Roadmap for Dealing With Failure to Accommodate Claims at Summary Judgment

Today’s blog entry discusses a case, Tornabene v. City of Blackfoot, here, out of the United States District Court for the District of Idaho that is set for trial on February 24, 2025. The decision denying summary judgment on the disability discrimination claims came down on September 11, 2024. The case presents an excellent roadmap for dealing with failure to accommodate claims at the summary judgment stage. As usual, the blog entry divided into categories, and they are: Facts; court’s reasoning denying summary judgment with respect to whether plaintiff was a qualified individual with a disability; court’s reasoning denying summary judgment with respect to whether defendant engaged in the interactive process; court’s reasoning that plaintiff’s failure to accommodate claim and unlawful discrimination claim are the same claim; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts (taken very closely from the opinion)

Plaintiff was in HR director for the city of Blackfoot from 2015 until September 2021. As the HR Director, Tornabene reported to the City Clerk, Suzanne McNeel, and to Carroll. According to the City’s job description, the HR Director’s primary functions included developing and implementing personnel policies, overseeing personnel records management, monitoring and assuring city-wide legal compliance, overseeing general employee relations and development, monitoring policies to assure fair and consistent treatment of employees, developing personnel strategies and policies, and investigating alleged legal violations. This job description states, “The principal duties of the position are performed in a general office environment.”

Between 2015 until March 2020, Tornabene worked a traditional schedule from her office in City Hall, although she performed most of her duties by telephone and on the computer. In March 2020, Tornabene and other City staff began working remotely during the pandemic. At that time, Tornabene set up a home office where she had all the equipment and technology she needed to work efficiently, including a desk, a computer, monitors, a printer with fax and scanner capabilities, an office chair, video conferencing capabilities, and filing space to store documents until she could file them at City Hall. Additionally, she had full, remote access to the City’s network.

In the summer of 2020, most of the staff had returned to the office. However, plaintiff continued to work remotely to protect her elderly parents from contracting Covid-19. In early September 2020, plaintiff was diagnosed with Covid-19 and was severely ill for approximately six weeks. Although she recovered and was able to work remotely, plaintiff’s symptoms continued and she developed long Covid-19, which included breathing problem, headaches, chronic fatigue, brain fog, and vertigo. Her nurse practitioner advised her to continue working remotely, and in December 2020, plaintiff informed one of her supervisors that she was not medically cleared to return to the office. At first, the City accommodated plaintiff’s request to work from home.

While Tornabene was working from home between December 2020 and her September 2021 discharge, Tornabene’s husband, Scott Denning, drove Tornabene to City Hall two or three times per week to onboard new employees, to meet with employees, to file paperwork, to perform factfinding for employee relations, to consult with managers, to conduct interviews, or to do other tasks. When taking Tornabene to her office in City Hall, Denning helped Tornabene with various tasks, including faxing, retrieving file folders, or shredding documents. Some of the folders Denning filed for Tornabene contained confidential personnel documents.

Denning, however, only handled “folders”—not individual documents—and he did not see the folders’ contents. He filed personnel folders in the “vault” where the City stored its personnel folders. The City only allows designated employees access to the vault. McNeel and Carroll knew Denning, who was not a City employee, was assisting Tornabene at her office. For example, McNeel downloaded a security video of Denning accessing the vault while assisting Tornabene and showed the video to Carroll and the City’s legal counsel. Neither McNeel, Carroll, nor the City’s legal counsel, however, expressed any concern to Tornabene about Denning helping her.

Sara Furu, an administrative assistant for the City Clerk’s Office, also helped Tornabene with administrative tasks at City Hall. Both Tornabene and Furu testified that McNeel had approved Furu helping Tornabene with administrative tasks, including filing in the vault, even before the pandemic occurred. While working remotely, Tornabene also asked Furu to delete voicemails from her phone at City Hall. Tornabene had already listened to these voicemails at home, which she received via email attaching the messages; therefore, Furu could simply delete the voicemail messages without listening to them. Furu denied receipt of any confidential personnel information while assisting Tornabene.

Tornabene performed her duties remotely, including addressing employee relations issues, consulting on benefits, updating the website, participating in interviews, processing onboarding documents, attending weekly staff meetings with the Mayor, setting up training sessions, and answering questions. During the time when Tornabene was working remotely from her home office and going to City Hall as necessary, no one ever told her directly that they could not reach her; she was not responding quickly enough; she was not completing tasks as required; or she could not have her husband or Furu assist her.

In April 2021, plaintiff’s supervisor met with plaintiff and advised her that having regular in person office hours was an essential function of the HR Director position. By then, the City had operated for over a year without an HR Director in the office. Her supervisor testified that she felt the HR Director needed to have designated in office hours each day to be available for in person consultation with department heads and other employees. He also testified about complaints from other department heads about remote work but would not tell plaintiff who had complained or what their specific complaints were.

Plaintiff’s medical provider continued to insist that plaintiff should continue working from home and requested that the City accommodate her by allowing her to continue working from home while going to the office as necessary. Her supervisor was having none of it and insisted that Plaintiff take short-term disability leave to be reevaluated in eight weeks, which she did.

Near the end of July 2021, Tornabene exhausted her short-term disability leave, and Carroll again asked her to return to the office at least part-time. Tornabene responded by providing a letter from her doctor, who opined it was “medically necessary” for Tornabene to continue working from home and suggested she be re-evaluated after eight weeks to determine whether her condition had improved.

The City insisted on a second opinion and claimed it could force Tornabene to see the City’s doctor. Tornabene responded, asking the City to identify what was unacceptable about her doctor’s letter, inquiring what additional information she could provide from her own medical providers, and requesting the City to contact her doctor. Thereafter, the City denied Tornabene’s requested accommodation and terminated her employment in September 2021.

Plaintiff brought suit alleging violations of the ADA, the Rehabilitation Act, The Idaho Human Rights Act, Title VII of the Civil Rights Act, the equal protection clause, and the FMLA. The blog entry will only discuss the disability discrimination claims.

II

Court’s Reasoning Denying Summary Judgment With Respect To Whether Plaintiff With A Qualified Individual With A Disability

1. A qualified individual is a person with a disability who with or without reasonable accommodation can perform the essential functions of the employment position.
2. Plaintiff bears the burden of proving, “qualified.”
3. A court has to first consider whether the plaintiff can perform the job’s essential functions without reasonable accommodation. If not, the court has to consider whether the plaintiff can perform the essential functions of the job with a reasonable accommodation.
4. Essential functions per 29 C.F.R. §1630.2(n)(1), of the job refers to the fundamental job duties of the employment position.
5. A job function is essential if removing it would fundamentally alter the position.
6. Essential functions do not include the marginal functions of the position.
7. A job function can be essential for a variety of different reasons.
8. While a court must consider the employer’s judgment regarding what job functions are essential, including any written job descriptions the employer prepared, that evidence is not conclusive.
9. An employer may not turn every condition of employment into an essential function by including it in a job description. Instead, essential functions of the job are a highly fact specific inquiry.
10. Citing to a case that we have discussed in our blog entry, here, the court said that the employer has the burden of production to establish what job functions are essential.
11. If the evidence is conflicting regarding a position’s essential functions, a factual dispute exists precluding summary judgment notwithstanding what the job description says.
12. The HR director job description stated only that the plaintiff was to oversee personnel records management and did not require her to handle personal records exclusively. Plaintiff had already heard voicemails that other staff had deleted for her and did not rely on other staff to listen to those messages. Further, the City never objected to her husband assisting the plaintiff, even though they were aware of his assistance and the nature of that assistance.
13. An employer’s written job description is not conclusive and an employee’s presence at work is not an essential function of the job just because an employer says it is.
14. The City Chief of Police testified that he had no problem with plaintiff working remotely and that to his knowledge no one in the police department had experience any difficulty with her working remotely either. According to his testimony, plaintiff was available and helpful to him and other members of law enforcement as needed even when matters arose outside of normal business hours or on weekends. He testified that plaintiff fulfilled her duty so well that he hardly noticed she was working remotely.
15. Plaintiff challenges the City’s requirement that she maintain regular in person office hours. Whether that requirement was an essential function of the job presents a genuine material factual issue for trial, as plaintiff has presented evidence that regular attendance was not necessary to perform the essential functions of her job.
16. Determining whether a proposed accommodation is reasonable is a fact specific individualized inquiry.
17. Plaintiff bears the initial burden of showing the existence of a reasonable accommodation that would enable her to perform the essential functions of the position.
18. To avoid summary judgment, plaintiff only needs to present evidence sufficient to make at least a facial showing that reasonable accommodation is possible.
19. Once plaintiff establishes the existence of a reasonable accommodation, the burden switches to the defendant that show that the accommodation constitutes an undue hardship.
20. Courts have concluded that working remotely is arguably a viable accommodation in certain circumstances.
21. The EEOC has reiterated that teleworking may be a reasonable accommodation for people with long Covid.
22. Plaintiff presented evidence that she performed well while working mostly remotely.
23. The City has to show that plaintiff’s suggested accommodation was unreasonable or would impose an undue hardship. However, City failed to submit any evidence or even argue that allowing plaintiff to continue to work remotely would have been unreasonable or otherwise impose an undue hardship.

III

Court’s Reasoning Denying Summary Judgment With Respect To Whether Defendant Engage In The Interactive Process

1. An employer has a duty to engage in the interactive process.
2. Employers failing to engage in the interactive process in good faith face liability for the remedies imposed by the ADA if a reasonable accommodation would have been possible.
3. An employer cannot prevail at summary judgment if there is a genuine dispute as to whether the employer engaged in good faith in the interactive process.
4. The task of proving the negative-that no reasonable accommodation was available-rests with the employer throughout the litigation. Further, given the difficulty of proving such a negative, it is not likely that an employer will be able to establish on summary judgment the absence of a disputed fact as to this question.
5. The City bears the burden of proving that a failure to engage in the interactive process should be excused because no reasonable accommodation would have been available in any event.
6. If an employer does not engage in the interactive process, summary judgment is only available if a reasonable finder of fact must conclude that there would have been no reasonable accommodation available.
7. To avoid summary judgment, an employee need only show that an accommodation seemed reasonable on its face, i.e. ordinarily or in the run of cases.
8. Plaintiff presented sufficient evidence to meet her burden that her requested accommodation was reasonable on its face.
9. Evidence does not show that the City engaged in the mandatory interactive process. Once plaintiff requested an accommodation, the City had a mandatory duty to engage in an interactive process to identify and implement a reasonable accommodation that would have permitted the plaintiff to retain her employment.
10. Instead of engaging in the interactive process, the City denied plaintiff’s requested accommodations without suggesting any alternative solutions or exploring with her the possibility of other accommodations. Instead, the City consider the matter closed. In fact, evidence indicates that the City refused to discuss or consider the possibility of other accommodations aside from requiring plaintiff to come into the office for two regularly designated hours every day.

IV

Court’s Reasoning That Plaintiff’s Failure To Accommodate Claim And Unlawful Discrimination Claim Are The Same Claim

1. A failure to accommodate claim and an unlawful discharge claim are, as a practical matter, the same thing when the failure to accommodate results in an alleged unlawful termination.
2. Plaintiff’s failure to accommodate claim and her unlawful discrimination claim are essentially the same thing because there is a causal connection between her disability, which prevented her from going to the office on a regular basis, and the City’s termination of her employment for that very reason. Furthermore, plaintiff presented direct evidence (smoking gun emails about the virtue of remote work for employees), indicating the City terminated her employment because she had long-Covid.

V

Thoughts/Takeaways

1. Always engage in the interactive process. It is a big problem if it doesn’t happen.
2. Case presents a nice roadmap for dealing with the reasonable accommodation claim at the summary judgment stage.
3. ”Qualified,” means asking whether the person can perform the essential functions of the job with OR without reasonable accommodations.
4. Think of essential functions as the fundamental job duties of the employment position.
5. Employer’s judgment regarding what job functions are essential is not dispositive. Rather, determining essential functions is a highly fact specific inquiry.
6. Up to the employer to produce evidence as to what job functions are essential.
7. Employers need to have a program in place where job functions are regularly reviewed for what is actually happening on the ground.
8. Lots of employers are now insisting on return to work. This case illustrates that if something is working, be careful about taking it away. Also, is it really worth losing a productive employee?
9. I prefer the term “reasonable accommodation on its face,” over, “in the run of cases.” I have no idea what the latter means.
10. Courts are becoming a lot more flexible now about remote work. Even the EEOC has gotten behind it now in certain circumstances. If an employer is going to insist on ending remote work, make sure that it is allowed for people with disabilities who are able to show remote work is a reasonable accommodation for them. It would also help on the employer side, if statistical evidence existed that employees in that position actually do better in the office rather than management just assuming that it has to be that way.
11. Failing to engage in the interactive process basically guarantees summary judgment being denied that no reasonable accommodation was available.
12. Insisting on a second opinion as you might with the FMLA, is not recommended. Instead, ask for clarification if it is needed. Also, keep any clarification requests narrowly focused.
13. I love the Samper case, which we discussed here, for determining whether attendance is an essential function of the job, and I am delighted to see another court agrees with me. Keep in mind, as a result of the pandemic, to have those Samper factors should contain an in person requirement going forward. Samper actually occurred before the pandemic, so the court would have had no idea just how easily work can be done remotely with the available technology.