Although disability-based harassment/hostile work environment claims have been recognized by the courts for a while, they aren’t very common. The U.S. Court of Appeals for the 5th Circuit—which covers Louisiana, Mississippi, and Texas—recently rejected an employee’s claim of disability-based harassment under the Americans with Disabilities Act (ADA), finding her employer’s good-faith efforts to engage in the interactive process to identify a reasonable accommodation didn’t create a hostile work environment. This case is worth a closer look.
Facts
From 2008 to 2014, “Harper” worked as an assistant attorney general in the Medical Malpractice Section of the U.S. Department of Justice’s (DOJ) Litigation Division in Louisiana. Harper underwent a kidney transplant in May 2010 and was granted an ADA accommodation to work from home for approximately 6 months.
In 2013, Harper experienced additional health problems due to complications from the kidney transplant. From March to August, she took leave under the Family and Medical Leave Act (FMLA). After she exhausted her FMLA leave, she requested the accommodation of working from home. She provided the DOJ with a medical evaluation from her physician, “Dr. Quinn,” who was treating her for the kidney transplant complications. Quinn recommended that Harper “begin working from home doing as much as possible and slowly incorporate herself back to office hours as she gains strength and endurance.”
The DOJ granted Harper an accommodation to work from home, memorialized in a memorandum dated October 13, 2013 (the “strategy memo”). The strategy memo noted the DOJ’s intent to comply with the ADA by providing Harper “reasonable accommodations as necessary throughout her recovery,” with the goal of eventual “reintegration of her normal work hours and duties.”
The memo obligated Harper to communicate regularly with her supervisor, “Marty,” about her work product and hours and provide him medical updates every 30 days. Harper did not provide any medical updates until December 11, 2013.
In January 2014, the DOJ e-mailed Harper an “ADA Supplemental Request for Medical Status” and informed her that “specific measures will have to be taken to account for [her] hours worked and leave requested.” The DOJ also gave her a certification form to fill out and submit “before the end of each pay period.” In response to this request, Harper provided evaluations from three different physicians.
The doctors’ opinions conflicted with respect to Harper’s capacity to work in the office. Both Quinn and a “Dr. Hibbert” stated that she could begin working in the office immediately. Quinn released her to work 3 to 4 hours a day, and Hibbert said that she could work in the office “as tolerated.” A “Dr. Smith,” on the other hand, stated that she wouldn’t be able to work in the office at all for 6 months.
“Laura,” the DOJ’s director of administrative services, e-mailed Harper on February 27, 2014, seeking clarity regarding the conflicting evaluations. The e-mail stated:
Although the [doctors’] evaluations conflict in some areas, it appears that [Dr. Smith] will not release you to return to the office for six months. Your initial request to work from home was granted with the specific goal of reintegration of your normal office work hours and duties. Unfortunately, it is not possible for a litigation attorney to work from home on a long[-]term basis. Unless we receive an updated medical status evaluation from your current treating physical rehabilitation physician by Thursday, March 13, 2014, we will have no alternative but to reevaluate your employment with the [DOJ] considering your inability to perform the essential job functions of a litigation attorney.
Harper e-mailed a response explaining that the DOJ could disregard Smith’s evaluation because it was “unreasonable” and she had discharged him as her doctor. She added that she had received a release from her surgeon “to work part[-]time initially and work up [her] endurance,” which was improving, and that she was “allowed to take depositions, fly for depositions and attend hearings and trials.”
Laura met with Harper on March 3 and later summarized the meeting in an e-mail stating that Harper was required “to work up to 3-4 hours per day in the office (as tolerated)” and would “not work from home.” Harper was directed to complete leave slips for the hours she wasn’t able to work in the office. In an effort to accommodate her reduced work schedule and because she was having trouble keeping up with her caseload, her supervisor, Marty, eventually reassigned some of her cases.
Harper’s difficulty fulfilling other administrative tasks during her work-at-home accommodation was also a concern to the DOJ. Among other things, she failed to complete certain safety training exercises that all DOJ attorneys were required to perform periodically.
Harper didn’t return to the office until March 20, 2014, at which time the DOJ gave her a “last-chance agreement” (LCA). The LCA noted certain deficiencies in her performance and the corrective actions that were required of her. Among other things, the agreement cited her failure to adhere to the DOJ’s office hours policy and submit leave slips for the hours she didn’t work, her e-mail correspondence reflecting “unprofessional” behavior to Smith her superiors, and her substandard billing practices, such as block billing.
The LCA listed eight required actions, including “You will not work from home” and “The hours you work/bill will be in the office between the hours of 8:30 a.m. and 5:00 p.m. unless authority is granted otherwise.”
The LCA stated that the consequences of Harper’s failure or refusal to comply with its terms would be cause for termination. Harper refused to sign the agreement, despite repeated requests from Marty to do so and reminders that signing was “not optional.”
Harper didn’t return to work. Instead, she requested and received FMLA leave. On April 7, while she was on leave, she e-mailed the DOJ that she had a contagious infection following a hospitalization and requested that she be able to work from home. She wanted to work from home rather than remain on leave because she was getting behind on her files and she needed to get them caught up.
Two weeks later, the DOJ received a medical evaluation from a “Dr. Wentworth” stating that Harper couldn’t work in the office or attend court hearings, conferences, and depositions until she was cleared of infection. The physician noted she would be reevaluated on May 20. The DOJ denied Harper’s request to work from home but allowed her to take unpaid leave after her FMLA leave expired in June.
On August 12, Laura sent Harper a letter formally denying her request to work from home and explaining that DOJ litigation attorneys “cannot work from home on a long[-]term basis” because it “places considerable strain on supervisors and staff.” The letter further stated: “Considering that you are not allowed to attend hearings, conferences or depositions, we have accommodated you by reassigning cases which will require any of these activities.” Finally, the letter reiterated that she had failed to provide the requisite medical evaluations every 30 days and requested that she submit an updated “medical excuse/evaluation” by August 26.
On August 22, Harper presented the DOJ with a medical release that allowed her to work at the office without restrictions. She returned to the office and remained employed with the DOJ until her voluntary resignation on December 31, 2014.
However, on August 20, 2 days before she returned to work, Harper filed suit under the ADA, alleging, among other things, that she had been harassed because of her disability. The lower court dismissed her claim without a trial, finding the conduct she complained of didn’t constitute harassment, and even if it was harassment, it wasn’t sufficiently severe or pervasive to alter the terms or conditions of her employment. Harper appealed to the 5th Circuit.
5th Circuit’s Decision
Similar to an employee claiming race or sex-based harassment, Harper was required to establish her claim for disability-based harassment by demonstrating:
- She belongs to a protected group.
- She was subjected to unwelcome harassment.
- The harassment was based on her disability or disabilities.
- The harassment affected a term, condition, or privilege of her employment.
- The employer knew or should have known of the harassment and failed to take prompt remedial action.
Additionally, Harper had to demonstrate that the harassment was “sufficiently pervasive or severe to alter the conditions of employment and create an abusive working environment.” In determining whether a work environment is abusive, courts consider the entirety of the evidence in the record, including “the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance.”
In support of her claim, Harper alleged that the following actions amounted to harassment:
- Being ordered to attend the meeting with Laura on March 3, 2014;
- Being required to work at least three to four hours in the office and not work from home;
- Having her work performance criticized;
- Facing threats of termination;
- Being asked “to sign false payroll documents”; and
- Being forced to take leave without pay (LWOP) instead of FMLA leave.
She contended that those acts of harassment were so significant that they negatively affected her physical and psychological health.
In addressing Harper’s allegations, the 5th Circuit held that in light of all the facts at issue, the conduct she identified wasn’t the type of conduct that other courts have found to constitute harassment, nor was it harassment that could be deemed sufficiently severe or pervasive to create a hostile work environment.
The court noted that criticism of an employee’s work performance like the issues documented in the LCA and even threats of termination don’t satisfy the standard of proof for a harassment claim. That was particularly true because the evidence demonstrated actual deficiencies in Harper’s performance that were legitimate grounds for concern or criticism. The court further noted that none of the DOJ’s actions were “physically threatening or humiliating” or even offensive.
Harper also complained of the conditions the DOJ imposed on her throughout the process of fashioning a reasonable accommodation for her disability. For instance, she cited being called into a meeting in March 2014 to discuss her ongoing absence from the office and certain actions the DOJ required of her from that point forSmith.
During the meeting, she was told that she needed to work 3 to 4 hours a day in the office (as tolerated) and could not work from home. The court rejected her contention that the DOJ’s actions were harassment. Instead, the court recognized the employer’s actions for what they were—conditions that were part of its effort to provide her a reasonable accommodation tailored to her doctors’ orders while ensuring that she could accomplish the essential functions of her job.
The court also noted that although the DOJ had allowed Harper to work from home, it always expressed the intention that the accommodation would be temporary, with the goal of eventual “reintegration of her normal work hours and duties.” The court found the DOJ’s conduct perfectly reasonable and legitimate, especially in light of the fact that an employer is under no obligation to continue an accommodation indefinitely.
Harper argued that the DOJ’s conditions altered the terms and conditions of her employment, including her compensation. The court stated that the critical question was whether the altered conditions of employment created an abusive work environment.
According to the court, the DOJ’s imposition of reasonable work-related conditions to ease Harper’s transition back to the office after an illness didn’t constitute an abusive work environment. The court also stated that a disabled employee working under accommodations has no right to receive the same compensation she previously received.
Harper based the allegation that she was being forced “to sign false payroll documents” on the DOJ’s request that she submit leave slips for the hours she didn’t work in the office, for which she was no longer compensated. She asserted that she continued to perform work from home despite not being compensated for it. The court rejected this allegation of disability harassment as well, holding that it was Harper’s choice to submit fraudulent payroll documents and she wasn’t under any coercive pressure to do so from the DOJ.
Finally, Harper’s argument that she was forced to take LWOP appears to have been a result of the DOJ discovering that she was ineligible for FMLA leave after it had erroneously granted her such leave. The court held that mistake also didn’t constitute harassment.
In upholding the dismissal of her disability harassment claim, the 5th Circuit recognized that Harper may have perceived the conditions she was placed under to be onerous and she may have felt singled out when she was required to fulfill them.
The court also recognized that her altered accommodation may have even negatively affected her physical and psychological health. However, it held that an employee’s “subjective physical and emotional reactions” to her employer’s conduct “do not establish that the work environment would have been perceived as hostile or abusive by a reasonable employee.”
While the court commended Harper for her attempts to manage a serious illness while remaining employed, it held that the difficulties she experienced during the process didn’t convert the DOJ’s good-faith efforts at accommodation and other conduct into harassment sufficient to create a hostile work environment based on her disability. Credeur v. Louisiana,2017 WL 2704015 (5th Cir., June 23, 2017).
Takeaway
This case provides two important takeaways for employers. First, it contains great examples of the interactive process you must engage in when trying to provide a reasonable accommodation for an employee with a disability.
Second, it clarifies that deciding not to provide the accommodation an employee requests doesn’t mean you have failed in your duty to engage in the interactive process or created a hostile work environment based on the employee’s disability.
Martin J. Regimbal, a shareholder of The Kullman Firm, and an editor of Mississippi Employment Law Letter, can be reached at 662-244-8824 or mjr@kullmanlaw.com.