Remote Work Was Not a Reasonable Accommodation for a Team Member Position

A health care fraud specialist (HCFS) for the Defense Health Agency (DHA) who worked on a four-person team could not establish that remote work was a reasonable accommodation for his position, the 10th U.S. Circuit Court of Appeals ruled.

In April 2010, the DHA hired the plaintiff as an HCFS assigned to the Program Integrity Office (PIO) in Aurora, Colo. As an HCFS, the plaintiff coordinated with various law enforcement agencies to investigate fraud in the military's health care system. Along with two other health care fraud specialists, the plaintiff served on a four-person team led by his immediate supervisor. His second-level supervisor was the PIO director.

Shortly after his hire, the plaintiff told his supervisors that he had been diagnosed with post-traumatic stress disorder, and other panic and anxiety disorders related to his military service. The plaintiff also told them that these conditions affected his ability to manage stress, concentrate and communicate, and that stressful environments aggravated his symptoms and caused panic attacks. Despite his disabilities, the plaintiff received satisfactory performance reviews.

When the plaintiff's symptoms worsened in September 2011, he was hospitalized and received in-patient treatment for one week. The agency approved his request for leave under the Family and Medical Leave Act (FMLA) and continued to approve FMLA leave after he returned to work, ultimately approving 12 weeks during his first two years on the job.

In May 2012, the plaintiff formally requested accommodations for his disabilities. Among other things, the plaintiff wanted to work remotely twice a week and to work weekends to make up lost time. The agency rejected those requests but allowed him to telework one day per week, even though office policy at the time permitted only one telework day every two weeks.

The agency also eliminated the plaintiff's air travel—a function that it deemed nonessential to his job. It provided him with a noise-canceling headset and sent employees an e-mail reminding them to reduce noise levels around cubicles. The plaintiff rejected other measures the agency offered to reduce office-related stress, including moving his cubicle to a less-trafficked area, raising the walls of his cubicle and allowing unpaid wellness breaks.

The plaintiff met with his immediate supervisor to request a transfer to another supervisor's team. The supervisor denied the request because the other supervisor had no openings on his team at the time. About a year later, he asked the PIO director for a supervisor swap after a dispute with his immediate supervisor. This request was denied.

During the plaintiff's remaining time with the agency, he had a strained relationship with his supervisors. In September 2013, he had a heated argument with his supervisor after his supervisor requested more work from him on a case investigation. The supervisor claimed that the plaintiff threw a case folder at him, and the PIO director issued the plaintiff a reprimand letter.

In July 2014, the plaintiff e-mailed his supervisor, claiming bias and prejudice in his denial of another supervisor-transfer request. The supervisor responded and explained his decision, criticized the plaintiff's poor attitude, refuted any discrimination and encouraged the plaintiff to report any complaints. The plaintiff resigned nine days later and sued the agency under the Rehabilitation Act for failing to accommodate his disabilities and discriminating against him.

The district court granted summary judgment for the agency on all the plaintiff's claims. On appeal, the plaintiff claimed that the district court erroneously concluded that his telework request was unreasonable as a matter of law. The court found that physical presence in the office was not essential just because the agency said so, but that it would have to evaluate the plaintiff's evidence that it was not job-related, uniformly enforced or consistent with business necessity.

The court found that, at that time, the agency's case files were in paper format and were generally two-inches-to-three-feet thick. Thus, for the plaintiff to work from home, considerable scanning would be required that would take extensive time and administrative resources.

The court further found that the plaintiff needed to interact with law enforcement partners, which required that he be in the office during weekdays, not weekends. The court found that a transfer to another supervisor was not reasonable and upheld the dismissal of the plaintiff's claims.

Brown v. Austin, 10th Cir., No. 20-1049 (Sept. 15, 2021).

Professional Pointer: Technological advances and the use of remote work during the pandemic have strengthened employees with disabilities' arguments for telework as a reasonable accommodation. Nonetheless, employers with jobs that require team interaction can require in-person attendance.

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.