Today’s blog entry came down to a close call between two cases that were decided last week. In the first case, Robin Shea, of Constangy Brooks, discussed a religious accommodation case, here, which also has significant implications for the disability rights universe. I highly commend her blog entry. I do plan to blog on that case myself. The case that did make the cut for this week is Mullin v. Sec., US Department of Veterans Affairs, here, a published per curiam decision from the 11^th Circuit decided on August 8, 2025. I actually know one of the plaintiff’s lawyers involved in Mullin, but I am not involved in that case at all. He is aware that I was planning on blogging on the case. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning affirming summary judgment on the disability discrimination claim; court’s reasoning affirming summary judgment on the failure to accommodate claim; court’s reasoning reversing summary judgment on the unlawful disclosure claim; court’s reasoning affirming summary judgment on the retaliation and hostile work environment claim; Judge Tjoflat concurring opinion; Judge Jordan concurring and dissenting opinion; and thought/takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts

The facts are quite numerous but can be condensed quite a bit. Plaintiff is a current employee of the Department of Veterans Affairs. In July 2010, she began experiencing respiratory issues at work and believe the building she was in was causing the respiratory problems. That led to a back-and-forth where various accommodations were trotted out and none of them worked. In March of 2012, plaintiff was diagnosed with breast cancer. Her oncologist noted in a FMLA certification form that she required a six month absence at work for surgery, chemotherapy, and potential radiation. A few months after the cancer diagnosis, a steward with the union that plaintiff belonged to sent her an email mentioning that he had heard about her condition from a human resources manager, and he noted that the human resources manager believed that plaintiff’s breathing issues were caused by her tumor not by any problems with the building. Plaintiff was surprised to learn that the union steward knew about her cancer diagnosis, as the only people she had told were close friends and the Veteran Service Center manager.

Shortly after she came back to work, she informed the Department that the issues in the building were worsening her health condition and asked to further minimize the time spent in the building. On January 30, 2013, plaintiff met with a human resources specialist and a union representative where she requested additional accommodations, including working entirely from home or from a location other than the St. Petersburg office. She also asked to meet another employee outside her building to hand off paperwork so she would not have to go inside. The accommodations continued not to work and plaintiff kept insisting on a work from home arrangement. Eventually, three months later, the Department permitted her to work from home, though it required her to meet someone outside the building on Friday mornings to exchange work related papers. It is unclear whether that accommodation continued.

II

Court’s Reasoning Affirming Summary Judgment on the Disability Discrimination Claim

1. While §501 of the Rehabilitation Act, here, follows the rules of the ADA, causation is governed by §794(a), here, where the plaintiff must prove that the adverse employment action was solely by reason of her disability. So, a disability discrimination fails if the employer based the adverse employment action partially on disability and partially on other factors.
2. Plaintiff has not shown that any sick leave was denied even in part due to her disability.

III

Court’s Reasoning Affirming Summary Judgment on the Failure to Accommodate Claim

1. Viewing the record in the light most favorable to the plaintiff, the Department provided reasonable accommodations for plaintiff’s disability and ultimately provided her with the accommodation she desired, which was working from home full-time.
2. Plaintiff cannot fairly cast the period in which she was away from work due to her cancer treatment as an unreasonable delay on the part of the Department. The delay in granting plaintiff the accommodation of full-time work from home was actually three months when the time off for her cancer treatment is incorporated into the equation.
3. The record indicates that before the cancer diagnosis and upon her return from the cancer treatment, the Department addressed each of plaintiff’s accommodation requests and provided her with an accommodation. Many of those accommodations were in direct response to plaintiff’s own requests and suggestions. When those accommodations were unsatisfactory to the plaintiff, the Department permitted her to fully work from home and exchange work related documents with another employee at the building on Fridays.
4. Citing to another case, the court noted it had previously upheld the reasonableness of an employer requirement that a plaintiff encounter her direct supervisor.
5. While the Department did not provide the accommodation plaintiff wanted at first, it was only required to provide a reasonable accommodation that allowed her to perform the essential functions of the job. The Department did ultimately grant plaintiff her desired accommodations.
6. In assessing whether there was an unreasonable delay in granting an accommodation, courts consider: the length of the delay; the reason for the delay; whether the employer has offered any alternative accommodations while evaluating a particular request; and whether the employer acted in good faith.
7. The three month delay in granting plaintiff the requested accommodation of full-time work from home was not unreasonable given the intermediate additional accommodations provided by the Department that just didn’t work out.

IV

Court’s Reasoning Reversing Summary Judgment on the Unlawful Disclosure Claim

1. The Rehabilitation Act incorporates the confidentiality provisions of the ADA.
2. Under those confidentiality provisions, a covered entity cannot require a medical examination and cannot make inquiries of an employee at the whether such an employee is an individual with a disability or at the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.
3. Information obtained from an employee through a medical examination or inquiry per 29 C.F.R. §1630.14(c)(1), must be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record.
4. The 11^th Circuit has not addressed previously whether there is a private right of action for disclosing confidential medical information. However, the 11^th Circuit has explicitly recognized that a plaintiff has a private right of action with respect to the medical exam and disability related inquiry provisions irrespective of disability status. The two statutory provisions run in parallel with each other as they have similar language and virtually identical prohibitions concerning medical inquiries and proof of damages requirements.
5. Accordingly, a private right of action under 42 U.S.C. §12112(d)(4) exists. In order to bring such a claim, an employee has to show: 1) the employer either made an unlawful inquiry in violation of §12112(d)(4)(A) or violated his confidentiality requirements after making a proper inquiry under §12112(d)(4)(C); and 2) the employee suffered a tangible injury from the unlawful inquiry or disclosure.
6. An employer must request a medical examination or inquire into an employee’s medical status for there to be an “inquiry,” under the Rehabilitation Act.
7. An employee’s voluntary disclosure of a medical diagnosis to a supervisor or coworker is not an examination or inquiry for purposes of §12112(d)(4).
8. When an employer conditions an employee’s access to statutorily protected leave on the submission of medical information, that is an “inquiry,” under §12112(d)(4).
9. The statute prohibits employers from making medical inquiries unless they are job-related and consistent with business necessity. That restriction cannot be avoided simply because the employer’s demand for information is embedded in the mechanics of leave approval.
10. The D.C. Circuit has held that an FMLA form was an inquiry as the employee revealed his medical diagnosis only after his employer, through his direct supervisor, told him in writing that he would face disciplinary proceedings unless he completed either the FMLA form or a medical certificate explaining the nature of his illness. The D.C. Circuit reasoned that even if the employee could be said to have submitted the FMLA request voluntarily, that hardly meant he volunteered his medical diagnosis. After all, it was the Postal Service acting pursuant to its statutory authorization, and not the employee that initiated the inquiry into his medical condition by asking for the medical certification. As a result, the FMLA form constituted an inquiry. That court said to hold otherwise, would lead employees to be forced to choose between waiving the right to avoid being publicly identified as having a disability or exercising their statutory rights.
11. The D.C. Circuit reasoning applies to this case. On March 14, 2012, the Department approved her FMLA leave and told her that if it should become necessary for her to extend her leave beyond the current certification, she would be required to provide an updated position’s statement from her health care provider.
12. A March 14, memorandum from human resources to the Veteran Service Center manager also recounted that the plaintiff was informed in writing that new medical documentation would be required if her leave exceeded the amount recommended by the healthcare provider. A few lines later, the memorandum said that it was the responsibility of the supervisor to notify the employee that new medical documentation is required when leave usage is not intermittent as defined by the healthcare provider.
13. When the Department approved her to work from home for three days and two days working in the office, the approval form allowed the Department to ask plaintiff to provide updated medical evidence to establish whether the accommodation should continue or be changed. It went on to say that if plaintiff’s condition changed or if a change in the accommodation was warranted, it was the plaintiff’s responsibility to notify human resources.
14. When the Department approved her FMLA request, it noted that she would not eligible for a new 12 week allotment of leave until her prior entitlement ended. The letter also told the plaintiff that if it should become necessary for her to extend her entitlement beyond the current certification, she may be required to provide an updated physician’s statement from her health care provider.
15. In short, plenty of evidence in the record shows that when plaintiff requested leave, the Department told her approval required submission of additional medical documentation, which is exactly what plaintiff did. As such, she did not volunteer the information, rather she disclosed it because under the Department’s previous letters it was clear that disclosing the information was the only way for her to maintain her leave and her pay. That kind of disclosure is not voluntary in any meaningful sense.
16. When an employee must share medical information to receive benefits guaranteed by law, that requirement operates as an inquiry by the employer.
17. The partial dissent blurs two distinct legal questions: whether the Department made a medical inquiry; and whether the Department later disclosed information obtained through that inquiry. Both of those two questions are analytically separate questions under the applicable statutes and must be considered entirely separately.
18. If both a prior voluntary disclosure and a later inquiry are involved, the proper question is whether the disclosure stemmed from the inquiry (prohibited by the Rehabilitation Act/ADA), or from the voluntary disclosure (not prohibited).
19. The partial dissent’s contrary approach would allow employers to bypass the Rehabilitation Act’s inquiry safeguard by seizing on a prior voluntary disclosure and treating all future demand for medical documentation as outside the statute’s reach.
20. Where an employer requires medical information as a condition of leave approval, that demand qualifies as a statutory inquiry regardless of any earlier voluntary disclosure; a conclusion that follows from both the text and the structure of the Act.
21. Once an inquiry has been shown, a plaintiff has to show that the confidential information from that inquiry was disclosed in violation of the Rehabilitation Act.
22. There is sufficient evidence in the record to find that a person in human resources was the source of the allegedly unlawful disclosure and that she obtained the information from the FMLA form. In particular: 1) an internal memorandum approving plaintiff’s FMLA leave request for her cancer diagnosis signed by the person in human resources stated that specific medical condition was intentionally left off to avoid accidental disclosure; 2) the union steward’s email to plaintiff stated that he had discussed with a person in human resources plaintiff’s cancer diagnosis: 3) although plaintiff said she spoke to a few people about her diagnosis, there is insufficient evidence that the union steward learned of her diagnosis from anyone other than the person in human resources; 4) Sharing a medical condition with a few relatives or close friends does not as a matter of law, make the condition nonconfidential; and 5) plaintiff testified that she never told the human resources person about her cancer diagnosis.
23. An issue of fact also exists as to whether the union steward learned of the cancer diagnosis before plaintiff told anyone at work.
24. A reasonable jury could find that the human resources person disclosed plaintiff’s cancer diagnosis to the union steward after the FMLA form was submitted.
25. To succeed on an unlawful disclosure claim, a plaintiff has to show at least some damages (emotional, pecuniary, or otherwise), caused by the violation of the confidentiality provisions.
26. Damages liability must be based on something more than a mere violation of that provision. In other words, there have to be some injury in fact that is the legal and proximate cause for damages to arise from the violation.
27. Plaintiff’s testimony in her deposition alleged that she suffered emotional distress because of the alleged unlawful disclosure of her cancer diagnosis. That testimony is enough to withstand summary judgment on the injury aspect of the unlawful disclosure claim.
28. Although documentation of emotional distress is not required, the record does contain two letters from the Department of Labor office of Worker’s Compensation Programs updating plaintiff’s medical conditions in her file. If the diagnosis contained in those files are connected to the alleged unlawful disclosure, a jury could reasonably find that plaintiff suffered a tangible injury from the disclosure.

V

Court’s Reasoning Affirming Summary Judgment on the Retaliation and Hostile Work Environment Claims

1. A person cannot allege a retaliation claim when it is disguised as a failure to accommodate claim.
2. A hostile work environment claim contains four elements: 1) plaintiff belongs to a protected group; 2) plaintiff was subjected to unwelcome harassment; 3) the harassment was based on a protected characteristic; 4) harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatory early abusive working environment; and 5) plaintiff’s employer was responsible under a theory of vicarious or direct liability.
3. The severe or pervasive element contains both a subjective component and an objective component. That is, the employee must subjectively perceive the harassment as severe or pervasive enough to change the term condition of employment, and the perception must be objectively reasonable.
4. In assessing the objective component, the factor to look at are: 1) the discriminatory conduct’s frequency; 3) whether it is physically threatening or humiliating or a mere offensive utterance; and 4) whether it unreasonably interferes with an employee’s work performance.
5. Plaintiff did not provide enough evidence demonstrating how the Department’s handling of her continued request for accommodation was sufficiently severe or pervasive.

VI

Judge Tjoflat Concurring Opinion

1. A shotgun pleading can be divided into four categories: 1) a complaint containing multiple counts were each count adopts the allegations of all preceding counts; 2) a complaint replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action; 3) a complaint committing the sin of not separating into a different count each cause of action or claim for relief; and 4) a complaint committing the rare sin of asserting multiple claims against multiple defendants without specifying which of the defendant are responsible for which acts or omissions, or which of the defendants the claim is brought against.
2. Plaintiff’s complaint falls into the first category of §VI (1) of this blog entry.
3. The failure to disclose claim hinges on a single alleged disclosure. However, the complaint incorporates over 100 paragraphs of unrelated material into that count. The incorporation of prior material into that count of the complaint muddles the claim, burdens the defense, and invites the court to sift through the narrative to reconstruct a viable theory. The resources required of the judiciary in that situation is substantial and it should not be the proper function of courts to parse out incomprehensible allegations.
4. While the plaintiff has a shotgun pleading as described in §VI(1)(1), the defense in this case didn’t do anything about it either.

VII

Judge Jordan Concurring and Dissenting Opinion

1. An FMLA form can be an inquiry when it is provided by the employer to the employee without the employee having first disclosed her medical condition. However, the record in this case is not clear and presents a genuine issue of fact as to whether an inquiry was made as to plaintiff’s medical condition, i.e. her cancer diagnosis.
2. Sister circuits have held that voluntary disclosures of medical information-as opposed to those acquired from a medical inquiry where medical examination first requested awarded by the employer-do not constitute an inquiry of §12112(d).
3. If the employee voluntarily disclosed medical information to the employer without the employer specifically demanding the information first, then the employer has no duty to keep that information confidential.

VIII

Thoughts/Takeaways

1. The confidentiality requirements are strictly a Title I requirement and do not extend to the other Titles of the ADA.
2. This court holds that the ADA’s confidentiality requirements apply equally to the Rehabilitation Act.
3. §501 of the Rehabilitation Act specifically states that it is the ADA’s Title I statutory and regulatory provisions that apply.
4. The courts, certainly after this case, are split on whether the causation requirements of §504 (sole cause), applies to §501 of the Rehabilitation Act. Since §501 of the Rehabilitation Act incorporates the ADA, many courts have said that the Title I of the ADA’s causation standard, “on the basis of,” applies and not the §504 causation standard (sole cause). Certainly, an argument can be made that the language of §501 v. §504 of the Rehabilitation Act are so different that the two sections could have different causation standards. It will be interesting to follow how this particular issue plays out in the courts.
5. Unreasonable delay is actionable, as we discussed here. This case lays out the factors that will be considered where a person is claiming an unreasonable delay in granting accommodations.
6. Unlawful disclosure of information contained in disability related inquiries or medical exams does constitute a separate private right of action.
7. You don’t have to be a person with a disability to make a claim for violation of the confidentiality provisions.
8. While voluntary disclosure of a medical diagnosis to a supervisor or coworker is not an examination or inquiry, if that disclosure is being made in response to certain processes mandated by the employer, such as seeking FMLA leave, that disclosure is no longer voluntary regardless of whether a person may have told a few other people.
9. Proving up and unlawful disclosure claim means showing that an inquiry was made, information was disclosed through that inquiry, and the disclosure stemmed from that inquiry. There must also be damages beyond the mere violation (emotional distress qualifies for that purpose).
10. Considering Judge Tjoflat’s concurring opinion, plaintiff attorneys may need to reconsider pleading practice that literally goes back decades. That is, it has been true for decades for every count of a complaint to allege all of the facts stated in the facts section of a complaint. I had never thought of that as a shotgun pleading before, though the other examples of shotgun pleading I was aware of. The danger is Iqbal Twombly requires plenty of factual information for it to survive a motion to dismiss. Cutting down a pleading may risk running int Iqbal/Twombly issues. One wonders whether plaintiff attorneys, considering this practice goes back literally decades all around the country, will change how they do complaints as a result of this concurring opinion.
11. The section of Judge Tjoflat’s concurring opinion where he states that an employee voluntarily disclosing medical information to the employer without the employer specifically demanding the information first, gives the employer the right to spread that information is terribly problematic because it will discourage persons with disabilities from requesting reasonable accommodations for their disabilities.
12. Even though this is a per curiam decision, it is published and therefore, precedential.
13. It will be interesting to see if an en banc rehearing is requested or if cert. is sought. Issues that are unclear after this decision include: 1) whether the causation standard for §501 of the Rehabilitation Act is actually the same as the one for §504 of the Rehabilitation Act; 2) whether it is really crystal clear that the Rehabilitation Act incorporates the ADA’s confidentiality provisions of Title I; and 3) whether if §504 applies to §501, does that mean emotional distress damages are out per Cummings v. Premier Rehab Keller, which we discussed
14. It is not that unusual anymore for current employees to bring discrimination claims against their employers. I would expect that trend to continue now that Muldrow has been decided, here.