed and therefore “was not an adverse action.” Brown argued that an adverse action occurred when his privilege for taking emergency leave without permission was revoked and his pay could have been revoked by a letter he was sent reminding him to follow office policy regarding advance requests for leave. The court disagreed, noting the language in the letter permitting Brown to take leave without permission in the case of emergency and the fact that Brown did not actually lose any pay.
Finally, the court upheld the district court’s finding that there was not a triable issue in Brown’s constructive discharge claim. The court held that Brown’s subjective belief that he had no choice but to resign, standing alone, was held insufficient to survive summary judgment.
This case limited the heightened accommodation standard under the Rehabilitation Act and clarified that it does not apply to requests for accommodation that do not relate to the employee’s medical care or treatment. However, employers may still want to carefully consider each and every employee’s accommodation request and follow all policies and procedures in place. In doing so, employers may want to consider whether a request to telework would either negatively impact the employee’s ability to work with other employees, or permit the employee to work unsupervised. Employers may also want to parse out the underlying reasons for transfer requests, to ascertain if they are based on an underlying medical reason, or nonmedical personal preferences.