Rittelmeyer v. Univ. of N. Carolina at Chapel Hill

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA15-1228

Filed: 21 March 2017

Wake County, No. 14 CVS 9915

JENNIFER RITTELMEYER, Petitioner

v.

UNIVERSITY OF NORTH CAROLINA at CHAPEL HILL, Defendant.

Appeal by petitioner from order entered on or about 19 June 2015 by Judge

Paul G. Gessner in Superior Court, Wake County. Heard in the Court of Appeals 21

February 2017.

Edelstein and Payne, by M. Travis Payne, for petitioner-appellant.

Attorney General Joshua H. Stein, by Special Deputy Attorney General

Kimberly D. Potter, for respondent-appellee.

STROUD, Judge.

This case arises from petitioner’s appeal from a trial court order affirming the

administrative law judge’s decision to affirm respondent’s termination of petitioner’s

employment. Because the administrative law judge’s order was based upon

substantial evidence and was in accord with the applicable law, and the trial court

conducted a proper review of the administrative law judge’s order, we affirm the trial

court order.

I. Background

RITTELMEYER V. UNIV. OF N. CAROLINA AT CHAPEL HILL

Opinion of the Court

This summary of the facts is based upon the administrative law judge’s (“ALJ”)

findings of fact in the final agency decision (“decision”). The ALJ made 260 findings

of fact -- approximately 40 pages, single-spaced -- detailing the history of petitioner’s

light sensitivity all the way back to her “late teens” when she first noticed the

problem, through her employment with respondent, and up to the inception of her

claim. Upon petition to Superior Court, the trial court found that there was

substantial evidence to support all of the findings of fact. Petitioner has, in one

cursory final issue, challenged many of these extensive findings of fact on appeal, but

because she has failed to properly present this argument on appeal, as discussed

below, we accept the ALJ’s findings of fact as binding upon this Court.1 Garrett v.

Burris, 224 N.C. App. 32, 34, 735 S.E.2d 414, 416 (2012), aff'd per curiam, 366 N.C.

551, 742 S.E.2d 803 (2013) (“Plaintiff does not challenge any of the trial court’s

findings of fact as unsupported by the evidence. These findings, therefore, are

binding on appeal.”). The decision shows that petitioner’s employer took many

actions to accommodate her light sensitivity throughout the entire process of their

working relationship. We will not list every single accommodation respondent made

for petitioner for the sake of brevity but will note many of them.

1Petitioner notes in her statement of the facts in her brief that she has relied upon “Petitioner's

Proposed Decision submitted at OAH, which is included in the Rule 11(c) Supplement[.]” (Emphasis

added.) As discussed below, we deem petitioner’s arguments regarding the findings of fact abandoned,

and we have relied upon the ALJ’s order.

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In August of 2002, petitioner was hired by respondent’s Department of

Medicine and Genetics to work as a part-time, temporary administrative assistant.

Petitioner informed Ms. Sikes, petitioner’s supervisor, that exposure to fluorescent

lights caused her to have migraine headaches.2 In 2004, petitioner became a

permanent employee as a social clinical research assistant. Between approximately

2002 and 2004, Ms. Sikes informally accommodated petitioner’s light sensitivity by

allowing her to work in an office with a window where petitioner could use the natural

light and avoid turning on her overhead lights. In 2005, petitioner’s entire

department moved to a new building where petitioner’s new work station was in a

cubicle. To accommodate petitioner, the overhead lights in the general work area

remained off and this lack of lighting did to some extent affect other employees. In

2010, the department was scheduled to move again and Ms. Sikes suggested

petitioner check out the new workspace and allowed her “to design her own work

space[.]”

In February 2010, the department moved and for “the first time all [of] the

genetic counselors were working together in one shared space.” Most of the

employees were in cubicles. Petitioner was working in a cubicle directly across a

corridor from Ms. Sikes’s office. In her office, Ms. Sikes used only one of her two sets

of overhead florescent lights. The overhead lights over the entire cubicle area were

2 We have used pseudonyms for the other employees to protect their privacy.

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initially kept off, while another department, sharing the same overall space but not

grouped with petitioner’s department, kept the lights on over their workspace.

Although the main lights over petitioner’s workspace were turned off, petitioner was

still exposed to fluorescent lights from the other department’s lights, the emergency

lights, bathroom lights, and lights by the elevator. Respondent then disengaged some

of the emergency lights around petitioner’s cubicle. Other employees began using

floor and desk lamps in their workspaces to accommodate the dark conditions.

Petitioner also began complaining about sensitivity to fragrances, so respondent

posted signs asking the employees to cease wearing scented products. Overall, during

the time period from moving into the new space in February of 2010, until November

of 2011, the department effectively completed its work.

During this same time period, respondent also had to make constant

adjustments to the lighting due to complaints by other employees that their work

areas were too dark. Petitioner specifically complained that she had headaches

caused by the supplemental lighting in the cubicle adjoining hers, where Ms. Lee

worked. Because it was closest to petitioner’s cubicle, Ms. Lee’s cubicle was the

darkest workspace. Ms. Lee tried different combinations of lighting and changed

light bulb wattages, but petitioner remained dissatisfied.

In November of 2011, while petitioner was on vacation and without Ms. Sikes’s

knowledge, Ms. Lee submitted a work order to have the overhead lights above

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petitioner’s cubicle and directly to the left and right of it disabled. Once this was

done, the department began using the overhead lights again since the overhead lights

in petitioner’s immediate vicinity were disabled. On 19 November 2011, petitioner

went to work but eventually got a headache that lasted until the next day. On 21

November 2011, petitioner informed Ms. Sikes that the new lighting conditions would

not work for her. Ms. Sikes contacted respondent’s disability office for assistance. A

formal request from petitioner was needed to begin disability accommodations, so on

27 November 2011, petitioner expressed her desire to move forward with the formal

accommodation process.

On 30 November 2011, Ms. Phillips, the employee working with petitioner and

respondent from the disability’s office, responded to petitioner about beginning the

formal process of accommodation. On 6 December 2011, petitioner submitted a form

to Ms. Phillips requesting accommodations and provided a letter from her doctor

regarding her sensitivity to light. Ms. Phillips began corresponding with many

individuals about accommodations, and during this time petitioner asked on multiple

occasions that all overhead lights be turned back off, but this request was not initially

allowed. Ms. Phillips then suggested perhaps petitioner could work from home, but

petitioner refused. In December of 2011, Ms. Lee was moved to a different workspace

so that all of the lights could remain off while petitioner was at work.

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On 12 January 2012, respondent installed panels on top of petitioner’s cubicle

to block out the overhead lights from other areas. Tack boards were then added on

top of the panels to block more light. The lights immediately above and around

petitioner’s cubicle remained disengaged, but the following day, petitioner said the

modification did not work. On 17 January 2012, petitioner again requested the

overhead lights in the entire area remain off until a solution could be found. Ms.

Phillips informed Ms. Sikes that petitioner would come back to work on 19 January

2012, if the lights were turned off for her, but Ms. Sikes did not agree.

Petitioner then refused to allow Ms. Phillips to speak to her healthcare

provider about other possible accommodation options and rejected the idea of room-

darkening glasses. Petitioner also again rejected the idea of working from home. On

20 January 2012, taller partitions were installed to the cubicle to raise the walls; new

tack boards were also installed. Petitioner’s cubicle walls were approximately nine

feet high at this point.

During January and February of 2012, petitioner attended work sporadically

and suffered from a migraine “essentially every day she tried to work[.]” During

February of 2012, petitioner still refused to work from home or to allow Ms. Phillips

to speak with her healthcare provider. On 10 February 2012, solid panels were

installed from the floor to the ceiling on petitioner’s cubicle; part of the cubicle had

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been left open during the prior modification at petitioner’s request because she

wanted to allow natural light from that area.

On 14 February 2012, petitioner claimed the accommodation did not work,

continued to complain about Ms. Lee’s supplemental lighting, and claimed she could

not walk to areas like the copier and scanner. Respondent then moved the copier and

scanner into petitioner’s “darkened area[.]” Petitioner then requested Ms. Sikes put

up black paper to block the lights from her office, although these lights had never

been a problem before, and she also requested breaks. The next day, on 15 February

2012, all of the cubicle walls were raised to the ceiling; this same day petitioner

requested that the gaps where the walls touched the ceiling be duct taped and that

Ms. Sikes keep her office door closed. Petitioner still believed Ms. Lee’s supplemental

lighting was part of her problem though petitioner was never clear on the source of

her problem and complained about issues which she had originally not mentioned.

On 17 February 2012, petitioner requested a door and a roof for her cubicle,

but Ms. Phillips declined these accommodations since petitioner’s workspace was now

much darker than it had been before November of 2011 when the formal

accommodation process began. Also, the additions to the walls already reached the

ceiling. Petitioner also made modification requests prior to the previous set of

requests even being made. Ultimately in late February 2012, petitioner requested

leave under the Family Medical Leave Act which was approved from 22 February

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2012 to 21 May 2012. The communications regarding modifications continued and

respondent made numerous other modifications.

On 9 March 2012, petitioner requested a transfer to another position;

respondent denied this request but informed her that she was free to apply for any

position she desired. During her leave, petitioner wore special room-darkening

glasses to block fluorescent light, although when she had been at work she

complained they made her nauseous. On 21 May 2012, petitioner returned to work

and acknowledged her workspace was much darker than it had been in November of

2011, but petitioner’s sensitivity to light had increased. On 24 May 2012, petitioner

left work early due to a migraine; the next day, petitioner left work at 9:00 a.m. On

29 May 2012, petitioner again requested that Ms. Sikes be required to keep her door

closed, and this accommodation was denied.

After 1 June 2012, petitioner began reporting to work even less than she had

been despite her workspace being its darkest yet. On 13 June 2012, petitioner

received a written warning due to her absences. On 18 June 2012, petitioner applied

for Family Illness Leave which was approved for two days. Thereafter, petitioner

continued to miss work frequently. On 24 July 2012, respondent gave petitioner four

weeks of leave without pay from 16 July 2012 until 12 August 2012. After 24 July

2012, petitioner stopped communicating with respondent and failed to return to work.

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On 14 August 2012, petitioner’s employment was terminated. Up until this point,

the accommodation process was still ongoing and had not stopped.

On 4 September 2012, petitioner filed a petition for a contested case hearing

contending that respondent “failed to accommodate” her disability. Petitioner further

explained that respondent

[g]ave her an unjustified final written warning, and

terminated her as of August 14, 2012, when she could not

return to her job following a period of leave without pay.

Petitioner was unable to return to her job because of her

Employer’s failure to appropriately and adequately

accommodate her disability, which resulted in Petitioner

suffering server[e] migraine headaches and eye pain after

a short time each day at her job.

Petitioner has initiated a grievance concerning her

discharge and under the UNC Grievance Procedure. That

grievance raises the issue of lack of just cause for the

discharge as well as the issues that the discharge violates

Petitioner’s rights under the Americans with Disabilities

Act and the Family Medical Leave Act. To the extent that

grievance is unsuccessful, once the process is complete,

Petitioner will file a Petition for a Contested Case on those

matters and move to join them with this petition.

On 31 January 2013, petitioner did just that and filed a petition for a contested case

hearing regarding her grievance which had been denied; petitioner moved to have the

two petitions joined. On or about 26 February 2013, the chief ALJ consolidated the

two petitions.

Over the course of five days in October and November of 2013, an ALJ heard

petitioner’s case. In June of 2014, the ALJ entered a 60-page decision ultimately

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determining all issues in favor of respondent. On 24 July 2014, petitioner filed a 54-

page petition with the Superior Court for review from the ALJ decision. On 22 August

2014, respondent responded to petitioner’s petition, requesting that the trial court

affirm the ALJ decision. In June of 2015, the trial court entered an order affirming

the ALJ decision. Petitioner appeals.

II. Standard of Review

When the trial court considered the final agency decision its standard of review

was provided by North Carolina General Statue § 150B-51:

(b) The court reviewing a final decision may

affirm the decision or remand the case for further

proceedings. It may also reverse or modify the decision if

the substantial rights of the petitioners may have been

prejudiced because the findings, inferences, conclusions, or

decisions are:

(1) In violation of constitutional

provisions;

(2) In excess of the statutory authority or

jurisdiction of the agency or administrative law judge;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Unsupported by substantial evidence

admissible under G.S. 150B-29(a), 150B-30, or 150B-31 in

view of the entire record as submitted; or

(6) Arbitrary, capricious, or an abuse of

discretion.

(c) In reviewing a final decision in a contested

case, the court shall determine whether the petitioner is

entitled to the relief sought in the petition based upon its

review of the final decision and the official record. With

regard to asserted errors pursuant to subdivisions (1)

through (4) of subsection (b) of this section, the court shall

conduct its review of the final decision using the de novo

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standard of review. With regard to asserted errors

pursuant to subdivisions (5) and (6) of subsection (b) of this

section, the court shall conduct its review of the final

decision using the whole record standard of review.

N.C. Gen. Stat. § 150B-51 (2013).

As to this Court’s review,

[a] party to a review proceeding in a superior court

may appeal to the appellate division from the final

judgment of the superior court as provided in G.S. 7A-27.

The scope of review to be applied by the appellate court

under this section is the same as it is for other civil cases.

In cases reviewed under G.S. 150B-51(c), the court’s

findings of fact shall be upheld if supported by substantial

evidence.

N.C. Gen. Stat. § 150B-52 (2013). Furthermore,

[a]n appellate court reviewing a superior court order

regarding an agency decision examines the trial court’s

order for error of law. The process has been described as a

twofold task: (1) determining whether the trial court

exercised the appropriate scope of review and, if

appropriate, (2) deciding whether the court did so properly.

When, as here, a petitioner contends the agency’s decision

was based on an error of law, de novo review is proper.

Holly Ridge Assocs., LLC v. N.C. Dep’t of Env’t & Natural Res., 361 N.C. 531, 535,

648 S.E.2d 830, 834 (2007) (citations, quotation marks, and brackets omitted).

In summary, as this case is being reviewed pursuant to North Carolina

General Statute § “150B-51(c), the [trial] court’s findings of fact shall be upheld if

supported by substantial evidence.” N.C. Gen. Stat. § 150B-52. Alleged errors of law

will be reviewed de novo. Holly Ridge Assocs., LLC., 361 N.C. at 535, 648 S.E.2d at

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834. Furthermore, we will review the trial court order to determine “whether the

trial court exercised the appropriate scope of review and, if appropriate, . . . whether

the court did so properly[.]” Id.

More specifically, as to our review of the trial court’s scope of review, if the

argument raised before the trial court asserted an error with the agency decision

which was “(1) [i]n violation of constitutional provisions; (2) [i]n excess of the

statutory authority or jurisdiction of the agency or administrative law judge; (3)

[m]ade upon unlawful procedure; [or] (4) [a]ffected by other error of law[,]” we will

review to consider whether the trial court properly used “the de novo standard of

review.” N.C. Gen. Stat. § 150B-51(c). If the argument raised before the trial court

asserted an error with the agency decision which was “[u]nsupported by substantial

evidence admissible under G.S. 150B-29(a), 150B-30, or 150B-31 in view of the entire

record as submitted; or . . . [a]rbitrary, capricious, or an abuse of discretion[,]” we will

review to consider whether the trial court properly used “the whole record standard

of review.” Id.

III. Petitioner’s Appeal of Findings of Fact

Petitioner raises 14 issues on appeal. Petitioner’s brief puts the cart before the

horse by waiting until the last issue to raise any challenges to the findings of fact.

Since findings of fact are required to support conclusions of law, see Beaufort Cty. Bd.

of Educ. v. Beaufort Cty. Bd. of Comm’rs, 184 N.C. App. 110, 116, 645 S.E.2d 857, 861

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(2007) (“The trial court’s findings of fact must support its conclusions of law in order

to enter a lawful order.”), if the findings of fact were not supported by substantial

evidence, see generally N.C. Gen. Stat. § 150B-52, it would have been helpful for

petitioner to challenge those facts before addressing alleged errors of law. After all,

if material facts in the findings were not supported by the evidence, we might never

need to reach at least some of the arguments regarding errors of law. Thus, we will

first address the last issue which purports to challenge many of the ALJ’s findings of

fact. Petitioner’s entire argument is as follows:

Petitioner excepted in whole or in part to Findings

13, 24, 29, 30, 33, 36, 37, 53, 62, 67, 86, 90, 114, 115, 122,

123, 125, 127, 136, 137, 138, 140, 141, 142, 143, 144, 145,

146, 152, 189, 196, 203, 205, 209, 221, 222, 258, 259 and

260 [R. pp. 9-20]. The specifics as to what portion of each

Finding exception was taken, is set out in each of the

paragraphs of the Petition. Additionally, evidence that

each Finding is at least in part wrong, is cited in each of

the paragraphs. The exceptions to the specified Findings

are well taken, and under the whole record test they should

have each been modified or deleted.

At pages 17-45 of her Petition [R. pp. 20-48],

Petitioner set forth 99 additional proposed Findings that

are supported by the Record. Each of those proposed

Findings cites to the evidence that supports it. They are all

appropriate and they should be adopted.

As tempting as it may be, we decline petitioner’s invitation to comb through

over 1,000 pages of exhibits and her “99 additional proposed Findings” to find the

substantial evidence, or lack thereof, to support the ALJ’s 260 findings of fact or some

portions of those findings; that is petitioner’s job. See generally Carlton v. Oil Co., 206

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N.C. 117, 172 S.E. 883, 884 (1934) (“[O]n appeal the burden is on appellant to show

error[.]”) Petitioner likely relegated her challenge to the findings of fact to her last

issue because even she acknowledges that the changes to the findings she requests

are not really material changes that would make any difference in the legal analysis;

she recognizes this in footnote 22 of her brief:

The reference to “FOF” is to the Findings of Fact in the

Decision. While Petitioner has asserted that some findings

are not supported by the evidence, and that other findings

should have been made, the Decision appears to contain

sufficient findings to support the errors of law that

Petitioner has raised. It is possible this Court could agree

with Petitioner regarding the legal errors that she has

raised, and fashion conclusions of law that are supported

by the existing Findings of Fact.

(Emphasis added.) We also note that our rules impose page limitations on briefs, see

N.C.R. App. P. 28(j), as petitioner pointed out in her statement of the facts, but

petitioner’s argument essentially seeks to add many, many pages to her brief by

referring us to her lengthy submissions to the ALJ and trial court.

But as to petitioner’s argument which refers us to the other documents in the

record, we have read petitioner’s petition to the trial court from the ALJ order and

most of petitioner’s contentions are not that the ALJ’s findings of fact were not

supported by the evidence, but rather further details petitioner would like to add to

each finding of fact. For example, finding of fact 33 in the ALJ decision was as follows:

33. At first, [Ms. Lee] had only one supplemental

lamp, but that amount of light was insufficient. (Tr. 608).

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[Ms. Lee] then tried two lamps, but the lighting bothered

Petitioner, so [Ms. Lee] switched the bulbs to a lower

wattage. Id. Petitioner continued to express dissatisfaction

with the lights used by [Ms. Lee].

Petitioner’s exception to this finding was as follows:

21. To Finding of Fact #33 in that it does not

accurately reflect the number and type of supplemental

lights that [Ms. Lee] had, which were 2 floor lamps and 2

desk lamps; and it ignores the evidence that every cubicle

had an under-the-shelf fluorescent light that allowed

employees to have substantial light shine on matters on

which they were working, which [Ms. Lee’s] cubicle also

had.

In the context of this order, in which many other findings of fact describe the

lighting conditions over time in great detail, we cannot see how the additional details

of exact numbers of lamps and bulb types would have any effect upon the result. As

to petitioner’s highly detailed argument to portions of the findings of fact, we note

that the findings of fact do not need to include every evidentiary fact, but only those

necessary for the ultimate determination. See generally Kelly v. Kelly, 228 N.C. App.

600, 606–07, 747 S.E.2d 268, 276 (2013) (“[T]he trial court need not recite all of the

evidentiary facts but must find those material and ultimate facts from which it can

be determined whether the findings are supported by the evidence and whether they

support the conclusions of law reached.” (citation omitted)).

Because petitioner has failed to specifically raise an argument on appeal to any

particular finding of fact, has failed to direct us to any particular portion of the record

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to consider a challenge to even one finding of fact, has failed to address any particular

finding of fact as not supported by the evidence, and has failed to raise any issues

with the findings of fact which she contends are material, we conclude that petitioner

has abandoned her argument challenging the findings of fact. We will therefore

accept all of the findings of fact made by the ALJ as supported by substantial

evidence, see generally Garrett, 224 N.C. App. at 34, 735 S.E.2d at 416, and we will

proceed to address petitioner’s legal arguments.

IV. Petitioner’s Appeal of Conclusions of Law

Petitioner challenges many of the ALJ’s 49 conclusions of law in her remaining

13 issues presented in her brief on appeal. The conclusions of law she challenges are

as follows:

9. In this case, Petitioner was “unavailable” as

(1) she was unable to return to all the position’s essential

duties and work schedule due to her medical condition that

caused headaches and eye pain to be triggered by

fluorescent lights, and (2) Petitioner and Respondent were

unable to agree upon a return to work arrangement that

met the agency’s needs and Petitioner’s medical condition.

By the date of her separation, Petitioner had no leave time

to cover her absence.

10. Respondent met the requirements for

properly separating Petitioner due to her unavailability

after leave was exhausted. Respondent provided the

appropriate notifications to Petitioner, awarded her four

weeks of additional leave once Petitioner informed her

supervisors that she was applying for short-term disability,

and informed Petitioner that she was to return to work

August 13, 2012 if she hadn’t notified them of her short-

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term benefit application.

11. The facts are clear and disputed that

Respondent took reasonable efforts to avoid separating

Petitioner from employment by notifying Petitioner that

she had exhausted all applicable leave. Respondent

granted Petitioner four additional weeks of leave without

pay when it was not required to do so. Respondent’s efforts

to avoid separating Petitioner from employment were

unsuccessful, because Petitioner, by her own volition,

ceased contact with Respondent, and failed to return to

work. Petitioner knew she needed to contact [Ms. Sikes] . .

. regarding her short-term disability application, or return

to work by August 13, 2012. Petitioner understood that her

failure to report on August 13, 2012 would result in her

being involuntarily separated from employment due to

unavailability. Yet, Petitioner did not report to work on

August 13, 2012 or contact her supervisors. The

preponderance of the evidence proved that Petitioner’s

actions justified Respondent involuntarily separating

Petitioner from employment.

12. Based on a preponderance of the evidence, all

foregoing Findings of Fact and Conclusions of Law,

Respondent properly separated Petitioner from

employment due to Petitioner’s unavailability after

approved leave was exhausted under 25 NCAC .01C. 1007.

....

19. The Fourth Circuit has held that an employee

who cannot meet the attendance requirements of a job is

not considered a qualified individual covered by the ADA.

(See Tyndai v. Nat'l Educ. Ctrs., 31 F.3d 209, 213 (4th Cir.

1994)) In Bell, supra. at 1-3, the US District Court for the

Middle District of North Carolina held that since the

Plaintiff had been absent without leave for months, and

indicated she would continue to be out indefinitely,

Defendant was not as a matter of law required to offer

Plaintiff leave as a reasonable accommodation for her

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disability. Id. That Court further provided that, because

the Plaintiff was not able to perform the essential functions

of any job, the Defendant could not be liable because “an

employer who fails to engage in the interactive process will

not be held liable if the employee cannot identify a

reasonable accommodation that would have been possible.”

Id. at 20. (quoting Wilson v. Dollar Gen. Corp., 717 F.3f[d]

337, 347 (4th Cir. 2013)[.]

20. In this case, Petitioner was employed on a

full-time basis by Respondent yet routinely failed to work

even 32 hours in a workweek. (Pet. Exs. 61-62) Her poor

attendance alone means that she is not a qualified

individual. However, she claims that her absences were

due to exposure to fluorescent lighting in her work

environment, even though she was exposed to fluorescent

lighting in the same building for more than one year before

November 2011. Petitioner admitted that after late

November 2011, she would come to work and routinely

notify her supervisor that she had a migraine and had to

leave. Respondent had to rely, necessarily, on Petitioner’s

subjective reports regarding her pain. Even with these

reports, Respondent was still entitled to have reasonable

work expectations for Petitioner’s attendance.

21. After returning without any restrictions from

her twelve weeks of FMLA in May 2012, Petitioner

immediately had attendance problems, and was counseled

about the importance of being at work. Respondent made

it clear to Petitioner that she must adhere to her approved

work schedule to “ensure we have the office and phone

coverage necessary during normal/working business

hours.” (Resp. Ex. 79) Petitioner’s attendance continued to

be sporadic, and fell considerably short of either a 32 or 40-

hour workweek requirement. (Pet. Exs. 61 & 62) Since

Petitioner refused to allow Respondent to speak with the

medical providers, Respondent did not know that Dr.

Kylstra meant Petitioner remained unable to work with

fluorescent lights.

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22. Petitioner failed to produce any binding legal

precedent to support her allegation that her work

environment aggravated her disability, and caused her

absences.

23. Cases in the Fourth Circuit have held that the

cause of Petitioner’s incapacity is irrelevant to whether she

is able to perform the essential duties of her job, especially

in absen[ce of] any bad faith on Respondent’s part. An

employer does not violate the ADA[] when it “discharges an

individual based upon the employee’s misconduct, even if

the misconduct is related to a disability.” Rocha v. Coastal

Neuropsychiatric Crisis Servs. PA, 7:12-CV-2-D, 2013 WL

5651801 (ED NC Oct 16, 2013) (citing Jones [v]. Am. Postal

Workers Union, 192 F.2d 417, 429 (4th Cir. 1999)).

24. Discharging an individual because of the

specific attributes of a disease, (for instance, firing an

employee with epilepsy for seizures) is fundamentally

different than firing an employee for disability-related

misconduct that is not itself the disability. Martinson v.

Kinney Shoe Corp.[,] 104 F.3d 683, 686 (4th Cir. 1997) The

Martinson Court further held that, “By contrast,

misconduct - even misconduct related to a disability - is not

itself a disability, and an employer is free to fire an

employee on that basis.” Id. at 686. (citing Tyndall, supra.

at 214). The Tyndall Court ruled that:

Because [the employee’s] attendance

problems rendered her unable to fulfill the

essential functions of her job, and because

these problems occurred even with [her

employer’s] more than reasonable

accommodations for her own disability, we

hold that she was not a [“]qualified individual

with a disability[]” as required by § 12111(a)

of the ADA.

(Tyndall, supra. at 214)[.]

25. In the present case, the preponderance of the

evidence proved that Petitioner was not separated from

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Opinion of the Court

employment because of her light sensitivity, but she was

separated from employment because she failed to report to

work, an essential element of her office position. For the

foregoing reasons, Petitioner is not a “qualified individual

with a disability.”

26. Assuming that Petitioner met the first

criterion of being a qualified individual entitled to the

protection of the ADA, Petitioner still did not establish the

second criterion that Respondent discriminated against

Petitioner. Even if Petitioner is a qualified individual with

a disability, Respondent met its obligations to

accommodate her in a reasonable manner. “Reasonable

accommodation” is defined as:

modifications or adjustments to the work

environment, or to the manner or

circumstances under which the position is

held or desired, is customarily performed,

that enable a qualified individual with a

disability to perform the essential functions of

that position.

29 C.F.R. § 1630.2(o) (2012) The ADA affirms that the

employer’s judgment is a major factor in the Court’s

assessment of what constitutes a job’s “essential

functions.” 42 USC §12111(8). The reasonableness of an

accommodation is assessed objectively, not subjectively

from the concerns of either party. See Williams v. Channel

Master Satellite Sys., Inc., 101 F.3d 346 (4th Cir. 1996)[.]

27. The employer is not required to provide an

accommodation that reallocates an essential job function or

that causes an undue hardship. “Undue hardship” means:

[Significant difficulty or expense incurred by

[an employer], taking into consideration

factors such as the nature and cost of

accommodation, the type of operation of the

covered entity, and the impact of the

accommodation upon the operation of the

facility, including the ability of other

employees to perform their duties and the

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Opinion of the Court

facility’s ability to conduct business.

29 CFR § 1630.2(p)(1)-(2)[.]

28. The preponderance of evidence at hearing

established that Respondent engaged in an extensive,

interactive process with Petitioner to determine what

accommodations would be reasonable. Petitioner

consistently requested accommodation that the overhead

lights over the entire Genetics Counseling Group remain

turned off. However, under the applicable case law,

Respondent is not required to provide Petitioner the exact

accommodation requested, but only to provide an

objectively reasonable accommodation, which Respondent

did in this case. Throughout the entire interactive process,

Petitioner was provided an opportunity to participate in

the accommodation process.

29. Respondent physically modified Petitioner’s

workspace per Petitioner’s request and specifications.

Respondent deemed Petitioner’s requests - to hang black

curtain as a door to Petitioner’s office, to keep Ms. [Sike’s]

door closed at all times, and to turn off all overhead lights

(pre-November 2011 lighting conditions)- unreasonable

due to the impact on other employees’ abilities to perform

their work, and the unit’s ability to conduct business.

Ultimately, Respondent modified Petitioner’s workspace to

be darker than it was before November 2011. (Resp. Ex. 78)

30. The interactive accommodation stopped only

because Petitioner ceased contact with her supervisors

once she left work on July 2, 2012. Petitioner admitted she

knew Respondent would continue to work with her upon

her return to work, but Petitioner failed to return to work

by her own volition.

31. A preponderance of the evidence proved that

Respondent provided a series of modifications to

accommodate Petitioner reasonably, while reducing the

impact on her coworkers, despite Petitioner’s

unwillingness to allow Respondent to speak with her

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Opinion of the Court

treating physicians.

32. To the extent Petitioner attempted to bring a

retaliation claim pursuant to ADA, Petitioner failed to

establish a causal link between her seeking

accommodations and her separation. Although Petitioner’s

supervisors, and coworkers certainly expressed frustration

and personal hostility toward Petitioner and with the

lengthy accommodation process, there was no credible

evidence Respondent retaliated against Petitioner for

seeking that accommodation. The evidence at hearing

established that Respondent followed each modification

that . . . [the disability office] suggested.

33. Petitioner relied on McMillian v. City of New

York, 711 F.3d 120 (2nd Cir. 2013) to argue that

Respondent must show that the informal lighting

accommodation before November 2011 is no longer

reasonable, and was a[n] undue burden on Respondent.

However, Petitioner’s reliance is misplaced for several

reasons. First, McMillian is not a 4th Circuit case, and

therefore, is not binding in this case, but merely

persuasive. Second, Petitioner failed to cite any North

Carolina or 4th Circuit case applying the ruling in

McMillian in this State. Third, the McMillian Court ruled

that a previous arrangement with an employee could be a

factor in determining what constituted a reasonable

accommodation. It did not rule that the employer was

required to prove that an informal accommodation is

unduly burdensome to the employer before the employer

can remove the accommodation without violating the ADA.

34. Despite Petitioner’s argument, a previous

accommodation does not tie the employer’s hands and force

the employer to continue to offer the accommodation. “The

fact that certain accommodations may have been offered by

the County [employer] to some employees as a matter of

good faith does not mean that they must be extended to

Myers [another employee] as a matter of law.” Myers v.

Hose, 50 F.2d 278, 284 (4th Cir. 1995)[.] Similarly, in

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Opinion of the Court

Perrin v. Fennell, No. 1:10-CV-810, 2011 US Dist. LEXIS

21730, *1-*6 (ED Va. Mar. 2, 2011), the Fourth Circuit held

that:

[T]he fact that FLSS [the employer] had previously

granted Perrin [employee] a similar request is

irrelevant. An employer’s one time, goo[d] faith offer

of accommodations does not bind the employer to

extend similar offers in the future. . . . [s]uch a

regime would discourage employers from treating

disabled employees in a spirit that exceeds the

mandates of federal law.

Id. at *19-*20.

35. Based on the above case law, Respondent in

this case is not bound by the ADA to continue to offer

Petitioner the previous accommodation of having all the

overhead lights over the Genetic Counseling Group turned

off. From a policy standpoint, holding employers liable for

prior efforts that went beyond federal law would discourage

them from accommodating above the bare minimum

federal requirements.

36. Based on all foregoing Findings of Fact and

Conclusions of Law, Respondent met its obligations to

provide Petitioner with reasonable accommodations under

the ADA.

37. For the foregoing reasons, Petitioner failed to

establish that Respondent terminated her from

employment based on her disability. (See EEOC v. Stowe-

Pharr Mill Inc., 216 F.3d 373, 377 (4th Cir. 2000)).

Retaliation for Requesting an Accommodation

38. The third issue is whether Respondent

retaliated against Petitioner for requesting an

accommodation pursuant to the ADA.

39. The ADA prohibits employers from

retaliating against employees who seek accommodations

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Opinion of the Court

pursuant to the statute. 42 U.S.C. 12203(a) provides that

“[n]o person shall discriminate against any individual

because such individual . . . made a charge . . . under this

Chapter.”). (See 42 U.S.C. § 12203(a); A Soc’y Without a

Name, for People without a Home, Millennium Future-

Present v. Virginia, 655 F.3d 342, 350 (4th Cir. Va. 2011)

(holding that an employee claiming retaliation claim under

the ADA, must establish a causal link exists between the

protected conduct and the adverse action).

40. A preponderance of the evidence showed that

Petitioner did not establish a causal link between her

protected activity and any adverse action by Respondent.

Petitioner was separated from employment due to her

unavailability for work. At the time of her separation, the

ADA accommodation process was still ongoing.

Each of petitioner’s 13 remaining issues on appeal relates to one or more of the

contested conclusions of law.

A. Petitioner’s Brief

We have had some difficulty determining which conclusions of law were

addressed by each argument. For example, petitioner notes Conclusions of Law No.

26 and/or 36 in her “ISSUES PRESENTED” numbered 1, 4, 5, 6, 7 and 8. But the

argument section of her brief has sections lettered A through N, instead of numbered

as they were in the “issues presented” section; furthermore, the numbered issues do

not necessarily coincide with the lettered sections of the argument. For example, the

first issue presented, issue number 1, argues the ALJ and Superior Court erred in

determining respondent had made a reasonable accommodation while the first

argument, letter A, is entitled “Discrimination Under Title I of the ADA” and provides

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Opinion of the Court

the general framework for making a claim under the ADA, the American With

Disabilities Act. Even if we ignore the “ISSUES PRESENTED” section entirely, the

headings of the lettered sections also do not directly relate to particular issues; again,

letter A in the argument section is a general restatement of the law and the facts

from petitioner’s perspective without any contentions for this Court to review.3 But

with that caveat, we have attempted to match up petitioner’s arguments to the issues

as best we can.

B. Title I of the ADA

Petitioner’s arguments are based almost entirely upon Title I of the ADA.

To prevail on an ADA claim, the plaintiff must prove that:

(1) she has a disability as defined by the ADA; (2) she is

qualified for the job; and (3) she was unlawfully

discriminated against by an employer because of her

disability.

Under the ADA, the term disability is defined as a

physical impairment that substantially limits one or more

of the major life activities of such individual. . . .

Only a qualified individual with a disability may

prevail on a discrimination claim under the ADA. The term

qualified individual with a disability means an individual

with a disability who, with or without reasonable

accommodation, can perform the essential functions of the

employment position that such individual holds or desires.

3 North Carolina Rule of Appellate Procedure 28(b)(2) requires that the brief set forth “[a]

statement of the issues presented for review” and (6) requires “[a]n argument, to contain the

contentions of the appellant with respect to each issue presented.” N.C. App. P. R. 28. We must admit

that Rule 28 does not specifically require that the issues be addressed in the same sequence in both

portions of the brief, although that seems to be nearly the universal practice in briefs filed in this

Court, but in this case our initial assumption that the numbered issues were intended to coincide

directly with the lettered arguments was apparently wrong; it was simply a coincidence that there are

14 issues presented and 14 arguments.

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Opinion of the Court

Essential functions of the job are the fundamental job

duties of the person with the disability that bear more than

a marginal relationship to the job at issue.

The term reasonable accommodation may include—

(A) making existing facilities used by

employees readily accessible to and usable by

individuals with disabilities; and

(B) job restructuring, part-time or modified

work schedules, reassignment to a vacant position,

acquisition or modification of equipment or devices,

appropriate adjustment or modification of

examinations, training materials or policies, the

provision of qualified readers or interpreters, and

other similar accommodations for individuals with

disabilities.

Johnson v. Trustees of Durham Tech. Cmty. Coll., 139 N.C. App. 676, 684–85, 535

S.E.2d 357, 363 (2000) (citations, quotation marks, ellipses, and brackets omitted).

Petitioner brought claims under the ADA for her wrongful discharge arguing

that respondent’s failure to make reasonable accommodations for her disability so

that she could continue working ultimately led to her discharge. The ALJ determined

that petitioner’s claims failed because

Petitioner was not separated from employment because of

her light sensitivity, but she was separated from

employment because she failed to report to work, an

essential element of her office position. For the foregoing

reasons, Petitioner is not a “qualified individual with a

disability” [pursuant to the ADA,]

and even

[a]ssuming that Petitioner met the first criterion of being a

qualified individual entitled to the protection of the ADA,

Petitioner still did not establish the second criterion that

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Opinion of the Court

Respondent discriminated against Petitioner. Even if

Petitioner is a qualified individual with a disability,

Respondent met its obligations to accommodate her in a

reasonable manner.

Again, “[t]o prevail on an ADA claim, the plaintiff must prove that: (1) she has

a disability as defined by the ADA; (2) she is qualified for the job; and (3) she was

unlawfully discriminated against by an employer because of her disability.” Id. at

684, 535 S.E.2d at 363. The parties do not dispute that petitioner’s light sensitivity

which leads to migraine headaches is a “disability” as defined by the ADA, and for

purposes of this opinion we will assume petitioner “is qualified for the job.”4 Id. Thus,

all that remains to consider is plaintiff’s contention that “she was unlawfully

discriminated against by an employer because of her disability.” Id. In this

particular case, the alleged discrimination is petitioner’s termination. Therefore, the

crucial issue is whether “Respondent met its obligations to provide Petitioner with

reasonable accommodations under the ADA” because if respondent met its obligation

to “provide Petitioner with reasonable accommodations under the ADA[,]” then

petitioner’s failure to return to work would be without legal justification and that

would be a proper ground for termination, not a discriminatory one, as the ALJ

determined. Thus, we will therefore first address the issue of reasonable

accommodation under the ADA.

4 There is a question of whether petitioner was qualified for the job, but because petitioner’s

claim fails if she does not meet any one of the three prongs for her claim, we choose to address only

the third prong. See generally Johnson, 139 N.C. App. 676, 684–85, 535 S.E.2d 357, 363.

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Opinion of the Court

C. Reasonable Accommodation

Petitioner’s arguments on appeal which relate to the issue of reasonable

accommodations under the ADA are scattered throughout several sections of her

brief. Petitioner contends as follows:

At Conclusions 9 through 12, the Decision finds that

Ms. Rittelmeyer was properly “separated due to

unavailability”, and the just cause issue she raised was

never reached. These conclusions constitute error because

Respondent did not prove “that reasonable efforts were

taken to avoid separation” as required by 25 NCAC

01C.1007(c)(2). Ms. Rittelmeyer stopped coming to work

because her disability had never been effectively

accommodated by Respondent, and essentially each time

she tried to work, she was subjected to a painful migraine

attack. As a result of the repeated and severe migraine

attacks, her health was suffering, she was becoming more

and more susceptible to migraine attacks, and the attacks

were more severe and lasting longer. It was the failure of

Respondent to put in place an accommodation that would

allow her to work without these very serious medical

consequences, that caused her to miss work and ultimately

stop coming to work. The “reasonable efforts” that

Respondent should have engaged in to “avoid separation”

would have been to implement an effective accommodation,

which officials of Respondent refused to do right from the

beginning of the accommodation process. To say, as the

Decision does, that sending Ms. Rittelmeyer letters

demanding that she report to work, where she knew she

would again be subjected to long lasting, painful migraine

attacks triggered by the lights, constituted “reasonable

efforts”, is the height of sophistry.

(Footnote omitted.) Thus, petitioner claims that respondent failed to make

“reasonable efforts” to accommodate her disability, and due to that failure, she should

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Opinion of the Court

prevail on this issue.

42 U.S.C.A. § 12111(9) defines reasonable accommodation:

The term “reasonable accommodation” may include—

(A) making existing facilities used by employees

readily accessible to and usable by individuals with

disabilities; and

(B) 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.

42 U.S.C.A. § 12111(9) (West 2013).

42 U.S.C.A. 12112 defines discrimination as

not making reasonable accommodations to the known

physical or mental limitations of an otherwise qualified

individual with a disability who is an applicant or

employee, unless such covered entity can demonstrate that

the accommodation would impose an undue hardship on

the operation of the business of such covered entity.

42 U.S.C.A. § 12112(b)(5)(A) (West 2013).

Petitioner’s main argument is that although respondent did make

modifications to her work area to accommodate her disability, those modifications

were not effective – because they did not work – so therefore they were not

“reasonable” accommodations as a matter of law. In other words, respondent argues

that the only accommodations that qualify as “reasonable” are those that would have

been effective in eliminating her migraines at work. Petitioner relies primarily upon

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Opinion of the Court

US Airways, Inc. v. Barnett, 535 U.S. 391, 152 L. Ed. 2d 589 (2002), contending that

“[a]s recognized by the Supreme Court in US Airways, Inc. v. Barnett, 535 U.S. 391,

400 (2002), ‘An ineffective “modification” or “adjustment” will not accommodate a

disabled individual’s limitations.’ (emphasis in original). Ineffective accommodations

therefore are not accommodations.” Petitioner’s argument quotes US Airways, Inc.

v. Barnett, out of context; in fact, the Supreme Court specifically rejected the idea that

a “reasonable accommodation” and an “effective accommodation” are one and the

same:

Barnett argues that the statutory words “reasonable

accommodation” mean only “effective accommodation,”

authorizing a court to consider the requested

accommodation’s ability to meet an individual’s disability-

related needs, and nothing more. . . .

....

These arguments do not persuade us that Barnett’s

legal interpretation of “reasonable” is correct. For one

thing, in ordinary English the word “reasonable” does not

mean “effective.” It is the word “accommodation,” not the

word “reasonable,” that conveys the need for effectiveness.

An ineffective “modification” or “adjustment” will not

accommodate a disabled individual's limitations. Nor does

an ordinary English meaning of the term “reasonable

accommodation” make of it a simple, redundant mirror

image of the term “undue hardship.” The statute refers to

an “undue hardship on the operation of the business.” 42

U.S.C. § 12112(b)(5)(A). Yet a demand for an effective

accommodation could prove unreasonable because of its

impact, not on business operations, but on fellow

employees—say, because it will lead to dismissals,

relocations, or modification of employee benefits to which

an employer, looking at the matter from the perspective of

the business itself, may be relatively indifferent.

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Opinion of the Court

Neither does the statute’s primary purpose require

Barnett’s special reading. The statute seeks to diminish or

to eliminate the stereotypical thought processes, the

thoughtless actions, and the hostile reactions that far too

often bar those with disabilities from participating fully in

the Nation’s life, including the workplace. See generally §§

12101(a) and (b). These objectives demand unprejudiced

thought and reasonable responsive reaction on the part of

employers and fellow workers alike. They will sometimes

require affirmative conduct to promote entry of disabled

people into the work force. See supra, at 397-98. They do

not, however, demand action beyond the realm of the

reasonable.

Neither has Congress indicated in the statute, or

elsewhere, that the word “reasonable” means no more than

“effective.” The EEOC regulations do say that reasonable

accommodations “enable” a person with a disability to

perform the essential functions of a task. But that phrasing

simply emphasizes the statutory provision’s basic

objective. The regulations do not say that “enable” and

“reasonable” mean the same thing. And as discussed below,

no court of appeals has so read them. But see 228 F.3d, at

1122–1123 (Gould, J., concurring).

Finally, an ordinary language interpretation of the

word “reasonable” does not create the “burden of proof”

dilemma to which Barnett points. Many of the lower courts,

while rejecting both U.S. Airways’ and Barnett’s more

absolute views, have reconciled the phrases “reasonable

accommodation” and “undue hardship” in a practical way.

They have held that a plaintiff/employee (to defeat a

defendant/employer’s motion for summary judgment) need

only show that an “accommodation” seems reasonable on

its face, i.e., ordinarily or in the run of cases. See, e.g., Reed

v. LePage Bakeries, Inc., 244 F. 3d 254, 259 (CA1 2001)

(plaintiff meets burden on reasonableness by showing that,

“at least on the face of things,” the accommodation will be

feasible for the employer); Borkowski v. Valley Central

School Dist., 63 F. 3d 131, 138 (CA2 1995) (plaintiff

satisfies “burden of production” by showing “plausible

accommodation”); Barth v. Gelb, 2 F. 3d 1180, 1187 (CADC

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Opinion of the Court

1993) (interpreting parallel language in Rehabilitation Act,

stating that plaintiff need only show he seeks a “method of

accommodation that is reasonable in the run of cases”

(emphasis in original)).

Once the plaintiff has made this showing, the

defendant/employer then must show special (typically

case-specific) circumstances that demonstrate undue

hardship in the particular circumstances. See Reed, supra,

at 258 (“ ‘undue hardship inquiry focuses on the hardships

imposed . . . in the context of the particular [employer’s]

operations’ ”) (quoting Barth, supra, at 1187); Borkowski,

supra, at 138 (after plaintiff makes initial showing, burden

falls on employer to show that particular accommodation

“would cause it to suffer an undue hardship”); Barth,

supra, at 1187 (“undue hardship inquiry focuses on the

hardships imposed . . . in the context of the particular

agency’s operations”).

Not every court has used the same language, but

their results are functionally similar. In our opinion, that

practical view of the statute, applied consistently with

ordinary summary judgment principles, see Fed. Rule Civ.

Proc. 56, avoids Barnett’s burden of proof dilemma, while

reconciling the two statutory phrases (“reasonable

accommodation” and “undue hardship”).

535 U.S. 391, 399-402, 152 L.Ed.2d 589, 601-03 (emphasis added). Thus, we reject

petitioner’s contention that because the accommodations were not effective for her,

they were per se not reasonable. See id.

Under Barnett, an “ineffective modification” is one which “will not

accommodate a disabled individual's limitations.” See id. at 400, 152 L. E. 2d at 601.

The most obvious modification to accommodate light sensitivity is to eliminate an

employee’s exposure to lights, if possible, and otherwise to reduce exposure to light

as much as possible without excessive interference with the ability of other employees

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Opinion of the Court

to do their work.

The determination of reasonableness is

an objective analysis, not a subjective one dominated by

either party’s concerns. In assessing objective

reasonableness, the governing statute provides guidance.

See 42 U.S.C. § 12111(9). It provides that reasonable

accommodation’ may include a number of listed measures;

obviously Congress considered these types of

accommodations to be reasonable.

Williams v. Channel Master Satellite Systems, Inc., 101 F.3d 346, 350 (4th Cir. 1996)

(quotation marks omitted).

Respondent tried many of the listed measures in 42 U.S.C.A. § 12111(9). See

42 U.S.C.A. § 12111(9). For example, respondent offered “job restructuring” by

proposing that petitioner work from home; she rejected this proposal more than once.

Respondent also “modif[ied] . . . equipment or devices” by making many changes to

petitioner’s cubicle and to lights throughout the work area. The modifications were

objectively reasonable in that they lessened petitioner’s exposure to light, while

allowing other employees adequate light to work. Over the course of several months

respondent made many accommodations, including some based on petitioner’s own

requests for changes which she believed would accommodate her needs, and others

identified by respondent. The accommodations included turning off various sets of

lights, light bulb watt changes, disabling lights, several modifications to petitioner’s

cubicle, and movement of shared office equipment to petitioner so she would not need

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Opinion of the Court

to leave her cubicle. At the same time, respondent also had to address complaints of

other employees who were having difficulty seeing in the darkened areas of the

workplace. Respondent was also trying to hit a moving target, since petitioner’s light

sensitivity increased over time.5 Even petitioner admitted that after the

modification, her cubicle was darker than it had ever been yet she began requesting

accommodations for light sources that had not previously been a problem, such as

Ms. Sikes’s office. Furthermore, petitioner rejected requests to work from home and

the option of wearing room-darkening glasses, although she admitted that she used

them elsewhere. Given the binding findings of fact, see generally Garrett, 224 N.C.

App. at 34, 735 S.E.2d at 416, it is clear that respondent made numerous reasonable

accommodations.

D. Undue Hardship

Petitioner further contends that

where an employer has informally accommodated an

employee’s disability, and the employee performs their job

satisfactorily, that establishes that the accommodation is

reasonable and if the employer revokes that

accommodation, they must prove that continuation of the

accommodation would cause it undue hardship[, and]

5 One of petitioner’s arguments is that her exposure to light in the workplace actually

“aggravated” her light sensitivity, so that respondent’s failure to find the right accommodation earlier

in the process worsened her condition. Even if we assume this to be true, respondent had no way of

knowing or predicting if petitioner’s light sensitivity would increase, decrease, or stay the same based

upon the modifications made. The only medical information on this increase in sensitivity was

presented at the hearing; petitioner would not permit respondent to communicate with her healthcare

providers during the interactive process. This additional information regarding petitioner’s increasing

sensitivity may have helped respondent do a better job of accommodating petitioner’s condition, but

petitioner chose not to share her medical information during the accommodation process.

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Opinion of the Court

morale issues of other employees do not constitute undue

hardship to the employer, where the evidence shows that

the work of the employees was getting completely done[.]

(Quotation marks omitted.) Again, petitioner is incorrect in her legal analysis. In a

related issue, the Fourth Circuit clarified that

[t]he fact that certain accommodations may have been

offered by the County to some employees as a matter of good

faith does not mean that they must be extended to Myers as

a matter of law. See Traynor v. Turnage, 485 U.S. 535, 549,

108 S.Ct. 1372, 1384, 99 L. Ed. 2d 618 (1988) (“There is

nothing in the Rehabilitation Act that requires that any

benefit extended to one category of handicapped persons

also be extended to all other categories of handicapped

persons.”). Moreover, such a regime would discourage

employers from treating disabled employees in a spirit that

exceeds the mandates of federal law. If an employer

undertook extraordinary treatment in one case, the same

level of accommodation would be legally required of it in all

subsequent cases; in other words, a good deed would

effectively ratchet up liability, and thus not go unpunished.

See Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d

538, 545 (7th Cir. 1995). Discouraging discretionary

accommodations would undermine Congress’ stated

purpose of eradicating discrimination against disabled

persons. See 42 U.S.C. § 12101(b). Accordingly, we do not

accept the proposition that Myers is ipso facto entitled to

the precise accommodations afforded other disabled

County employees.

Myers v. Hose, 50 F.3d 278, 284 (4th Cir. 1995) (emphasis added).

While Myers was addressing different employees, the logic also applies here.

Compare id. The fact that Ms. Sikes was willing to try certain accommodations does

not mean she was then bound to continue an accommodation even if it ended up being

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Opinion of the Court

untenable. See generally id. Ms. Sikes tried turning off all overhead florescent lights

but she later determined that this accommodation could not continue due to other

employees’ complaints. See generally id. Petitioner’s interpretation would do exactly

what Myers warns about causing “a good deed [to] effectively ratchet up liability[;]”

an employer should not be punished for being willing to try an accommodation which

ends up not working or being discontinued for other reasons, whether due to the

disabled employee, other employees, or the employer. Id. Again, reasonableness is

an objective standard, and it is not objectively reasonable to require all other

employees to work without overhead lights in this particular situation. See Williams,

101 F.3d at 350. U.S.C.A. § 12112(b)(5)(A) mandates that the employer must

demonstrate undue hardship if refusing a reasonable accommodation, not an

unreasonable accommodation proposed by the disabled employee. See U.S.C.A. §

12112(b)(5)(A). Therefore, we need not further address petitioner’s arguments

regarding undue hardship.

E. Interactive Process

Closely related to petitioner’s challenge of the reasonableness of respondent’s

accommodations are her arguments that respondent failed to use good faith in

engaging in the interactive process of finding a reasonable accommodation.

Specifically, petitioner argues:

6. Did the ALJ and the Superior Court Judge

commit errors of law when they failed to recognize that

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Opinion of the Court

under the ADA the employer must propose additional

possible reasonable accommodations when it is aware that

the accommodations[] it has implemented are not effective,

and also when the employee proposes additional

accommodations, and the failure to do so constitutes a

failure to engage in the interactive process required by the

ADA? COL 28, 29, 30, 36 & 37 [R. pp.155-56], aff'd, R.

p.163]

7. Did the ALJ and the Superior Court Judge

commit errors of law when they failed to recognize the bad

faith of Respondent in the interactive process as shown by

numerous statements by managers indicating

discriminatory intent, and the refusal to consider the

reasonable accommodation of turning off the fluorescent

lights? COL 28, 29, 30, 32, 36 & 37 [R. pp.155-56], aff’d, R.

p.163.

8. Did the ALJ and the Superior Court Judge

commit errors of law when they failed to recognize that

when the lack of an effective accommodation for a disabled

employee causes the employee to have deficiencies in their

work performance such as excessive absenteeism, under

the ADA a discharge for those deficiencies is a discharge

based on disability? COL 19, 20, 21, 23, 24, 25, 36 & 37

[R. pp.153-54 & 156], aff’d, R. p.163.

The parties were engaged in a formal interactive process to find a reasonable

accommodation and both employee and employer are required to participate in good

faith:

Once an employee has made a request for an

accommodation, the ADA’s regulations state that “it may

be necessary for the employer to initiate an informal,

interactive process with the qualified individual with a

disability in need of the accommodation” in order to craft a

reasonable accommodation. 29 C.F.R. § 1630.2(o)(3). The

EEOC’s interpretive guidelines reinforce this directive, but

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Opinion of the Court

also stress that the interactive process requires the input

of the employee as well as the employer. See 29 C.F.R. Pt.

1630, App. § 1630.9 at 359 (“flexible, interactive process

that involves both the employer and the qualified

individual with a disability”). See also Taylor v. Principal

Financial Group, Inc., 93 F.3d 155, 165 (5th Cir.), cert.

denied, 519 U.S. 1029, 117 S.Ct. 586, 136 L. Ed. 2d 515

(1996) (duty to launch interactive process is triggered by

request for an accommodation). The need for bilateral

discussion arises because “each party holds information

the other does not have or cannot easily obtain.” See Taylor

v. Phoenixville School Dist., 174 F.3d 142, 162 (3rd

Cir.1999) (noting that employers will not always

understand what the disabled employee is capable of and

the employee will not always understand what

accommodations are reasonably available). Courts

interpreting the interactive process requirement have held

that when an employer’s unwillingness to engage in a good

faith interactive process leads to a failure to reasonably

accommodate an employee, the employer violates the ADA.

See Taylor v. Phoenixville School Dist., 174 F.3d 142, 165;

Bultemeyer v. Fort Wayne Community Schools, 100 F.3d

1281, 1285 (7th Cir.1996). However, recognizing that “the

responsibility for fashioning a reasonable accommodation

is shared between the employee and the employer,” see

Principal Financial Group, 93 F.3d at 165 (emphasis

added), courts have held that an employer cannot be found

to have violated the ADA when responsibility for the

breakdown of the “informal, interactive process” is traceable

to the employee and not the employer. See Beck v.

University of Wisconsin Bd. Of Regents, 75 F.3d 1130, 1135

(7th Cir.1996); Templeton v. Neodata Services, Inc., 162

F.3d 617 (10th Cir.1998). This reasoning flows naturally

from our recognition in Principal Financial Group that

responsibility for the interactive process is shared. Since on

the evidence here no reasonable jury could find Akzo at

fault for the breakdown of the interactive process, the

district court was correct to grant judgment as a matter of

law in Akzo’s favor.

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Opinion of the Court

Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 735–36 (5th Cir. 1999) (emphasis added)

(footnotes and brackets omitted).

Petitioner’s issues here are all based upon the “failure” of the ALJ and Superior

Court to “recognize” certain things. While petitioner’s issues are framed as legal

issues they really ask this Court to re-weigh the evidence and make different factual

determinations. But we have already determined that the findings of fact are

binding upon this Court. See Garrett, 224 N.C. App. at 34, 735 S.E.2d at 416.

Furthermore, to the extent that petitioner’s issues regarding the ALJ’s and Superior

Court’s “failures” are based upon a legal determination, petitioner’s legal arguments

also fail because the numerous findings of fact regarding the many reasonable

accommodations made by respondent demonstrate that respondent engaged in the

interactive process in good faith.

The findings of fact also establish that it was petitioner who ended the

interactive process. Thus, even generously assuming arguendo that respondent’s

arguments may raise some interesting legal points, the fact remains that petitioner’s

actions ultimately caused the interactive process to stop before finding an effective

accommodation. Though petitioner argues that she disengaged from the process

because she could no longer return to work without risking a migraine being

triggered, this point ignores the evidence and findings that petitioner was given the

opportunity to work from home as the interactive process continued. Petitioner chose

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Opinion of the Court

not to work from home; petitioner chose not to return to work; petitioner’s choices

were the reason the interactive process failed to continue. “No matter how earnestly

one party attempts to engage in an interactive process, its efforts can always be

superficially characterized as unilateral if the other party refuses to interact. One

cannot negotiate with a brick wall.” Loulseged, 178 F.3d at 737. These arguments

are overruled.

F. Termination

Petitioner’s final subset of arguments run the gamut touching on

“discrimination,” “retaliation,” and the failure of the ALJ and Superior Court to

“adopt” her findings of fact and cited law and to award her damages. All of

petitioner’s arguments are based upon the premise that respondent failed to properly

engage in the interactive process and failed to make reasonable accommodations, so

ultimately respondent retaliated against petitioner by terminating her employment

on the discriminatory basis of her disability. But petitioner was not terminated for

her disability; she was terminated because she stopped coming to work without even

letting respondent know that she would not report to work as scheduled, after she

also repeatedly refused to work from home. Petitioner’s arguments fail.

V. Conclusion

For the foregoing reasons, we affirm.

AFFIRMED.

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Opinion of the Court

Judges BRYANT and CALABRIA concur.

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