Plaintiffs’ employment lawyers – unlike their defense counterparts — seemingly face two challenges litigating cases: judges ignoring facts in the record which would tend to support the plaintiffs’ claims, and giving more credibility to the testimony of employers’ witnesses than to employees’ witnesses. This lopsidedness is pronounced especially in cases involving disability discrimination, where the outcome is dependent on an in-depth analysis of all the facts in the record and according credibility where it is due – whether to the employer or employee. Recent disability discrimination cases show just how imbalanced the scales of justice are in these two respects.
Petitioner v. Department of Air Force, EEOC Petition No. 0320150024 (May 19, 2015) and Equal Employment Opportunity Comm’n v. Ford Motor Co., 782 F.3d 753 (6th Cir. April 10, 2015) both involve claims of disability discrimination based on denials of requests for reasonable accommodation.  In order to prevail on a claim of disability discrimination for an employer’s failure to accommodate the disability, the employee must show that he or she is a “qualified individual with a disability; that is, that he satisfies the requisite skill, experience, education, and other job-related requirements of the position he holds or desires and can perform the essential functions of the position with or without reasonable accommodation.” 29 C.F.R. §§ 1630.2(m), 1630.3. After the employee makes that requisite showing, the burden shifts to the employer to show that granting the reasonable accommodation would cause the employer an undue hardship.  With advances in technology, requests for telework as a reasonable accommodation have become increasingly prevalent.  The most significant challenge for employees who request telework as a reasonable accommodation consists of proving that the employee can perform the essential functions of his or her position while teleworking. Who knows more about what the essential functions of the employee’s position are: the employee or the employer? And which party’s evidence of those essential functions is a judge more likely to credit: the employee or the employer?
In Department of Air Force, the employee asked for, among other things, telework as a reasonable accommodation for his Obsessive-Compulsive Disorder (OCD). The Air Force denied his request and ultimately removed him from service due to unacceptable performance. The employee appealed to the Merit Systems Protection Board, claiming disability discrimination as an affirmative defense to his removal. At the initial hearing, the MSPB judge upheld the Agency’s removal and found no discrimination because the requested accommodation would not allow the employee to perform the essential functions of his position as a Patent Attorney. See Hersko v. United States Air Force, MSPB No. CH-0432-13-0493-I-I (April 2, 2014). The MSPB judge concluded that, “[i]n light of the appellant’s poor pre-PIP performance, his difficulty to focus on his work, the absence of interaction with his supervisor and his coworkers while teleworking, his unexplained periodic and numerous absences from his office during his work day, and his actual absence from home while teleworking, I find that teleworking was not an accommodation that would assist the appellant in performing the duties of his position.” Id.

After the full Board MSPB denied the employee’s petition for review, Mr. Hersko appealed to the Office of Federal Operations. Concurring with the final decision of the MSPB finding no disability discrimination, the Commission stated, “we emphasize that the MSPB AJ [Administrative Judge] credited the testimony of several management officials in finding that Petitioner had previous difficulties with time and attendance, telework, and time and attendance during telework. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it.” Department of Air Force, EEOC Petition No. 0320150024, at *4. The Commission further noted that the “MSPB AJ expressly characterized S2’s testimony as ‘straight forward and consistent,’ and that the MSPB AJ “cited documentary evidence supporting the testimony of the management officials.” Id.

What is glaringly absent from both the analysis of the MSPB and the Commission is any recognition of the medical evidence submitted by Mr. Hersko’s doctors that telework was a reasonable accommodation for his OCD. Mr. Hersko’s psychiatrist had submitted a letter to the Agency, stating that Mr. Hersko’s medication caused him to tire easily, and that this fatigue, “combined with the appellant’s high level of anxiety and his difficulty controlling his worries, could make it difficult for the appellant to concentrate and focus on his job duties.” Hersko, MSPB No. CH-0432-13-0493-I-1. After Mr. Hersko made his request for reasonable accommodation, Mr. Hersko’s supervisor asked the Commander of the Occupational Medicine Flight to provide information on how his medical condition affected his ability to perform the essential functions of his position. The Commander responded that Mr. Hersko had OCD with associated depression and insomnia. He further stated that the “OCD could occupy significant amounts of the appellant’s time during the day and could reduce his productivity, but also could contribute to highly detailed and technical work.” Id. He also said that Mr. Hersko “requested commonly used modifications for someone with OCD:…teleworking that could increase his sleep time because he would not have to commute a total of two hours per day.” Id. Notwithstanding this clear evidence in the record, the MSPB AJ stated, “[n]either doctor addressed accommodations for the appellant’s OCD-associated depression.” Id.

Following the MSPB AJ, nowhere in its Decision did the Commission acknowledge the evidence of Mr. Hersko’s psychiatrist or the Commander. Rather, the Commission referred to the following facts found by the MSPB AJ: “Petitioner’s observation of the Agency’s duty hours was worse than when he was present in the office…Prior to his 2012 PIP, Petitioner did not always attend to his duties, spent excessive time in the break room or in the exercise facility, spent considerable time wandering the hallways and away from his office with his whereabouts unknown, and was observed sleeping in his office.” Department of Air Force, EEOC Petition No. 0320150024, at *1. Concurring with these factual findings, the Commission disregarded Mr. Hersko’s psychiatrist’s statement to the Agency that Mr. Hersko’s OCD caused him to experience high levels of anxiety and to have difficulties concentrating and focusing on his job duties, as well as the Commander’s recommendation that telework could address Mr. Hersko’s fatigue.
It`s surprising that the EEOC would permit an Agency to use a person’s disability against them in finding performance issues, when a reasonable accommodation exists that would alleviate those performance issues and enable the employee to perform the essential functions of his or her positon.  In fact, Judge Moore argued to the contrary in her dissent in Ford: “It would be inconsistent with the purposes of the ADA [Americans with Disabilities Act] to permit an employer to deny an otherwise reasonable accommodation because of past disciplinary action taken due to the disability sought to be accommodated.” EEOC v. Ford Motor Co., 782 F.3d at 777.
In Ford Motor Co., Ms. Harris asked Ford for telework to accommodate her disability of irritable bowel syndrome (IBS). Ford denied her request, claiming that her position as a resale buyer of steel required regular in-person interaction with her co-workers, such that regular and predictable attendance in the workplace was an essential part of her position. Id. at 758. The EEOC appealed the district court’s grant of summary judgment to Ford. After a three-judge panel of the Sixth Circuit ruled in favor of the EEOC (opinion by Judge Karen Nelson Moore), the full court of appeals vacated the three-judge panel ruling and affirmed the district court’s grant of summary judgment to Ford, finding no disability discrimination because the requested reasonable accommodation of telework would not have enabled Ms. Harris to perform the essential functions of her position. What is most significant about the Ford case is Judge Moore’s blistering dissent, criticizing the full panel for its failure to undergo the very fact-intensive analysis required of disability discrimination cases when it did not consider facts in the record brought forward by Ms. Harris, and for its propensity to side with Ford by failing to give to Ms. Harris the required inferences from the facts in her favor. Id. at 771.
The Sixth Circuit accepted Ford’s contention that it could not grant Ms. Harris’s request for telework of four days a week, because of the “high level of interactivity and teamwork” involved in her position. Ford, 782 F.3d at 758. In accepting this contention, the Sixth Circuit looked at Ford’s evidence that other resale buyers of steel only teleworked one day per week. Id. at 763. What the Sixth Circuit ignored, and what Judge Moore pointed out in her dissent, was evidence in the record showing that Ms. Harris had requested up to four days a week telework, which was consistent with Ford’s telework policy. Id. at 771. As Judge Moore stated, “[i]t is crucial to begin with what Harris actually requested.” Id. Ms. Harris was not demanding four days a week telework, despite the Sixth Circuit’s summary and erroneous conclusion to the contrary.
Judge Moore also pointed out that the majority failed to consider the EEOC’s evidence which directly contradicted Ford’s claim that the teamwork functions of Ms. Harris’s job required her to be physically present in the office. The first piece of evidence was Ms. Harris’s declaration that she actually performed 95% of her job on the phone or through email, even when she was physically working in the office. The second piece of evidence was that Ford allowed other resale buyers to telework, which suggested that, in order to perform effectively, resale buyers did not need to be prepared to handle unexpected problems through face-to-face interactions every day of the week, as Ford claimed they did. Id. at 772.

Judge Moore summed up the problem quite well: “What appears to be driving the majority’s unwillingness to give any weight to Harris’s own testimony is an unstated belief that the employee testimony is somehow inherently less credible than testimony from an employer. Employers, just as much as employees, can give testimony about whether a particular function is essential that is ‘self-serving,’ or not grounded in reality.” Ford, 782 F.3d at 773. Judge Moore understands the imbalance that is nearly omnipresent in disability discrimination cases.

Written by Valerie Chastain