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In the case of Brown vs. Austin, the Tenth Circuit found that an employee’s telework, weekend work, and supervisor change request were unreasonable under the Federal Rehabilitation Act and that the employee had failed to allege a prima facie case of disability discrimination, retaliation, or constructive discharge.

Here’s what happened:  Alfred Brown worked for the Defense Health Agency (DHA), an agency of the U.S. Department of Defense, from April 2010 until his resignation in 2014.  He served on a four-person team and was responsible for coordinating with various law-enforcement agencies to investigate fraud in the military healthcare system.  Brown informed his supervisors that he had “posttraumatic stress disorder and other panic and anxiety disorders related to his military service.”  He said these conditions affected his ability to manage stress, concentrate, and communicate, and that stressful environments can aggravate his symptoms and sometimes cause panic attacks. Despite his disabilities, Brown received satisfactory performance reviews.

Within the first two years of Brown’s employment with the agency, he was granted leave under the Family and Medical Leave Act (FMLA) to receive medical treatment for his conditions and upon his return he ultimately was approved for an additional 12 weeks under the (FMLA).  But in May 2012, citing his conditions, Brown requested to work from home twice a week and work weekends to make up time lost during the week.  Although the agency denied his request, it permitted him to work from home once a week.  The company went as far as to eliminate his air travel, raise the walls on his cubicle, provide him noise-cancelling headphones and allowed unpaid wellness breaks, all of which he rejected.

Brown also requested a transfer to another supervisor’s team, citing strained relationships with his supervisors, but the agency rejected his request citing “lack of available positions” on other teams. Eventually Brown was placed on “Paid Administrative” leave pending an investigation into a scuffle he had with a supervisor.  Brown eventually returned back to work but was given a reprimand letter.  Soon thereafter, Brown resigned claiming the denial of his transfer was driven by “bias and prejudicial motives” and nine days later he filed suit against 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 of Brown’s claims, holding “there were no triable issues” on Brown’s claims that the agency failed to accommodate his mental health disabilities, discriminated against him based on those disabilities, subjected him to retaliation or constructively discharged him.  Brown, undeterred, appealed the decision, challenging the court’s ruling that his requests for telework, weekend work, and supervisor reassignment were not reasonable accommodations and that he failed to establish a “prima facie” case of disability discrimination, retaliation, and constructive discharge.

With the September 15, 2021, ruling, the Court of Appeal concluded that “Brown failed to establish a genuine dispute of material fact on his Rehabilitation Act claims and that Brown’s telework, and weekend request would have eliminated an essential function of his job-being present in the office at least four days per week and were therefore unreasonable accommodation requests.  Further, Court of Appeal agreed with the underlying court that Brown did not allege circumstances that would have required the Agency to consider reassignment as an accommodation, given that he was performing the essential functions of his current job with other accommodations, stating “we have recognized such heightened accommodation requirement only in the limited circumstance where an employee requested a transfer for medical care or treatment; we decline Brown’s invitation to expand those circumstances to include reassignments that allow an employee to live a “normal life.”  As for Brown’s disability/discrimination claims, the court held that “Brown has not alleged a prima facie case of retaliation or disparate treatment because none of the Agency’s challenged conduct constitutes materially adverse action.  Nor has he shown that a constructive discharge occurred as he alleges no facts showing that working conditions at the Agency were objectively intolerable.”

Employers should carefully consider each and every employee’s accommodation requests and make sure they are following all policies and procedures of the Rehabilitation Act to provide reasonable accommodation.  Here at Epps & Coulson, LLP we understand these issues may be confusing.  We are available to advise.  Feel free to contact Dawn:


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