Unreasonable Delay is Actionable, Adverse Action Unnecessary, and More Good Stuff

Before getting started on the blog of the week, a housekeeping matter. I usually get my blogs up on Monday and sometimes Tuesday or even Wednesday. However, my daughter just finished her third year of college and is home for a short time before starting her summer gig. So, my schedule for the next couple of weeks will be a bit all over the place as will the day my blog goes up.

The blog entry of the day is Strife v. Aldine Independent School District (AISD), here, a published decision from the Fifth Circuit decided on May 16, 2025. It is a resounding win for people with disabilities from a circuit where you don’t often see that. There are lots of good things to discuss, including unreasonable delay in granting an accommodation, whether failure to accommodate claims require an additional adverse action, and a bunch of other stuff. As usual the blog entry is divided into categories, and they are: facts; court’s discussion of procedural history; court’s discussion of whether a delay in granting a reasonable accommodation may constitute an ADA violation; court’s reasoning affirming summary judgment as to the straight up disability discrimination claim; court’s reasoning affirming summary judgment as to the retaliation claim; court’s reasoning affirming summary judgment as to the interference claim; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts

Plaintiff, or Strife, previously served in the U.S. Army and was deployed to Kuwait and Iraq in late 2003 in support of Operation Iraqi Freedom. During her service she sustained shoulder, leg, and brain injuries and was later diagnosed with PTSD. She was medically discharged in May 2005.

After discharge, plaintiff pursued a career in the classroom when she joined the Aldine Independent School District (AISD) as a fifth and sixth grade teacher. Her disability rendered her unable to continue teaching in the classroom and she switched to a testing coordinator position within the district in 2015. She excelled in that position and after six years was promoted to work in the human resources department in 2021. Unfortunately, her disability progressed and in 2017, the U.S. Department of Veterans Affairs (“VA”) classified her as: • 100% disabled from service-related PTSD and depression; • 20% disabled from a right knee sublaxation (partial dislocation); • 10% disabled from right knee joint disease; and • 10% disabled from a chronic left ankle sprain. Strife was unable to mitigate her disabilities with alternative treatments. She thus applied for and received a certified service dog nicknamed “Inde.” Inde assists Strife with her physical and psychological disabilities by helping her maintain her balance and gait, protecting her from falling, and mitigating acute PTSD symptoms.

On August 30, 2022, plaintiff submitted a request through the district’s human resources portal asking the school district to accommodate her disabilities by allowing her service dog to accompany her at work. At the meeting on September 16, the district’s employee accommodation committee determined that it needed additional information to determine what specific job functions are impacted by her disabilities and whether there were any alternative accommodations. Plaintiff provided a letter signed by her provider attesting to the need for a service animal. However, AISD deemed the documentation insufficient because the provider was not a board certified medical doctor. Plaintiff then provided a letter from her treating psychiatrist also attesting to the need for a service dog.

When her physician was asked what reasonable accommodations would enable plaintiff to overcome her functional limitations, he responded having the support of a service animal. However, that wasn’t good enough for the AISD. They then insisted on a medical examination by a physician working on behalf of the school district and then that individual reviewing additional information.

Plaintiff frustrated by the apparent stonewalling sought legal advice that culminated in the following exchanges in 2022 and 2023.

August 30 Strife submits her request for accommodation through the Broadspire portal.

November 11 The organization that issued Strife’s service dog certification informs AISD that its insistence on a medical exam constitutes “discrimination under the ADA.”

November 16 AISD asks Strife to clarify whether she is “refusing to continue the interactive process to determine whether you can perform the essential functions of [your] job with or without reasonable accommodation.”

November 18 Strife’s lawyer writes a letter outlining disability law violations. AISD’s counsel replies that the district is aware that Strife believes that “a service dog is the sole accommodation,” that AISD had the right to “engage in the interactive process to determine the appropriate accommodation,” and that the exam was needed to “determine additional accommodations.”

November 19 Strife’s lawyer asks AISD to provide information about “additional accommodations” that the district was contemplating.

December 5 AISD’s counsel responds that the doctor letters that Strife provided were unreliable (they lacked letterheads and had conflicting doctor titles, and Strife admitted that she wrote at least one letter herself), and an exam was needed to “determine what accommodations are reasonable and required.”

December 23 AISD schedules a medical exam for Strife.

January 6, 2023 Strife’s lawyer provides three letters, including correspondence from two other physicians, confirming limitations and urging that AISD approve the request.

On January 6, 2023, Strife filed a Charge of Discrimination with the Texas Workforce Commission and Equal Employment Opportunity Commission. She asserted that AISD discriminated against her on the basis of her disability by denying a reasonable accommodation and retaliating against her actions. Four days later, on January 10, Strife underwent a VA led examination that assessed her physical disabilities. Two doctors separately confirmed that (1) Strife suffered from impairments relating to standing, balance, and gait, and (2) Inde was required “in all settings (including place of employment) to avoid further balance-related injuries.”

Strife’s attorney transmitted these additional letters to AISD’s counsel. The district’s counsel replied that the VA’s evaluation was lacking because the evaluating doctor’s notes were not provided. Strife’s attorney provided the examination notes on January 13. AISD then claimed that the supplemental letters were insufficient because they failed to “provide any information regarding potential alternative accommodations.”

II

Court’s Discussion of Procedural History

On February 1, 2023, Strife filed suit in the Southern District of Texas alleging (1) failure to accommodate, (2) hostile work environment, (3) disability discrimination, (4) retaliation, and (5) interference, all in violation of the Americans with Disabilities Act (“ADA”), the Rehabilitation Act of 1973, and Texas disability laws.2 She sought a temporary restraining order and preliminary injunction against the district on February 6.

During the TRO hearing, held on February 15, the district court denied Strife’s TRO request, but directed the parties to complete the “interactive process” as soon as possible. Six days later, and in response to an email from an AISD attorney, Strife’s counsel confirmed “that a walker, cane, and/or wheelchair would not be an effective accommodation of Ms. Strife’s physical impairments, as they would be of no benefit if/when she falls.” The district granted Strife’s request for accommodation two days later.

Strife continued to press her claims, and eventually filed a Second Amended Complaint. AISD moved to dismiss Strife’s failure-to accommodate and hostile work environment claims on November 20, 2023, and (in the alternative) for summary judgment on all claims on January 29, 2024. On June 12, 2024, the district court granted AISD’s motion to dismiss Strife’s failure-to-accommodate and hostile work environment claims. It also granted AISD’s motion for summary judgment as to Strife’s disability-based discrimination and retaliation claims and her ADA interference claim. Strife timely appealed.

III

Court’s Discussion of Whether a Delay in Granting a Reasonable Accommodation May Constitute an ADA Violation

1. Citing to a footnote in one of its prior cases, the court noted that in many employment cases, an employee continues working in the capacity arguably needing accommodation while the interactive process is ongoing. An employer that drags its feet in that situation forces the employee to work under sub optimal conditions, then could simply document the employee’s failures, and then could use the employee’s difficulties as an excuse to terminate the employee. An employer’s delaying of the process under those conditions might create liability.
2. The ADA does not permit an employer to circumvent the ADA’s protections by forcing the aggrieved employee to endure an endless interactive process, though the ADA does not require an employer to move with maximum speed to complete that process and preempt any possible concerns. Instead, the employer can move at whatever pace it chooses so long as the ultimate problem-the employee’s performance of her duties-is not truly imminent.
3. Plaintiff’s allegations do not merely concern a delay, but rather they suggest a lack of good faith from AISD to meaningfully evaluate her request in an appropriate and timely manner.
4. The Fifth Circuit has previously stated, along with other circuits, that a delay in providing reasonable accommodations may show a lack of good faith in the interactive process.
5. Plaintiff pled sufficient facts evidencing a lack of good faith on the part of AISD as she sought to use a service dog at work and did not require the district to handle the dog or for the district to modify her workplace whatsoever. Further, the district’s delay in granting that request undoubtedly forced her to work under sub optimal conditions for those six months.
6. According to plaintiff, the district filibustered the request because it wanted her to undergo an independent medical exam. While such an exam is not inherently unreasonable per the EEOC’s enforcement guidance if the individual provides insufficient information, plaintiff claimed that she repeatedly provided AISD with the information confirming her disabilities and the need for an accommodation. Accordingly, a reasonable factfinder could find that the district’s insistence that she undergo an independent medical exam was unreasonable.
7. Plaintiff also alleged that the school district failed to offer any reasonable accommodation for her disabilities and that her request was only granted after she initiated litigation and within weeks of a court scheduled injunction hearing. As a result, a reasonable factfinder could find that those additional allegations are reason to disbelieve the district’s claim that it needed to determine whether alternative accommodations were available.
8. Reasonable modifications are not restricted to modifications enabling the performance of essential job functions.
9. A failure to accommodate claim does not require proof of an adverse employment action.

II

Court’s Reasoning Affirming Summary Judgment as to the Straight up Disability Discrimination Claim

1. AISD did not literally alter the terms, conditions, or privileges of her employment during the six-month interactive process.
2. In a footnote, the court said that Muldrow as a title VII case was not applicable to the ADA. Even if it was, AISD made no change to plaintiff’s employment terms.
3. Plaintiff did not suffer any physical injury during the six-month interactive process.
4. The independent medical exam is not an injury because that examination never occurred as the school district withdrew its request and granted her request as soon as her attorney confirmed that alternative accommodations did not exist. Even if the examination occurred, there is no evidence to suggest that it would have affected the terms, conditions, or privileges of her employment with the school district.

III

Court’s Reasoning Affirming Summary Judgment as to the Retaliation Claim

1. While the Fifth Circuit has not addressed whether a request for an independent medical exam constitutes an adverse employment action for a retaliation claim, requiring the individual to see the employer’s health professional could be considered retaliation if the employee has already provided sufficient documentation of their disability and accommodation needs.
2. The record offers ample support for AISD’s assertion that despite plaintiff’s submissions, it still needed an independent medical exam the to complete its to complete its reviewewvi . While plaintiff did submit several different items of supporting documentation, none of those items addressed whether any alternative measures, such as a cane, wheelchair, or workplace modification, could alternatively address plaintiff’s disability. After all, the ADA provides a right to reasonable accommodation, not to the employee’s preferred accommodation. Accordingly, AISD had a legitimate and nondiscriminatory reason for insisting that plaintiff undergo an independent medical exam in order to determine whether any alternative accommodations existed. Indeed, once plaintiff’s attorney confirmed that no alternative accommodations were sufficient, the district dropped its request for an independent medical exam and approved the service dog in the workplace.

IV

Court’s Reasoning Affirming Summary Judgment as to the Interference Claim

1. The Fifth Circuit has not yet articulated a test for evaluating ADA interference claims, which can be found at 42 U.S.C. §12203(b).
2. Breaking the statute down, an interference claim has at least three requirements: 1) coercion, intimidation, threats, or interference toward an individual; 2) on the basis of that individual’s exercise or enjoyment, or having exercised or enjoyed, or aiding or encouraging others in exercising or enjoying; and 3) any right protected under the ADA. The Seventh Circuit, in a case we discussed here, added a fourth element requiring that the interfering employer must be motivated by an intent to discriminate. The Ninth and D.C. Circuits have said that the anti-interference provision cannot be so broad as to prohibit any action whatsoever that in any way hinders a member of a protected class.
3. Plaintiff’s argument for interference at summary judgment was restricted to a single footnote saying that the retaliation claim was distinct but predicated on the same underlying facts, which is an insufficient statement to carry the day.
4. Since the district had a valid nondiscriminatory reason for not immediately granting the requested accommodation, it would be difficult to construe the district’s continued engagement in the interactive process as interference in violation of the ADA.

V

Thoughts/Takeaways

1. The court also affirmed summary judgment on plaintiff’s hostile work environment claim saying that the allegations of such conduct did not sufficiently rise to the level of something so pervasive or severe as to create an abusive working environment. Also, a disagreement with an employer over terms of employment or an accommodation does not amount to harassment.
2. This case makes clear that it is perfectly permissible for an employer to insist on documentation when it gets a reasonable accommodation request. However, it is so important to use common sense as documentation requests cannot be excessive. It really helps if people involved in determining the scope of a documentation request have a disability themselves because people with disabilities can be incredibly sensitive to what might be excessive documentation.
3. The EEOC has no guidance whatsoever when it comes to service animals in the worksite. They have gone after employers that have denied service animals. For guidance an excellent preventive law approach and guidance on what is a service animal, look at the DOJ Title II and Title III regulations on service animals. While DOJ final rules are excellent preventive law, that doesn’t mean they are dispositive in the employment context, which is governed by EEOC final regulations and not the DOJ.
4. My experience has been that it isn’t always easy to find a plaintiff side lawyer prior to termination. This case illustrates why it can be so important to have such a lawyer prior to termination.
5. Interesting that the court distinguishes Muldrow because Muldrow talks about terms, conditions, and privileges of employment. The Fifth Circuit in this opinion actually uses the term “sub-optimal conditions,” on more than one occasion and yet distinguishes the case anyway. This strongly suggests that an adverse action requirement remains for non-failure to accommodate cases. What is an adverse action after Muldrow is not entirely clear, except we know that it is not much.
6. Failure to accommodate claims in the Fifth Circuit do not require an additional adverse action. As we discussed in this blog entry, such a conclusion is probably mandated by Muldrow.
7. Unreasonable delay in granting an accommodation is not only actionable but evidences a lack of good faith. The latter point is important because the lack of good faith is what allows for damages.
8. In a statement very important for owners of service animals, reasonable modifications are not restricted to modification that enables the performance of essential job functions. In other words, a service animal is a reasonable accommodation even if it is not explicitly doing anything specifically related to an essential job function.
9. Interesting that the Fifth Circuit talks about how if the examination occurred, there is no evidence to suggest that it would have affected the terms, conditions, or privileges of her employment with the school district. The last few years of my practice have found me increasingly involved with working with licensing counsel with respect to healthcare professionals with disabilities being placed into the PHP system because of their disability. If that universe is any indication, it is quite conceivable that the exam would have affected the terms, condition, or privileges of her employment. Again, we don’t know for sure, but it is possible.
10. A request for an independent medical exam can constitute a sufficient adverse employment action for retaliation claim if the employee has already provided sufficient documentation of the disability and accommodation needs. This particular reasoning of the court also has big implications for the world of healthcare professionals with disabilities vis-à-vis these referrals to any PHP programs by the health care professional’s employer.
11. The court in this opinion lays out the elements for interference, including citing a case we previously discussed, here. However, the Fifth Circuit doesn’t actually define what interference is. For that, you want to take a look at this blog entry.
12. Engagement in the interactive process is not the same thing as interference. The distinction between the two becomes rather obvious when you look at this previous blog entry of ours.
13. Be careful about overly restricting what type of documentation is acceptable, such as always insisting on documentation from a board certified physician. The question is whether the person has knowledge of the individual requesting the disability and has the expertise to speak on what might be needed to reasonably accommodate that disability. Such an individual could have a variety of qualifications.