What an Employer Should Not Do When Faced With an Employee’s Request to Use a Service Animal at Work

Before getting started on the blog entry of the week, my daughter will be coming home for spring break this coming Friday. Her break is a week, so it may not be possible to do a blog entry next week. Also, good luck on your men and women in NCAA tourney brackets. Drake University men are the feel-good story of the year. Go Dogs!

This week’s blog entry comes to me courtesy of Clinical Law Professor Leonard Sandler of the University of Iowa and discusses how an employer should not deal with the accommodation process when it come to an employee requesting the use of a service animal. The case of the day is Hinton v. Dep’t of Agric., 2025 MSPB LEXIS 982. As usual, the blog entry is divided into categories and they are: facts; Merit Systems Protection Board (MSPB’s), reasoning that the termination was not supported by the preponderance of the evidence; MSPB’s discussion of remedies available; MSPB’s reasoning that appellant proved the agency failed to provide her with the reasonable accommodation; MSPB’s reasoning that appellant proved the agency discriminated against her based on her disability; MSPB’s reasoning that appellant showed that but for her protected activity, the agency would not have removed her; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts (Taken Directly from the Opinion and Also Paraphrased)

While serving on active duty with the United States Army in Iraq, the appellant suffered fractures to both of her feet due to an explosion. See I-4 AF, Tab 26 at 43; Tab 29 at 36-37. As a result of her injuries, the appellant has undergone many surgeries and has permanent physical limitations regarding her mobility. See id. In 2015, the appellant was diagnosed with Generalized Anxiety Disorder and Major Depressive Disorder. See I-4 AF, Tab 26 at 43. The appellant was diagnosed with Post-Traumatic Stress Disorder (PTSD) in February 2016. See id.

In 2015, the appellant’s medical providers recommended that she get a service canine to assist her with her mobility and mental health symptoms. See id. at 45. In June 2017, the appellant received a professionally trained service canine named [*4]  “RJ” (RJ). See id. at 45, 65. RJ is trained to provide mobility support to the appellant. See id. at 45. RJ is also trained to sense when the appellant is about to have a panic attack and, when he senses this, to provide pressure therapy to avert the attack or to shorten its length. See id. The appellant testified in a sworn declaration that RJ helped her regain her independence through the assistance that he provides. See id. RJ was trained to remain beside or within the appellant’s eyesight with or without a leash, or to remain in a specified place if she needed to walk away for a period of time. See I-4 AF, Tab 26 at 47-48; Tab 29 at 54, 102-04. RJ was trained not to cause any disturbance or to give attention to anyone other than the appellant without her permission. See I-4 AF, Tab 26 at 47-48. RJ was trained to respond to verbal commands and nonverbal cues to assist the appellant as needed. See I-4 AF, Tab 29 at 54-55. The mobility support that RJ was trained to provide to the appellant could not always be accomplished when he was leashed or restrained. See I-4 AF, Tab 26 at 48.

On July 17, 2017, the appellant underwent a surgical procedure on both of her feet. See id. at 70. During her recovery from [*5]  this procedure, the agency approved her to telework full-time as a reasonable accommodation from the date of her surgery until when she was released to return to the office. Id. Mr. Beckwith became the appellant’s supervisor in November 2017, around the time that she returned to work in the office after her period of extended telework. See I-4 AF, Tab 26 at 46; Tab 29 at 46-47. When the appellant returned to work following her surgery recovery, the agency permitted her to bring RJ to work with her daily, with no restrictions, as a reasonable accommodation. See I-1 AF, Tab 1 at 34; I-4 AF, Tab 26 at 45, 72; Tab 29 at 160. Thereafter, the appellant was allowed to work from home as needed to accommodate medical appointments and PTSD flare-ups. See I-4 AF, Tab 26 at 46.

From July to November 2018, the appellant worked in a temporary duty assignment in Austin, Texas. While in this assignment, the appellant continued to perform her duties for the Raleigh office remotely. See I-4 AF, Tab 26 at 46-47; Tab 29 at 45-46, 112-13. RJ continued to accompany the appellant to work every day in this assignment without incident. See I-4 AF, Tab 26 at 46-47.

The appellant was not made aware of any concerns [*6]  or complaints about RJ’s presence at the office, either in Raleigh or Austin, until after her return to the Raleigh office in November 2018. See I-4 AF, Tab 29 at 112. During the year-long period that RJ accompanied the appellant to the office starting in November 2017, the agency did not impose any rules or guidelines that applied to RJ’s presence in the agency’s offices. See I-4 AF, Tab 26 at 46; Tab 29 at 160.

Shortly after the appellant’s return to the Raleigh office, Mr. Beckwith presented her with a “Service Canine Agreement” (agreement) dated November 26, 2018. See I-4 AF, Tab 26 at 72-73. The agreement set forth various rules governing RJ’s presence at the office, some of which the appellant felt were inappropriate. See I-4 AF, Tab 26 at 48, 72-73. Most notably, the agreement required RJ to be kept on a leash at all times, which made it difficult or impossible for him to perform some of the tasks that the appellant required, particularly those related to assisting her with her mobility. See I-4 AF, Tab 26 at 48, 72-73. Additionally, given the appellant’s mobility limitations, the act of having to hold a leash has a negative impact on her ability to walk and could cause her to [*7]  lose her balance or fall. See id at 48. The appellant verbally expressed her concerns about the restrictions in the agreement to Mr. Beckwith, but he led her to believe that if she did not sign the agreement immediately, she would not be permitted to bring RJ to work with her the following day. See id. This caused the appellant to sign the agreement despite her concerns. See id.

The next day, appellant submitted a formal appeal of the agreement. The person handling that appeal denied the appeal and did not discuss the appellant’s issues with the provisions of the canine agreement before making her decision. The person handling the appeal had never seen a canine service agreement before reviewing this one. She determined that the agreement was acceptable without change by primarily doing some Internet searches. She concluded based on the results of her Internet search that the provisions of the agreement were similar to those that commonly appear in such agreements.

From there, things went from bad to worse. USDA expanded appellant’s cubicle and installed a baby gate. However, the baby gate had a plastic strip across the bottom creating a safety hazard for the appellant’s mobility limitations and also triggered her PTSD when the gate was closed and when her supervisor repeatedly slammed the gate closed when he saw it open.

The day after her supervisor was contacted by an agency EEO counselor regarding appellant’s informal complaint, the supervisor was actively soliciting information from employees regarding the appellant’s alleged violations of the service canine agreement. The supervisor eventually issued notice of violations of that canine agreement. He eventually placed the appellant on administrative leave demanding that the appellant could return to work if she furnished medical documentation indicating that she did not present a danger to herself or others. The appellant then responded to her supervisor with a letter from her doctor stating that she was cleared to return to work and indicating that telework would be optimal under the circumstances. Her supervisor denied that request.

Within a week, her supervisor issued a notice of proposed removal and also a notice stating that the appellant was being placed on administrative leave pending the outcome on the agency’s decision on her termination.

In response to the notice of her termination, the appellant explained her belief that the agreement was inappropriate as well as her attempts to work with her supervisor to comply with its requirements. She also explained that the leash requirement of the agreement was completely unnecessary and interfered with the way the service animal performed job. She also explained that she had attempted to meet with the agency’s reasonable accommodation team to discuss her concerns and come to a solution, but those meetings were canceled twice and never took place. Even further, she stated that her union had requested a mediation between her and her agency management team regarding these matters, but the agency never responded to the request.

The agency subsequently proposed an alternative discipline agreement as a resolution of the notice of termination. However, the appellant notified the agency she would not sign the proposed agreement because she believed the rules contained within the service canine agreement she signed and had allegedly violated were inappropriate. She also claimed she signed the service canine agreement under the threat of being denied the assistance of her service animal.

She then requested reassignment but was subsequently informed that the reassignment search had been unsuccessful, and so her accommodation request for reassignment was denied (it turns out that a reassignment search had never been done).

In response to a notice of proposed removal for the inability to maintain a regular work schedule, appellant submitted letters from her physicians stating the need for her service dog and why the service dog was needed. Unfortunately, those letters were sent to an incorrect email address. Eventually, the matter winds up before the Merit Systems Protection Board (MSPB), which reverses the termination on ADA grounds. They did note that the appellant did not establish a due process violation.

II

MSPB’s Reasoning That the Termination Was Not Supported by the Preponderance of the Evidence

1. When the employee’s removal agency’s charge of medical inability to perform is based on a current medical condition, the agency has to prove either a nexus between the employee’s medical condition and observed deficiencies in her performance or conduct, or a high probability, given the nature of the work involved, that her condition may result in an injury to herself and others. That standard means that the agency needs to establish that the employee’s medical condition prevents her from performing her core duties (essential functions per the ADA), of her position. Core duties are not marginal functions, but are the reason the position exists.
2. In determining whether the agency’s burden is met, the MSPB considers whether a reasonable accommodation exists that enables the person to perform those core duties with or without reasonable accommodations.
3. A substantial portion of appellant’s extended absence cited in the notice that she was unable to come to work was due directly to the agency’s actions or lack of actions.
4. Similarly, the agency’s attempt to rely on FMLA certification paperwork does not fly either because it does not support the proposition that she was incapacitated from performing her duties beyond the 12 week period indicated.
5. Appellant never took the position that telework was required by her medical restrictions according to the record.
6. A readily apparent reasonable accommodation existed, i.e. permitting her to work with her service animal without unnecessary requirements and restrictions.
7. Her service animal was professionally trained to assist her with coping with her symptoms of PTSD as well as providing assistance regarding her mobility issues resulting from the long-term impact separate service-connected foot injuries. The service animal was also trained to remain under her control with or without a leash. Finally, she worked successfully with the service animal for many months without any concerns.
8. The person affirming her supervisor’s decision with respect to upholding the canine agreement did so without having any discussion with the appellant.
9. “Professional atmosphere,” is not a defense when a reasonable accommodation is possible and has already proven effective.
10. It was only her supervisor’s insistence on imposing the leash requirement and the inflexibility in making adjustments afterwards when those requirements proved ineffective, that led to appellant’s extended absence.

III

MSPB’s Discussion of Remedies Available

1. To obtain the full measure of relief available, the appellant must show the discrimination was a but for cause of the employment decision. Citing to Bostock, which we discussed here, the but for causation standard does not require discrimination to be the sole cause of the contacted action, only a necessary one. Further, there may be more than one but for cause. In essence, the but for test directs a court to change one thing at a time and see if the outcome changes. If it does, but for cause is present.
2. Discrimination can either be shown by direct evidence, circumstantial evidence, or some combination of direct and circumstantial evidence.

IV

MSPB’s Reasoning That Appellant Proved the Agency Failed to Provide Her with the Reasonable Accommodation

1. Establishing a prima facie case means showing: 1) the appellant is an individual with a disability and that the action appealed was based upon her disability; and 2) the appellant is a qualified individual with a disability. That is, the appellant satisfies the requisite skill, experience, education, and other job-related requirements of the position and can perform the essential functions of the position with or without reasonable accommodation.
2. When an employee informs the agency of the need for an accommodation, the agency must engage in an interactive process to determine an appropriate accommodation.
3. Once an appellant establishes a prima facie case, the agency then bears the burden of demonstrating an undue hardship on its operations. Once they do that, it is up to the appellant to show pretext.
4. The record is clear that the appellant has a disability as a result of her service-connected injuries to both of her feet as she has undergone many surgeries and has permanent physical limitations regarding her mobility. She also discussed in her testimony how her physical conditions substantially limit major life activities of standing and walking as well as lifting. She also testified that she had various mental health conditions as well. Accordingly, appellant is a person with a disability under the ADA.
5. Appellant is also a qualified/otherwise qualified person as she demonstrated that she could perform the essential functions of her job if the agency had simply continued to accommodate her in the manner that it did for a full year without imposing unnecessary requirements and restrictions. She showed that the issues leading to her extended absence were directly related to her supervisor’s unilateral decision to withdraw the effective accommodation and impose an unworkable requirement that the service animal be subject to constant restraint while in the office. The record also shows that the agency failed to engage the appellant in an interactive process after she informed management of the problems caused by the installation of a baby gate at her cubicle entrance.
6. The undue hardship argument doesn’t fly because it was the agency’s failure to provide the appellant with an appropriate accommodation that precipitated her absence from work. It also ignores the fact that the agency’s own actions initiated and extended the appellant’s absence from work.
7. Telework is a red herring because a plausible accommodation was available that would have allowed the appellant to perform her duties while working in the office.
8. Appellant’s supervisor admitted in his deposition that appellant’s service dog never exhibited any aggressive conduct.
9. “Professional atmosphere in the office,” concerns are insufficient to demonstrate the existence of an undue hardship.

V

MSPB’s Reasoning That Appellant Proved the Agency Discriminated against Her Based on Her Disability

1. The agency’s disposition of the appellant’s removal was improper because her disability did not prevent her from performing an essential function of her position with reasonable accommodation.
2. The agency cannot disconnect the appellant’s disabilities from its reason for removing her. That is, if the appellant did not suffer from her disability, she would not have found herself in the situation she did. As such, she furnished direct evidence of discrimination.
3. Since the agency did not advance an independent nondiscriminatory reason for her removal and the appellant was a qualified individual with a disability, causation is present.

VI

MSPB’s Reasoning That Appellant Showed but for Her Protected Activity, the Agency Would Not Have Removed Her

1. Appellant engaged in protected EEO activities on numerous occasions by making numerous requests for reasonable accommodation for her disabilities. She also submitted informal EEO complaints as well.
2. The quick response of her supervisor after engaging in the protected activities to document her noncompliance with the leash agreement are highly suspicious, and suggests that her supervisor’s decision to take the actions leading directly to appellant’s absence were motivated by retaliation for the appellant’s initiation of EEO complaint activity against him.
3. The preponderance of the evidence also demonstrates that her supervisors took a cavalier attitude toward the appellant’s reasonable accommodation requests during the months leading up to her removal, and that the denial of her requests, and her ultimate removal, were essentially preordained.
4. Based upon meeting notes, it is pretty clear that as of the time the reassignment requests was made, it had already been determined that the appellant’s request to be reassigned was going to be denied and the process for removing her was going to start.
5. The notice that the reassignment search had been unsuccessful was in fact not true because the reassignment search had never been performed in the first place.
6. Plaintiff demonstrated that the agency management viewed her reasonable accommodation requests from the beginning of her absent from work as an impediment to their ultimate goal of removing her. That when combined with the highly suggestive timing of her supervisor’s actions initiating the appellant’s absence from work notice, provide a strong basis for concluding that retaliation existed for making the EEO charges.

VII

Thoughts/Takeaways

1. If an accommodation is working, be very careful about taking it away. Even if it is justified to take it away, and it was not in this case, the odds of litigation increase astronomically by doing that.
2. This case clearly goes with the line of thought that it is the disability being accommodated and not the essential functions of the job that are being accommodated. See this blog entry.
3. For figuring out what is a service animal, it is helpful to look at the DOJ final implementing regulations on service animals.
4. Always engage in the interactive process.
5. Clearly, USDA had not read my blog entry about the do’s and don’ts of the interactive process, which is here.
6. There is some language in the opinion about the ability to safely perform the job. I ignored that language because that simply isn’t how the ADA works. The question is whether a person can perform the essential functions of the job with or without reasonable accommodations without being a direct threat to self or others. Direct threat is a high standard to meet. See this blog entry for example.
7. “Professionalism concerns,” is not sufficient for refusing to engage in the interactive process or refusing to make reasonable accommodations.
8. The blog entry on Bostock, which we discussed here, is must reading.
9. It is a bad idea for an employer to respond in adverse ways when a reasonable accommodation request is made. Whether an adverse action is even required at all in a failure to accommodate case is an ongoing debate. In light of a recent Supreme Court opinion, which we discussed here, a strong argument exists for not requiring an additional adverse action when a failure to accommodate is involved.
10. It is also a bad idea for an employer to say they did something, such as investigating the idea of reassignment, when no such investigation ever occurred.
11. Training, training, training by ADA knowledgeable individuals is always important. I suggest annual training at least and make sure that training is comprehensive and not superficial.
12. Utilize ADA knowledgeable legal counsel when called for. For example, the canine service agreement in this case should have been reviewed by legal counsel. Knowledgeable ADA legal counsel would have spotted the problems immediately and most probably would have had agency personnel engage in the interactive process immediately after that.