Ali v. Regan

111 F.4th 1264

Ghulam ALI, Appellant v. Michael REGAN, Administrator, U.S. Environmental Protection Agency, Appellee.

No. 22-5124

United States Court of Appeals, District of Columbia Circuit

Argued March 7, 2024

Decided August 9, 2024

Appeal from the United States District Court for the District of Columbia (No. 1:17-cv-01899)

Daniel S. Volchok, appointed by the court, argued the cause as amicus curiae in support of appellant. With him on the briefs was Amy Lishinski and Allison Schultz, appointed by the court.

Ghulam Ali, pro se, was on the briefs for appellant.

Rosa M. Koppel and Carolyn Wheeler were on the brief for amicus curiae the Disability Rights, Education, and Defense Fund, et al. in support of appellant.

Johnny H. Walker, III, Assistant U.S. Attorney, argued the cause for appellee. On the brief were Brian P. Hudak, Jane M. Lyons, and Sean M. Tepe, Assistant U.S. Attorneys. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Before: Millett and Pillard, Circuit Judges, and Randolph, Senior Circuit Judge.

Dissenting opinion filed by Senior Circuit Judge Randolph.

Opinion for the Court filed by Circuit Judge Millett.

Ghulam Ali has worked as a career Environmental Protection Agency ("EPA") economist since 1997. EPA had long been aware that Ali suffered from severe allergies and had provided him a workspace that for years had accommodated his health needs. Yet in 2011, EPA placed a worker known for wearing heavy perfume in the cubicle right next to Ali. Ali complained about the consequences to his health and ability to work. After agreeing that Ali's allergies were a disability that qualified for accommodation, EPA offered Ali a take-it-or-leave-it accommodation of 100% telework. Ali rejected that accommodation, sought to engage the EPA in accommodation discussions, and, when those efforts failed, filed suit under the Rehabilitation Act, 29 U.S.C. § 791.

Whether, under these circumstances, offering only 100% telework, with no in-office alternative, was a reasonable accommodation for Ali's disability depends on the resolution of myriad factual disputes. But the district court did not allow Ali's claim to reach a jury, instead concluding as a matter of law that Ali caused a breakdown in discussions with EPA and therefore bore sole responsibility for any failure to settle on an appropriate accommodation.

We reverse. We have previously held that an employee who renders an employer unable to provide an accommodation— say, by withholding relevant information that the employer requested—cannot complain that the employer denied a reasonable accommodation. See Ward v. McDonald, 762 F.3d 24, 31-32 (D.C. Cir. 2014). But Ali provided all the information that EPA requested. Ali also proposed accommodations, which EPA rejected or ignored. Then Ali, like EPA, rejected a proposed accommodation—one that would force him to leave the workplace permanently. The relevant question therefore is whether EPA's final proffered accommodation was reasonable. As to that question, there is ample record evidence that would allow a reasonable jury to rule for either party, making the district court's entry of summary judgment in favor of EPA improper.

I

The Rehabilitation Act aims to "maximize opportunities for individuals with disabilities" to participate in "competitive integrated employment" and to "ensure that the Federal Government plays a leadership role in promoting the employment of individuals with disabilities[.]" 29 U.S.C. § 701(b)(2)-(3). The Act aimed to combat discrimination against the "millions of Americans [who] have one or more physical or mental disabilities[.]" Id. § 701(a). As amended, the law recognizes that "disability is a natural part of the human experience [that] in no way diminishes" individuals' rights to "live independently[,]" "enjoy self-determination[,]" "make choices[,]" "contribute to society[,]" "pursue meaningful careers[,]" and "enjoy full inclusion and integration in the economic, political, social, cultural, and educational mainstream of American society[.]" Id.

The Rehabilitation Act's "basic tenet is that the Government must take reasonable affirmative steps to accommodate the handicapped, except where undue hardship would result." Ward, 762 F.3d at 28 (quoting Barth v. Gelb, 2 F.3d 1180, 1183 (D.C. Cir. 1993)). Those steps include implementing workplace accommodations for federal employees, whom the Rehabilitation Act, since 1992, protects according to the same "standards applied under" the American with Disabilities Act ("ADA"), 42 U.S.C. § 12111 et seq. See 29 U.S.C. § 791(f); Ward, 762 F.3d at 28.¹

The ADA, for its part, prohibits most non-federal employers from "discriminat[ing] against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). A "qualified individual" is an individual "who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." Id. § 12111(8). One form of prohibited discrimination is to "not mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability[.]" Id. § 12112(b)(5)(A).

Federal employees may sue to enforce their rights under the Rehabilitation Act. 29 U.S.C. § 794a(a)(1). To prevail, an employee must allege and prove that:

(1) he is disabled, (2) his employer had notice of the disability, and (3) the employer denied his request for a reasonable accommodation. Stewart v. St. Elizabeths Hosp., 589 F.3d 1305, 1307-1308 (D.C. Cir. 2010). The employee bears the "initial burden" of showing that a reasonable accommodation is possible. Carter v. Bennett, 840 F.2d. 63, 65 (D.C. Cir. 1988). Once that showing is made, an employer may still avoid liability by showing that the proposed accommodation would impose an "undue hardship" on the employer's operations. 42 U.S.C. §§ 12111(10)(A), 12112(b)(5)(A); see 29 U.S.C. § 791(f); Barth, 2 F.3d at 1189. An employer fully satisfies its statutory obligation by offering an accommodation that is reasonable, even if it is not the one preferred by the employee. Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1305 (D.C. Cir. 1998).

Reasonable accommodations "include * * * making existing facilities used by employees readily accessible to and usable by individuals with disabilities[.]" 42 U.S.C. § 12111(9). They also include "job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities." Id.

Equal Employment Opportunity Commission ("EEOC") regulations further specify that "reasonable accommodations" include "[m]odifications or adjustments to the work environment * * * that enable an individual with a disability who is qualified to perform the essential functions of that position," as well as "[m]odifications or adjustments that enable * * * [an] employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by [the employer's] other similarly situated employees without disabilities." 29 C.F.R. §§ 1630.2(o)(1)(ii)-(iii).

In practice, "[w]hether an accommodation is 'reasonable'" is often a fact-intensive question "determined by a close examination of the particular circumstances." Jankowski Lee & Assocs. v. Cisneros, 91 F.3d 891, 896 (7th Cir. 1996); see Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 385 (2d Cir. 1996) ("Whether or not something constitutes a reasonable accommodation is necessarily fact-specific * * * [and] must be [determined] on a case-by-case basis."). That is because "[f]ew disabilities are amenable to one-size-fits-all accommodations." Ward, 762 F.3d at 31.

Because an appropriate accommodation will often turn on specific facts concerning the employee's disability and the employer's workplace, the employee and employer frequently need to share information to find a workable solution. Ward, 762 F.3d at 31; see 29 C.F.R. § 1630.2(o)(3) (Employers may need "to initiate an informal, interactive process with the individual * * * in need of the accommodation * * * [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations."). We have described this "interactive process" as "'a flexible give-and-take' between employer and employee 'so that together they can determine what accommodation would enable the employee to continue working.'" Ward, 762 F.3d at 32 (quoting EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 805 (7th Cir. 2005)); see Mogenhan v. Napolitano, 613 F.3d 1162, 1167 & n.4 (D.C. Cir. 2010) (similar).

EEOC guidance elaborates on the process of identifying a reasonable accommodation. In many cases, "the appropriate reasonable accommodation may be so obvious" that no "step-by-step" dialogue will be needed. 29 C.F.R. pt. 1630 app. § 1630.9. For instance, when "an employee who uses a wheelchair requests that his or her desk be placed on blocks to elevate the desktop above the arms of the wheelchair and the employer complies, an appropriate accommodation has been requested, identified, and provided[.]'" Id.

In other cases, "neither the individual requesting the accommodation nor the employer can readily identify the appropriate accommodation" without dialogue. 29 C.F.R. pt. 1630 app. § 1630.9. In such cases, the EEOC guidance advises that the employer "should":

(1) Analyze the particular job involved and determine its purpose and essential functions;

(2) Consult with the individual with a disability to ascertain the precise job-related

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