Robin Shea’s latest blog entry, which can be found here. Discusses some of the things people say about HR, including: “HR protect the company’s interests, not yours;” “if you go to HR, HR reports the complaint back to the manager and then you are labeled a malcontent;” “I have yet to see a human resource office show any compassion or follow up on anything;” “Typically the director of HR is lazy and incompetent;” “HR doesn’t give a hoot about the employees;” and “if I were having a problem at work, the last place I would go is HR.” Of course, being in practice as long as I have been, I have a couple of my own that I have heard: “HR is mean, nasty and vindictive;” “HR people think they are lawyers when they are not;” “HR thinks it knows the law better than lawyers;” and “HR are just hatchet folks.”

I don’t think the question of whether employees can trust human resources is the right question. Rather, the question should be whether employees can trust human resources to do the right thing? It is a completely different question. That is, as Robin points out in her blog entry, HR works for the company and not for the employees. Of course, that means HR is representing the company’s interest. However, that doesn’t mean that representing the company’s interest involves not doing the right thing, which can mean advocating that an employee’s request be dealt with the way it should be; a point Robin makes at the end of her blog entry referenced above. It is also a key point of this week’s blog entry as well.

Today’s case is such a case where the HR person did the right thing, and as a result, was specifically lauded many times in an opinion for doing so. Our case is Van Drasek v. Burwell. The case is also useful for discussing the timing of accommodation requests and for seeing the difference in causation between the ADA and the Rehabilitation Act. As is typical, I have divided the blog entry into categories: facts; more facts and HR does the right thing; court’s reasoning on failure to accommodate; court’s reasoning on intentional discrimination and retaliation; and takeaways. The reader is free to focus on any or all of the categories.

I
Facts:

Plaintiff was diagnosed with a type of bipolar disorder that produces symptoms such as depression and anxiety that substantially limits many major life activities including sleeping, thinking, concentrating, processing information, impulse control, and cognitive abilities. Even so, plaintiff enjoyed a long and successful career as a chemist with accomplishments in the field, including a graduate degree in geochemistry, six publications, as well as awards and commendations for her performance. She also worked for eight years at the United States Department of Agriculture where she consistently received fully successful performance ratings. She left her post at the United States Department of Agriculture only because the particular position she held was capped at a lower salary and performance level, which meant that she had no room for promotion. In April 2008, she began working as a chemist for the FDA. She did not inform anyone at the FDA of her bipolar condition diagnosis nor did she request any accommodations at the time she began work there. By August 2009, she was having difficulty at work and sought private medical attention. She did not share with anyone at the FDA that she was seeking and receiving medical attention for her previously diagnosed bipolar disorder. In April 2010, her immediate supervisor issued a performance improvement plan, a document advising her that her on-the-job performance was unacceptable and she had 75 day to improve her work. The plan stated that her performance failed to meet minimally acceptable levels in that she failed to demonstrate technical knowledge and competency in her field and that she failed in program and project management and performance given repeated deficiencies in her analysis. It also said that the plaintiff did not seek guidance or was not capable recognizing when she needed assistance and repeatedly failed to meet deadlines. Finally, the plan described what she needed to do in order to bring her performance up to minimally successful standards and gave her 75 day to improve. It also noted that failure to improve could lead to demotion or removal. More than 180 days after receiving the document, the plaintiff contacted her treating physician and asked her to fill out a family medical leave act form, which the physician did. However, the plaintiff did not give the form to her supervisor or anyone else at the FDA prior to being contacted by her supervisor once again regarding her performance. Six months after the plan was issued, her supervisor informed the plaintiff that she still had not improved and that she was recommending her removal. Four days later, the plaintiff notified her supervisor that she had a disability, that she was in the process of getting her FMLA paperwork together, and that she was requesting accommodations. She followed up a week later by submitting the FMLA paperwork and then hired an attorney to write a letter asking that issues involving the proposed removal and the request for accommodation be addressed. Over the next few weeks, plaintiff’s attorney contacted the FDA’s reasonable accommodation specialist to ascertain the agency’s process for requesting accommodations. She thereafter submitted a formal written request for accommodation, including a letter from her physician detailing the symptoms of her disability and its effect on her job performance. That letter noted her disability and said when the anxiety becomes extreme, it could be exceedingly difficult for the plaintiff to hear and understand instructions, to remember instructions, to comprehend instructions, and to follow instructions. The letter also recommended three specific accommodations including: written instructions for assignment; additional time to complete tasks; and reassignment to a different position. In December, the plaintiff submitted a formal written response to her proposed removal in which she sought to explain why a current work environment was causing her anxiety thereby aggravating her symptoms. In particular, she claimed that another chemist in her workgroup had created an intimidating and dismaying environment by yelling and cursing at the plaintiff, responding in a very sarcastic fashion to her questions, and providing unwarranted criticism of her work. She further alleged that she and others had complained about that person’s behavior to other people in the agency but that no one ever took action.

II
More Facts: HR Does the Right Thing

Once the plaintiff submitted a request for accommodation, Saundra Anderson, the FDA’s reasonable accommodation specialist, informed the plaintiff’s supervisor that she had an obligation to notify the plaintiff of the agency’s eventual decision and a duty to engage in an interactive dialogue with the plaintiff regarding the requested accommodation. When the plaintiff’s supervisor expressed hesitation saying that the FDA did not need to accommodate because her proposed removal happened before the agency was even aware of her disability and before the accommodation request was made, the reasonable accommodation specialist responded by explaining an employee can request accommodations at any time and the agency must respond. After the FDA assigned an agency physician to evaluate the case, that physician wound up agreeing written instructions and extra time were appropriate accommodations, but did not recommend reassignment saying insufficient information existed to act on that recommendation. Neither that physician nor the plaintiff’s supervisor reached out to the plaintiff or the plaintiff’s physician to seek additional information about the reassignment request. The FDA’s physician report was forwarded to the plaintiff’s supervisor in January 2011 along with the statement from the FDA’s reasonable accommodation specialist saying that the plaintiff’s supervisor was required to respond to the accommodation request within 15 days. Even so, plaintiff’s supervisor failed to meet that deadline, and some 75 days later informed the reasonable accommodation specialist that she would not be accommodating the plaintiff. When the reasonable accommodation specialist suggested that reassignment should be offered to the plaintiff, plaintiff’s supervisor allegedly made disparaging remarks to two other FDA employees about how the reasonable accommodation specialist didn’t get it. In addition, when the reasonable accommodation specialist and others in the FDA’s human resource department told plaintiff’s supervisor that reassignment paperwork for the plaintiff was being processed, plaintiff’s supervisor wrote email to other FDA employees stating she needed to go full steam ahead and get the removal decision issued before the reasonable accommodation specialist did too much work, and that she didn’t think she could prevent the reasonable accommodation specialist from reassigning the plaintiff unless she removed the plaintiff first. On April 18 of 2011, the plaintiff’s supervisor formally denied the plaintiff request for accommodation and discharged her from federal service effective April 22, 2011 after stating that there was no position in the office or division to which she could be reassigned. Since the plaintiff was a federal employee, the ADA was not involved, and she brought suit under the Rehabilitation Act alleging failure to accommodate a disability; intentional discrimination because of her disabilities; and retaliation for requesting or seeking accommodations.

III
Court’s Reasoning on Failure to Accommodate or The reasonable accommodation specialist for President?

In denying the motion for summary judgment by both the plaintiff and the defendant on the failure to accommodate claim, the court reasoned as followed:

1. It is absolutely true that the plaintiff requested accommodations literally on the eve of her proposed dismissal. However, a request for accommodation of a disability is timely if the employer is in a position to respond to the request. So, while it is true that the plaintiff did not disclose her disability or request accommodations until months after her supervisor had warned her about her job performance and the consequences of failing to improve, nevertheless, the plaintiff did disclose her disability and sought various work-related accommodation before she was removed from her position.

2. EEOC guidance notes that the employer must make reasonable accommodations to enable the employee to succeed going forward and also notes that there is no deadline by which an employee must request an accommodation.

3. Office of Personnel Management regulations further require that an employee for whom removal has been proposed has the right to provide a written response, including providing any medical records, which the employer must consider before issuing a final decision on the proposed employment action. Further, Office of Personnel Management regulations specifically instruct that the agency allow an employee wishing to raise a medical condition that may have contributed to his or her unacceptable performance to furnish medical documentation. Also, while the preference is that employees submit such medical documentation before a proposed removal, the regulations make clear that the agency must still consider the documentation if it is not submitted until after the proposed removal has been suggested. Further, the regulations say that the agency is deemed to be aware of the reasonable accommodation duty where the employee offers medical documentation after the agency has proposed a reduction in grade or removal.

4. In short, where an employer still in a position to respond to request for accommodations because the requester is still employed, such request is timely and the employer has to consider it.

5. If you are the reasonable accommodation specialist, how would you feel if you read a court opinion that said this:

“Here, Von Drasek requested accommodation prior to being removed, and as it turned out, the FDA’s human resources specialist also specifically noted that the agency did, in fact, have a duty to attempt to honor this tardy request. This court finds that the specialist was right: Von Drasek’s request was timely, and thus, the FDA’s contention that it had no obligation to consider Von Drasek’s request for accommodations under the circumstances presented here is unavailing.”

Congratulations to Saundra Anderson. She gets what it means to be in HR. it is not whether the employees trust you in HR, but whether you can be trusted to do the right thing when the law demands such action. That is, she knew the statute and its implementing regulations and insisted that they be followed. Further, she didn’t back down when personnel did not want to do the right thing.

6. A question of fact existed as to whether the plaintiff could perform the essential functions of the employment position to which she sought reassignment to since she had a great track record prior to taking on the FDA position and she had a medical opinion stating that the particular environment at the FDA created an extremely problematic situation in light of her disability.

IV
Court’s reasoning on Intentional Discrimination and Retaliation

1. The intentional discrimination claim fails because under the Rehabilitation Act the applicable causation analysis is but for causation. That is, the Rehabilitation Act demands such a conclusion because the operative term is, “solely by reason of her or his disability.” Accordingly, motivating factor is not a proper consideration in Rehabilitation Act claims.

A. The ADA standard of causation is a lower standard than under the Rehabilitation Act because the word “solely,” does not appear in that Act when describing causation (doing the math: In title I and title III it is “on the basis of disability,” while in title II, it is, “by reason of disability.”)

B. A discrimination OR a retaliation claim brought under the ADA can rest on a motivating factor due to the difference in causation standards.

2. While it is true that the record clearly establishes that plaintiff’s supervisor personally disliked the plaintiff and wanted to have her removed, it also confirmed that the plaintiff’s supervisor had determined to set out on the path of firing her long before the plaintiff had revealed a disability to the FDA. Accordingly, it is impossible to say that the termination was solely by reason of disability and no reasonable jury could find otherwise.

3. The record is quite clear that the plaintiff was removed because of her past job performance and the FDA’s belief that she would not be able to satisfy the job requirements in the future and not because she requested an accommodation. Therefore, the retaliation claim for requesting an accommodation fails.

V
Takeaways:

1. It isn’t a matter of whether employees trust HR. They shouldn’t. HR works for the company. However, employees and the company have a right to expect that HR will do the right thing when it comes to ensuring that the company carries out labor and employment laws in the manner demanded by the applicable laws and regulations. That includes stepping up to the plate even when faced with resistance from personnel. It certainly would not have been an easy thing for the reasonable accommodation specialist to have acted in the way that she did, and you have to take your hat off to her. One wonders why legal counsel didn’t get involved at the point where there was clearly a dispute between the reasonable accommodation specialist and the plaintiff’s supervisor. Regardless, the reasonable accommodation technical specialist did the right thing.

2. It is pretty clear now that causation under the ADA is a lower standard than causation under the Rehabilitation Act. Nevertheless, especially when it comes to title III matters, it still may be useful to allege a Rehabilitation Act claim so as to open up the possibility of getting damages providing a showing of deliberate indifference can be made (admittedly a high standard, which we discussed here in this blog entry, but at least the possibility of damages exists, which is not allowed under title III of the ADA).

3. If you are an employer and have recommended termination of an employee, you still have the obligation to engage in the interactive process discussing reasonable accommodations regardless of when the employee makes the reasonable accommodation request. Also, be careful about rushing the employee out the door to avoid the strictures of this case as that may be indicative of not sufficiently engaging in the interactive process.

4. There is an interesting thing going on about what solely by reason means with respect to Rehabilitation Act claims. Does it mean “but for,” causation? Yes, it probably does, but that doesn’t answer the question because you could have more than one but for cause (see this case for example discussing this point, which I discussed in this blog entry). You see this all the time in tort law where if there is more than one but for cause, courts will go to a substantial factor test. On the other hand, the Rehabilitation Act does specifically say that causation must be, “solely by reason of disability.” Accordingly, an argument exists that Rehabilitation Act claims are something even beyond “but for,” causation and are “sole cause,” claims.

5. This court said that discrimination or a retaliation claim can be brought under the ADA using a motivating factor analysis with respect to causation. We have discussed this one before. I completely agree that with respect to a straight disability discrimination claim, motivating factor is in play, but it is a much harder case to make that it is in play with respect to retaliation claims. See this blog entry of mine.

6. On the plaintiff’s side, there can be real advantages to hiring an attorney early as the plaintiff did in this case even if that probably means paying the attorney hourly for that work.

7. When it comes to reassignment as a reasonable accommodation, the question is whether the person can do the job that she or he would be reassigned to with or without reasonable accommodations and not whether the person could do the job that he or she currently holds with or without reasonable accommodations (if things have gotten to this point, the answer to the latter question is obviously that they can’t).

8. When HR people step up and do the right thing, employers should reward them for doing so.

9 Responses to Can Employees Trust Human Resources? Maybe That’s Not the Right Question? Timing of Reasonable Accommodation Request and Causation under the ADA and the Rehabilitation Act Are Not the Same

With regard to No. 3: If an employer has recommended “counseling” to a person with a qualified disability, and the person refused the employer’s program of on-site counseling or other employer-provided support as “paid snitches” for the employer, can this be considered a failure to exhaust all remedies–even if the employee’s condition does not involve mental health or emotional issues other than potential loss of job?

Thanks for jumping in Barbara. Always love when someone comments on the post. With respect to your question, I’m not entirely sure I am following the point. If I am following the point, title I of the ADA does require administrative exhaustion, but that only refers to filing a claim with the EEOC or the State’s equivalent agency within the requisite time frame. It doesn’t refer to exhausting an employer’s internal process. That said, if an employer is smart, they will have an ADA grievance process. That kind of process enables claim to be fully vented and resolved long before it gets to the EEOC or into litigation. The point I was trying to make in this particular case was so long as the person is still employed by the employer, the employer has the obligation to consider reasonable accommodation requests when that request comes into them regardless of where that request is made in the timeframe of terminating an individual. Does this help? If not, feel free to clarify, and we will endeavor to answer the question.

Okay, let me try this one again, with more specifics. There are some disabilities that are “easier” to accommodate than others, if only because the person in HR knows immediately what causes the problem. The EE is blind and requests accommodations under the ADA. He would like a separate office instead of a desk in the “cube farm” because he relies on TTV, which annoys others. No real problem there. The EE with hearing problems has requested that the meetings in his group be accompanied by slides or handouts with a summary of the high points discussed, as the manager has a mustache which interferes with his ability to lip-read. Again, no problem. But until recently, when the EE’s disability involved something such as clinical depression, or accommodations for stress, the HR person would scan down the list of available accommodations and lamely suggest something like an amanuensis (–’cause if it’s in Latin, it must be effective!) or the ergonomic chair. At which point the EE would leave even more depressed and/or stressed out than when s/he arrived there.

Recently, a cottage industry of sorts has developed around the concept of Employee Assistance Programs. Private firms provide clinical social workers and/or psychologists to these ERs on an as-needed basis. The services can be on-site or off–as the corporation requests. Sometimes these services are provided “FREE” by the ER; other times they are part of the EE Wellness Program.

So, three issues:
(1) If a hypothetical EE who has issues related to depression/stress but is otherwise a “qualified individual” under the Act requests accommodation under the ADA/sect. 501, and HR says: Well, the only accommodation we have for that is the Employee Assistance Program, has the ER met the requirement? I would guess not.
(2) If a hypothetical EE who has issues related to depression/stress but is otherwise a “qualified individual” under the Act requests accommodation, can HR require the EE to exhaust the counseling program under the Employee Assistance Program before providing anything more? I would guess that this is a bit less certain. The ADA permits ERs to request medical information or order a medical examination when it is job-related and consistent with business necessity. But what if the employee appears to have no problem performing essential job functions, has no history of conduct or other disciplinary issues, and does not pose a direct threat?

Thanks for jumping in again! Always love it when people comment on the blog entries. Of course, what follows is not legal advice because that would require an attorney client relationship and specific analysis of the situation, but some general thoughts do follow. First, with respect to question one, I see two problems. The first problem is that using an employee assistance program as a substitute for the interactive process stigmatizes persons with disabilities in a negative way. To my mind, employee assistance programs have a completely different purpose than the interactive process. The employee assistance programs are designed to deal with acute mental health issues, substance abuse, alcohol abuse, addiction, etc. The interactive process is designed to get a person with a disability to the same starting line after reviewing the facts. The second problem I see is that referring a person to an employee assistance program could conceivably be a medical exam and therefore have to deal with the restrictions that such a referral must be based upon business necessity and must be job-related. For discussion of business necessity and job-related, see this blog entry. With respect to the second question, that really bounces back to the first question. Also, assuming the person with a disability is otherwise qualified and is making a reasonable accommodation request, they undoubtedly are going to be using their own healthcare provider to furnish the necessary information. That information then leads to the interactive process. The EEOC has made it quite clear that excessive documentation of a disability is to be discouraged and is not called for. Also, as mentioned before, the purposes of the interactive process and the employee assistance program are very different. So, everything depends upon the facts and an individual analysis, but as a general proposition, an employer would be on very dangerous ground to use an employee assistance program as a substitute for the interactive process or refer people automatically to the program when reasonable accommodation requests are made. Finally, referring a person with a disability automatically to an employee assistance program upon a request for reasonable accommodation might also arguably be construed as retaliation for making a reasonable accommodation request as such a practice would most certainly discourage people from making reasonable accommodation requests as a result of the stigmatization (see this blog entry for example).

Of course, as mentioned above, this is not a substitute for legal advice.

http://www.courts.ca.gov/opinions/documents/C073677.PDF

The above case is an interesting counterpoint to the case discussed in the main blog entry. In this case, the third Appellate District of the State of California held that anxiety and stress related to working under a particular person is not a disability under their Fair Employment and Housing Act. There is an important distinction between the two cases. In the California case, the anxiety was directly related to working for her supervisor. Whereas, in the case discussed in the main blog entry, the anxiety was the aggravation of an already pre-existing condition. Also, the California case points out that the definition of disability under California law is even broader than the definition under the ADA, even as amended. Perhaps, the facts are just not fleshed out enough. Everyone suffers from anxiety every now and then, but generalized anxiety disorder is another kettle of fish as is the disability discussed in the main blog entry. So, the combination of the two cases leaves you with this: garden-variety anxiety may or may not be protected under ADA (garden-variety anxiety could be well something that does not substantially limit a major life activity even under the ADA as amended), and is not under FEHA, says this case, generalized anxiety disorder would be protected under the ADA as would anxiety that is the result of an aggravation of a pre-existing condition.

So let’s say that a person with PTSD, generalized anxiety disorder, panic disorder, and asthma claims that their working relationship with their manager aggravates those conditions. The attending physician backs this claim up. Is the employer then obligated to reassign the employee to another area with a different manager as a reasonable accommodation?

Thanks for posting!

As with many things in the law, the answer is that it depends. The question I have is whether the employee can do the essential functions of the job with or without reasonable accommodations? Also, has the interactive process been initiated and fully explored? Finally, as we have seen in our blog entries, it is unclear as to whether a mandatory reassignment obligation exists for the employer where an employee cannot do the essential functions of the job, though that is certainly good preventive law.

If the employee can perform the essential duties of the job (or similar job), just not in that particular office environment, then would the employer have an obligation to reassign the employee, assuming there is a vacant position elsewhere within the agency? The interactive process has been initiated and the employer is refusing any accommodation other than extended leave (which will be up at the end of November).

The legal points here are interesting, but the dynamics of the job seem even more so. We have a supervisor who has a rude and sarcastic employee but doesn’t think this is a problem. Same supervisor isn’t interested in HR’s assessment and is clearly looking to avoid accommodation and get rid of the plaintiff rather than try to find a way to take advantage of the plaintiff’s apparent skills. Personality is also the main issue in the California case you mention. Personalities are where the rubber meets the road in employment matters, and unfortunately there aren’t enough rules and policies in the world to turn a jerk into a decent human being. That said, every organization should have as one of the stated jobs of any supervisor to find the best way to use the talents of the employees he or she supervises. When an employee is fired the supervisor has usually failed, and by treating failure in this way as a negative for performance evaluations the jerk supervisor can at least be encouraged to try a little harder.

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