Petition for Writ of Certiorari — Memorial Hospitals Assn. v. Humphrey

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Supreme Court, U.S.

FILED

001860 JUN 132001

No. 00- OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

_—

MEMORIAL HOSPITALS ASSOCIATION,

Petitioner,

CAROLYN HUMPHREY,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

F. CURT KIRSCHNER, JR WALTER DELLINGER

DIPANWITA DEB AMAR (Counsel of Record)

O’MELVENY & MYERS LLP SRI SRINIVASAN*

275 Battery Street ERIKA FRICK*

San Francisco, CA 94111 JOHN B. OWENS

(415) 984-8700 _ O’MELVENY & MYERS LLP

555 13th Street, N.W.

Washington, D.C. 20004

(202) 383-5300

*Admitted in California only

Attorneys for Petitioner

QUESTIONS PRESENTED

The Americans with Disabilities Act (“ADA”) prohibits

covered employers from “discriminating” in the terms and

conditions of employment, and defines “discrimination” to

include “not making reasonable accommodations to the

known physical or mental limitations of an otherwise

qualified individual with a disability who is an applicant or

an employee.” 42 U.S.C. § 12112(b)(5)(A).

The questions presented in this petition are:

1. Whether, as the Ninth Circuit held below, an employer

must offer a “reasonable accommodation” to an

employee before terminating her employment even when

the employee knows about and previously has rejected

that reasonable accommodation, or, as other courts of

appeals have held, an employer need not offer a

reasonable accommodation to an employee when the

employee knows about the “reasonable accommodation”

and already has rejected it.

2. Whether, as the Ninth Circuit held below, an indefinite

leave of absence that might “plausibly’ allow an

employee to return to work qualifies as a “reasonable

accommodation,” or as other courts of appeals have held,

a leave of absence must be definite in duration and

“likely” to enable the employee to retum to work to

qualify as a “reasonable accommodation.”

CORPORATE DISCLOSURE STATEMENT

Petitioner Memorial Hospitals Association is a California

nonprofit public benefit corporation with Sutter Health as its

sole corporate member. Neither Memorial Hospitals

Association nor Sutter Health has any affiliates, parents, or

subsidiaries with publicly issued shares.

ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED.......--..--s+sssssssssssnesssssesnsennennnennss i

CORPORATE DISCLOSURE STATEMENT .........-.++-++++- il

TABLE OF AUTHORITIES ......-.---::::ssssssesessesnenssnenersnennanees Vv

OPINIONS BELOW. .........-:::::cssecesessssseensesseenenenennnnsnsnsnennenes 1

JURISDICTION. .........:-:scscssescssssesceceesessesssnsesenensneneensnsnnsnennes 1

STATUTORY PROVISIONS INVOLVED.........------1-s-ss000* 1

STATEMENT OF THE CASE..........-:::ssssssssseseeesensnsnenennenenes 1

A. Factual Background. ........:......s-ssssseeseeeeseenenes 3

B. District Court Proceedings. .............--++-se+++9 6

c The Ninth Circuit’s Decision. ...........-+-+--+-+++ 8

REASONS FOR GRANTING THE WRIT.......-.-.---+-0+0e0+0+ 11

L. THE NINTH CIRCUIT’S HOLDING

THAT AN EMPLOYER VIOLATES

THE ADA BY NOT OFFERING AN

ACCOMMODATION THAT THE

EMPLOYEE KNOWS ABOUT AND

ALREADY HAS REJECTED CON-

FLICTS WITH A DECISION OF

THE SIXTH CIRCUIT AND WITH

THE TERMS AND STRUCTURE OF

TABLE OF CONTENTS

(continued)

Page

1. THE NINTH CIRCUIT’S HOLDING

THAT A LEAVE OF ABSENCE

THAT MIGHT “PLAUSIBLY” EN-

ABLE THE EMPLOYEE TO RE-

TURN TO WORK CONSTITUTES A

REASONABLE ACCOMMODA-

TION, NOTWITHSTANDING THE

ABSENCE OF ANY EVIDENCE AS

TO THE DURATION OF THE

LEAVE, CONFLICTS WITH THE

DECISIONS OF NUMEROUS

COURTS OF APPEALS... oooo.oeocccccccesseeee. 19

sea step ogi TE PMD SON 27

——

TABLE OF AUTHORITIES

Page(s)

CASES

Ansonia Bd. of Educ. v. Philbrook,

STD ULSD. GO GID wecsscscsntnsnetnsnsineninstincinisnsateelgtiaieenin 20 n.5

Barnett v. U.S. Air,

228 F.3d 1105 (9th Cir. 2000),

cert. granted, 121 S. Ct. 1600 (Apr. 16,

TIDES siissslaitinitanisninacantinininianciuitathdiaiiaipsiinmmiaamiie 10

Boykin v. ATC/Vancom of Colorado, L.P.,

DET FBR DI wiscnsisninstisnssitiiasciansesiginsiniaijuoinmatiihanncian 21-22

Cisneros v. Wilson,

226 F.3d 1113 (10th Cir. 2000),

overruled on other grounds by Board of

Trustees v. Garrett, 121 S. Ct. 955 (2001).............. eee. 23

Duckett v. Dunlop Tire Corp.,

EO Ee TA EE a Fa i iaitrcceccnsecnansessoscocnnene 21-23

Gantt v. Wilson Sporting Goods Co.,

BRD PO TOS Ai Ce, Fi arrctccescnscnnennccnscnssanstsnceniees 21

Hankins v. The Gap, Inc.,

84 F.3d 797 (6th Cir. 1996)..................-ccsssseeseees 7, 14-15

Hudson v. MCI Telecomms. Corp.,

SF FBO TART Ce, TI ecceccictnrnsncscssnnrsionectn 21, 23

Jones v. United Parcel Serv.,

BA Fe Ge Ce Ge, Be ren eniccnstinsttiniiecssncesnssiane 17 n.3

Kimbro v. Atlantic Richfield Corp.,

Sa Fe a Ce ae Be ei ceciscccsninannesiccnsitnscsnssnennnanisioes 9

Loulseged v. Akzo Nobel Inc.,

yo fm Bei Fs fe 3... SR epemmmeecmevenmncneme 16

TABLE OF AUTHORITIES

(continued)

Page(s)

Mole v. Buckhorn Rubber Products, Inc.,

pe Bring: fe 3 Sone 15-16

Myers v. Hose,

Pe vit ls 2. ee passim

Nowak v. St. Rita High School,

£43 FSG Fee Cr ee icc titnscenticnennstientstmmsntcninneds 21

Parker v. Columbia Pictures Indus.,

206 FD Se ey ee itaintaeitestchaeniniinensindeicniiaines 21

Phelps v. Optima Health, Inc.,

2001 WL 563921 (ist Cir. May 30, 2001).............. 17n3

Rogers v. International Marine Terminals,

be b 7. le). ee 21

Sieberns v. Wal-Mart Stores, Inc.,

y-P A BF fy th Re: 17n3

Smith v. Midland Brake,

i pe Piet) foe, 20 n.5

Sutton v. United Airlines,

$27 US. G7 Cee tine 20 n.5, 25

Taylor v. Pepsi-Cola Co.,

196 F.3d 1106 (10th Cir. 1999)...................cccccccceees 23 n.6

Taylor v. Principal Financial Group, Inc.,

Pe Fit Le 3 | one 16

Watkins v. J & S Oil Co.,

2646 F.38 SS Chae ae, BO titecerectnneainnataienniiiinn 21

Webster v. Methodist Occupational Health

Centers, Inc.,

PBA Pie Te fs | Sere 14-15

vil

TABLE OF AUTHORITIES

(continued)

Page(s)

STATUTES

42 U.S.C. § 12110 ef S€q. ...----.-seceeeeesereseernenenensnanannnnnnenenenenens 1

42 U.S.C. § 1211108) «...--2-ceeseeereecerenensnennnnnanennnnennnnnnny passim

42 U.S.C. § 1211109) ...-ccececceseeeseneeceseneenenennnnnnannensnen 2,20n.4

42 U.S.C. § 12112(a) ...-.-cecereressceenssenenessnesnensnensnsnsnsnenenensnenns 1

42 U.S.C. § 12112) SMA) --------c-ceceeeneneenenennnnnnnennens 2, 13, 17

REGULATIONS

29 C.F.R. § 1630.2(0)(3)...------seceesesereresnesnesnnsneansnensnnnnsnsanenens 2

29 CFR. § 1630.9() ....---c-cecesesesnceeeeesnsnsnsnensnsnenernanens 14, 18

29 C_F.R. Pt. 1630, App. § 1630.9 ............c-c-ererereeeees 2, 13-14

29 CFR. Pt. 1630, App. § 1630.2(0) ........-.-ecee-eeeeeeeeeees 2, 20

PETITION FOR A WRIT OF CERTIORARI

Petitioner Memorial Hospitals Association (“MHA”)

respectfully prays that a writ of certiorari issue to review the

judgment of the United States Court of Appeals for the Ninth

Circuit in this case.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Ninth Circuit in this case is reported at 239 F.3d 1128 (9th

Cir. 2001) and is reprinted in the Appendix to this Petition

(“App.”) at App. la. The opinion of the United States

District Court for the Eastern District of California

(Coyle, J.) is unreported and is reprinted at App. 25a.

JURISDICTION

The opinion of the Court of Appeals was issued on

February 13, 2001. On April 30, 2001, Justice O’Connor

granted petitioner an extension until June 13, 2001, to file

this petition. The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The Americans with Disabilities Act (““ADA” or “Act”)

is codified at 42 U.S.C. § 12101 ef seg., and pertinent

provisions are reprinted at App. 48a.

STATEMENT OF THE CASE

The ADA prohibits covered employers from

“discriminating” in the terms of employment against a

“qualified individual with a disability,’ 42 U-S.C.

§ 12112(a), i.e., “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.” 42 U.S.C. § 12111(8) (emphasis

added). The ADA defines “discrimination” to include “not

making reasonable accommodations to the known physical

or mental limitations of an otherwise qualified individual

with a disability ..., unless [the employer] can demonstrate

that the accommodation would impose an undue hardship on

the operation of the business of such [employer].” 42 U.S.C.

§ 12112(b)(5)(A). While the ADA does not explicitly define

“reasonable accommodation,” the Act lists examples of

accommodations that, in appropriate circumstances, might be

reasonable. 42 U.S.C. § 12111(9).

The regulations promulgated by the Equal Employment

Opportunity Commission (“EEOC”) in implementing the

ADA state that in determining reasonable accommodations,

an employer “may” be required to engage in an “interactive

process” with employees. 29 C.F.R. § 1630.2(0)(3). In the

Appendix to the regulations (entitled “Interpretive Guidance

on Reasonable Accommodation”), the EEOC provides

further explanation about this interactive process, stating that

“the appropriate reasonable accommodation is_ best

determined through a flexible, interactive process that

involves both the employer and the qualified individual with

a disability.” 29C.F.R. Pt. 1630, App. § 1630.9. The

Appendix also provides additional examples of

accommodations that might be reasonable, including a

suggestion that the type of accommodation at issue in this

case — a leave of absence — might be reasonable. 29 C.F.R.

Pt. 1630, App. § 1630.2(0).

This case presents two important questions regarding the

ADA’s “reasonable accommodation” requirement. The first

question is whether an employer must offer an employee an

accommodation that is known to the employee and that she

previously has rejected. The Ninth Circuit concluded that

the employer must offer the accommodation, whereas the

Sixth Circuit holds that it need not.

The second question is whether an indefinite leave of

absence that might “plausibly” allow an employee to return

to work qualifies as a “reasonable accommodation.” The

Ninth Circuit held that an indefinite leave of absence

constitutes a reasonable accommodation so long as it could

“plausibly” enable the employee to perform her job upon

return from leave. The Ninth Circuit expressly rejected the

higher standard of “likely.” This holding conflicts with the

courts of appeals in two ways. First, numerous courts of

appeals hold that a leave of absence that is indefinite in

duration can never be a reasonable accommodation. Second,

the Eleventh Circuit holds that a leave of absence can serve

as a reasonable accommodation only if it is “likely” to

enable the employee to perform her job adequately.

A. Factual Background.

Respondent Carolyn Humphrey (“Humphrey”) began

working for MHA as a medical transcriptionist in 1986.

App. 2a. In 1989, Humphrey began having significant

problems with her attendance, frequently not showing up to

work either on time or at all. Jd. She contends that she

engaged in a series of obsessive rituals that impeded her

ability to get to work. Jd. For instance, she repeatedly rinsed

her hair for up to an hour, and if it did not “feel right,” she

would return to the shower to wash it again. Jd. The entire

process of washing her huir could take up to three hours. Jd.

She also felt compelled to dress very slowly, to check and

recheck repeatedly for papers she needed, and to pull out

strands of her hair because she felt as though something was

crawling on her scalp. Humphrey contends that these acts

made coming to work on time very difficult. Jd. On the

occasions that she realized that she was late, she would

panic, which made it even more difficult for her to leave her

house and get to work. Jd.

As a result of Humphrey’s repeated tardiness and

absences, in' June 1994, MHA gave her a “Level I”

disciplinary warning under its attendance and discipline

policy. App. 2a. This warning required that Humphrey call

her supervisor before the beginning of her scheduled shift if

she was going to be late or absent. Jd. Humphrey’s

attendance problems did not improve after this warning; in

fact, they grew worse. Jd. She also failed to follow the

call-in policy required under her disciplinary warning. Jd.

Consequently, in December 1994, she received a “Level IIT’

warning, which was based on four tardy days and one

unreported absence over a two-week period. Jd.

After receiving her Level II warning, Humphrey took

advantage of MHA’s Employee Assistance Program

(“EAP”). App. 3a. Through EAP, Humphrey was counseled

regarding her attendance, and she received hints to help her

improve her attendance record, such as getting up earlier and

laying out her clothes the night before. Jd. Although

Humphrey attended several sessions of counseling through

EAP and found this program helpful, her efforts to follow the

hints ultimately were not successful. Jd.

In 1995, after watching an episode of the Oprah Winfrey

Show focusing on Attention Deficit Disorder, Humphrey

began to suspect that her inability to show up to work on

time may have been related to a medical condition. App. 3a.

Accordingly, on May 3, 1995, she met with MHA’s

Employee Health Nurse Practitioner, Elizabeth Pierson, to

discuss her suspicions. App. 3a, 26a. At MHA’s expense,

Pierson referred Humphrey to a diagnostic evaluation and

psychological testing with a local physician, Dr. John

Jacisin. App. 3a.

On May 12, 1995, Dr. Jacisin examined Humphrey and

diagnosed her as suffering from obsessive-compulsive

disorder. App. 3a. He advised Pierson of his diagnosis in a

May 18, 1995 letter, in which he also opined:

I believe that we can treat this, although, the

treatment may take a while. I do believe that she

would qualify under the Americans with Disability

Act, although, I would like to see her continue to-

work, but if it is proving to be a major personnel

problem, she may have to take some time off until we

can get the symptoms better under control.

App. 4a. This letter was the only evidence that Humphrey

submitted to her employer about the need for a leave of

absence.

On June 7, 1995, Humphrey met with her supervisor and

Pierson to discuss Dr. Jacisin’s letter and potential courses of

action. App. 4a. MHA offered Humphrey “some time off,”

but Humphrey indicated that she wanted to continue

working. App. 27a. Accordingly, MHA offered her another

accommodation — a flexible start-time arrangement, under

which Humphrey could begin work anytime within a 24-

hour period on days on which she was scheduled to work.

App. 5a. Once she arrived to work, however, Humphrey

would be required to complete her 8-hour scheduled shift.

App. 28a. MHA advised her that if she was not planning to

arrive at work at all on a scheduled day, she should contact

someone in her supervisory chain within the medical

transcription department. Jd. Pierson asked Humphrey to

think about whether any other accommodation requests were

desirable, and to submit any future accommodation requests

in writing. App. 5a. A few days later, Humphrey accepted

the flexible start-time arrangement in writing and further

agreed that she would “still do [her] best to be at [her] work

station at the earliest possible hour.” Jd.

Despite the flexible start-time arrangement, Humphrey

continually failed either to report for work or to inform her

supervisor that she would be unable to report to work. App.

5a, 28a. Each of Humphrey’s unscheduled absences caused

MHA to lose a_complete 24-hour period of productivity

because the medical transcription department did not know

until the 24-hour period expired that Humphrey would not

ee ee ee TT aC ee

report for work that day. App. 28a. MHA’s lack of

knowledge about Humphrey’s absences before they occurred

also resulted in several missed deadlines in the medical

transcription department. /d.

Because the flexible start-time arrangement did not

eliminate her attendance problems, Humphrey thereafter

asked MHA if she could work at home. App. 5a, 28a. MHA

denied this request, citing its uniformly-applied departmental

policy that prohibited any employee subjected to disciplinary

action from working at home. App. 6a, 28a.

At her September 26, 1995 performance review,

Humphrey was told that she had been absent an

“unacceptable” nine times within the previous two months

without calling in. App. 29a. Following this performance

review, Humphrey was absent twice more. Jd. On October

10, 1995, Humphrey was terminated. App. 8a, 29a.

Humphrey testified that on the day she learned of her

termination, she asked MHA for a leave of absence.

App. 8a. MHA denied that Humphrey ever asked for a leave

of absence on the day of her termination, and no finding of

fact has been made on this issue. Jd.

B. District Court Proceedings.

On September 6, 1996, Humphrey filed suit against

MHA in the United States District Court for the Eastern

District of California. App. 8a. Humphrey alleged, inter

alia, that MHA violated the ADA and its state law

counterpart by failing to provide her _ reasonable

accommodations that would enable her to perform the

essential functions of the medical transcriptionist position.

App. 8a.' Specifically, Humphrey complained that she

' Humphrey also alleged claims under the Family Medical Leave Act

and California Family Rights Act. The district court granted MHA’s

summary judgment on these claims, and because Humphrey did not

appeal that ruling, these claims are not at issue here. App. 8a, 1.5.

Pe Ne ee ee

should have been offered two separate accommodations for

her disability — the right to work at home and a leave of

absence. App. 31a.

The district court granted summary judgment in favor of

MHA. App. 8a. The court held that Humphrey’s ADA

claim focused on two issues: “(1) whether a prolonged

medical leave of absence or permission to work at home are

appropriate ‘reasonable accommodations’ for an illness

which causes an ADA plaintiff to sporadically miss work;

and (2) if so, whether [Humphrey] introduced sufficient

evidence to create a genuine dispute of material fact as to

whether [MHA], by nov giving plaintiff a leave of absence

before termination and by not allowing her to work at home,

did not sufficiently engage in the interactive process that the

ADA contemplates.” App. 31a-32a.

The district court rejected Humphrey’s claim that she

should have been allowed to work at home,. App. 34a-35a.

As for Humphrey’s leave of absence argument, MHA

contended that the leave requested by Humphrey here was

unreasonable as a matter of law because it was indefinite in

duration. Rather than decide this question, the district court

examined a related issue that it deemed determinative:

“whether [MHA] sufficiently engaged in the contemplated

interactive process with regard to the medical leave of

absence.” App. 35a. Discussing several federal appellate

decisions and quoting extensively from Hankins v. The Gap,

Inc., 84 F.3d 797, 801-02 (6th Cir. 1996) (App. 35a-45a), the

court granted summary judgment for MHA because

Humphrey “was initially offered a leave of absence and

rejected it, and then failed to request a leave of absence

svosequently,” so the court “must place the blame for the

breakdown in the interactive process with [Humphrey].”

App. 45a.

C. The Ninth Circuit’s Decision.

Humphrey appealed the district court’s decision to the

Ninth Circuit. In her appeal, Humphrey did not challenge

the district court’s holding that a right to work at home was

not a reasonable accommodation. App. 2la n.16.

Accordingly, the only issues on appeal were (1) whether a

leave of absence was a reasonable accommodation and (2)

whether MHA failed to engage in the interactive process.

The Ninth Circuit reversed the judgment of the district

court. App. 24a. In an opinion by Judge Reinhardt, the

court made two pertinent holdings. First, it held that a leave

of absence was a reasonable accommodation as a matter of

law because it could have “plausibly” enabled Humphrey to

perform her job adequately. App. 2la-22a. Second, the

Ninth Circuit held — again, as a matter of law — that MHA

violated the ADA because it did not offer Humphrey a leave

of absence. App. 18a-21a.

1. After observing that Humphrey could show she was a

“qualified individual with a disability” under the ADA “so

long as she is able to perform the essential functions of her

job ‘with or without reasonable accommodation,” the Ninth

Circuit looked to the EEOC regulations to conclude that a

“eave of absence for medical treatment may be a reasonable

accommodation under the ADA.” App. 14a. The court also

noted that “[w]e have held that where a leave of absence

would reasonably accommodate an employee’s disability

and permit him, upon his return, to petform the essential

functions of the job, that employee is otherwise qualified

under the ADA.” Id. (citations omitted).

MHA relied on Myers v. Hose, 50 F.3d 278 (4th Cir.

1985), for the proposition that any leave of absence could not

be a reasonable accommodation because there was no

evidence concerning the leave’s duration. The Ninth Circuit

did not address Myers, noting only that “the ADA does not

require an employee to show that a leave of absence is

certain or even likely to be successful to prove that it is a

reasonable accommodation.” App. 14a-15a. According to

Judge Reinhardt, although Dr. Jacisin’s letter — the only

evidence pertaining to a leave of absence — never specified

how long her impairment would last, the length of leave

necessary to treat her impairment, or whether such a leave

would be effective in allowing her to return to work, the

letter nonetheless was “sufficient to satisfy the minimal

requirement that a leave of absence could plausibly have

enabled Humphrey adequately to perform her job.” App.

15a-16a. Thus, without requiring any proof as to the

necessary length of leave, the panel held that MHA violated

the ADA as a matter of law by failing to offer a leave of

absence before terminating Humphrey’s position. Jd. Judge

Reinhardt did not cite ADA case law for the “plausibly have

enabled” test. Rather, he relied on Kimbro v. Atlantic

Richfield Corp., 889 F.2d 869 (9th Cir. 1989), a case

interpreting the State of Washington’s civil rights law. App.

15a.

After concluding that a leave of absence “was a

reasonable accommodation for Humphrey’s disability”

because it could “plausibly” enable her to function at work

(App. 2la-22a), the Ninth Circuit also held that because

MHA had a policy of giving six-month leaves of absence to

disabled employees, it had “conceded that granting a leave of

absence would not have posed an undue hardship.” App.

22a. The court thus held “as a matter of law . . . that MHA

violated the ADA’s’ reasonable accommodation

requirement.” Jd.

2. Judge Reinhardt then addressed the district court’s

conclusion that Humphrey could not prevail under the Act

because she earlier had refused to accept a leave of absence

as a reasonable accommodation. App. 18a-22a. In the Ninth

Circuit’s view, the pertinent legal question was as follows:

“was MHA obligated to suggest a leave of absence or to

explore other alternatives in response to Humphrey’s request

for a work-at-home position, or was it Humphrey’s burden to

make an express request for a leave of absence before she

was terminated?” App. 18a.

In answering this question, the Ninth Circuit reviewed

the EEOC’s regulations and Enforcement Guidance on

Reasonable Accommodation, as well as its own precedent.

Summarizing its decision in Barnett v. U.S. Air, 228 F.3d

1105 (9th Cir. 2000), cert. granted, 121 S. Ct. 1600 (Apr. 16,

2001), the Ninth Circuit held that “[o]nce an employer

becomes aware of the need for accommodation, that

employer has a mandatory obligation under the ADA to

engage in an interactive process with the employee to

identify and implement appropriate reasonable

accommodations.” App. 18a. While the court suggested that

the interactive process requires communication by both

employers and employees, and that “neither side can delay or

obstruct the process,” App. 19a, the court also observed that

“{e]mployers, who fail to engage in the interactive process in

good faith, face liability for the remedies imposed by the

statute if a reasonable accommodation would have been

possible.” Jd.

The Ninth Circuit also characterized the duty to

accommodate as a “continuing duty” that is “not exhausted

by one effort.” Jd. Moreover, citing the Enforcement

Guidance, Judge Reinhardt noted that the employer’s

obligation to provide a reasonable accommodation “extends

beyond the first attempt at accommodation and continues

when the employee asks for a different accommodation or

where the employer is aware that the initial accommodation

is failing and further accommodation is needed.” Jd. Based

on this rule, the Ninth Circuit concluded that Dr. Jacisin’s

short letter diagnosing Humphrey with OCD alerted MHA

“to the possibility that any initial arrangement that kept

Humphrey on the job might not be effective and that a leave

of absence might ultimately be necessary to accommodate

her disability.” App. 20a.

The court acknowledged that Humphrey never requested

a leave of absence prior to her termination. App. 8a. The

panel also specifically assumed that MHA previously had

offered her a leave of absence, and that she had rejected it.

App. 4a, 20a. In the court’s view, however, that earlier offer

of a leave of absence — and Humphrey’s rejection of it — did

not absolve MHA of its “continuing duty” to provide her

with a reasonable accommodation (in this case, a leave of

absence.) “We conclude as a matter of law, that ... MHA

had an affirmative duty under the ADA to explore further

methods of accommodation before terminating Humphrey.”

App. 18a.”

REASONS FOR GRANTING THE WRIT

The Ninth Circuit’s decision raises two important

questions under the ADA, both of which implicate a conflict

among the courts of appeals. The first question is whether

an employer violates the ADA when the employer does not

offer an accommodation for a second time that the employee

knows about and already has rejected. The second question

is whether a leave of absence can ever constitute a

reasonable accommodation under the ADA where there is no

effort to define the duration of the leave, and whether an

employee must demonstrate that such a leave would likely

enable her to perform the functions of the job adequately

upon her return. The Ninth Circuit’s resolution of both of

these questions cannot be reconciled with the decisions of

other federal circuits, and reflects a fundamental

2 Although the parties disputed whether Humphrey asked for a

leave of absence at the time of her termination (MHA contends she did

not), this dispute made no difference to the Ninth Circuit, for the panel

found that MHA had a duty to offer Humphrey a leave of absence before

her termination and without any specific request from her. App. 18a.

misunderstanding of the terms, structure, and intent of the

ADA.

1. The Ninth Circuit’s holding that MHA violated the

ADA because it did not offer Humphrey a leave of absence

conflicts with a decision of the Sixth Circuit, anc is in

serious tension with the decisions of numerous other circuits.

These circuits have held that an employee’s rejection of an

accommodation and her failure specifically to request a self-

evident accommodation precludes her from recovering in an

ADA action. The position of the Ninth Circuit, which

relieves an eMipivwyee of any responsibility to suggest an

accommodation that she knows about and already has

rejected, cannot be squared with the ADA’s terms, structure, .

or purpose.

2. The Ninth Circuit also required MHA to offer

Humphrey a leave of absence without demanding any proof

as to the length of the leave necessary to enable her to return

to work. The panel’s only limitation on imposing a leave of

absence requirement was that the leave must “plausibly”

enable Humphrey to perform her job adequately. The panel

explicitly rejected the higher standard of “likely.” This

holding conflicts with numerous courts of appeals in two

ways. First, several courts of appeals recognize that a leave

of indefinite duration is never a reasonable accommodation

because its indefinite duration prevents an employer from

assessing the burdens it will face by allowing an employee to

stay out of work. Second, the Eleventh Circuit requires an

employee to demonstrate that the leave will “likely” enable

her to return to work before the employer must offer leave as

a reasonable accommodation, and not the lower standard of

“plausibly.”

I. THE NINTH CIRCUIT’S HOLDING THAT AN

EMPLOYER VIOLATES THE ADA BY NOT

OFFERING AN ACCOMMODATION THAT THE

EMPLOYEE KNOWS ABOUT AND ALREADY

HAS REJECTED CONFLICTS WITH A DECISION

OF THE SIXTH CIRCUIT AND WITH THE

TERMS AND STRUCTURE OF THE ADA.

The Ninth Circuit concluded that MHA had “a

continuing duty” to explore further methods of

accommodation before terminating Humphrey, App. 22a,

even “assum{ing] that Humphrey terned down [MHA’s

earlier offer of] the leave of absence.” App. 20a. In other

words, the Ninth Circuit held that MHA was liable under the

ADA for failing to offer a leave of absence for a second time

as a “reasonable accommodation,” even if Humphrey knew

about the leave of absence option and refused to take it. That

holding conflicts with the position of the Sixth Circuit, and is

in tension with many other circuits. These courts hold that

an employee’s failure to accept a reasonable accommodation

and/or to suggest one that is obvious to her precludes her

ADA claim.

1. The ADA prohibits an employer from “not making

reasonable accommodations” to the “known physical or

mental limitations of an otherwise qualified individual with a

disability.” 42 U.S.C. § 12112(b)(5)(A). The regulations

and guidelines to the ADA recommend that an employer and

employee engage in an “interactive process” in order “to

determine the appropriate reasonable accommodation,” 29

C.F.R. § 1630.2(0), and that such accommodation is “best

determined through a flexible, interactive process that

involves both the employer and the qualified individual with

a disability.” 29 C.F.R. Pt. 1630, App. § 1630.9. The

regulations also make explicit the employee’s role in finding

and accepting reasonable accommodations, providing that if

a “qualified individual with a disability ... rejects a

reasonable accommodation ..., the individual will not be

considered a qualified individual with a disability.” 29

C.F.R. § 1630.9(d).

The Ninth Circuit’s view that an employer violates the

ADA by not offering a reasonable accommodation to an

employee that the employee not only knows about, but

already has rejected, conflicts with the Sixth Circuit’s

decision in Hankins v. The Gap, Inc., 84 F.3d 797, 798-99

(6th Cir. 1996), a case upon which the district court heavily

relied. App. 37a-38a. In Hankins, the employee alleged that

her disability of migraine headaches caused her to make

several performance errors that led to her termination. The

employee argued that to accommodate her disability, she

should have been transferred to a less strenuous department.

84 F.3d at 799.

The Sixth Circuit rejected her claim, holding that her

employer already had offered her a_ reasonable

accommodation that she rejected, namely, periodic leave

time for when she experienced migraines. Jd. The court

noted that the employee had ample paid sick leave, personal

days, vacation, and other time off which she never used. Jd.

at 801. When the employee argued that her employer had a

duty to “notify” her of these possibilities or “recommend”

that she stop working to attend to her migraines, the court

observed, “[w]hile it is true that an employer should

normally advise an employee of available accommodations

once the employee informs the employer that an

accommodation is needed, it is equally true that an employer

has no duty to reiterate self-evident options to an employee

when she is clearly already aware of them.” Td.

Accordingly, the employee’s “refusal to accept available

accommodations precludes her from arguing that other

accommodations should also have been provided.” Jd. at

802. See also Webster v. Methodist Occupational Health

Centers, Inc., 141 F.3d 1236, 1238 (7th Cir. 1998) (“An

employee cannot refuse reasonable accommodations during

the interactive process the statute contemplates, and then

after dismissal suggest something different and claim that the

employer still has the duty to consider further

accommodations.”). Despite the district court’s reliance on

the clear language of Hankins, the Ninth Circuit never

addressed Hankins in its opinion.

The Ninth Circuit’s decision also cannot be reconciled

with Mole v. Buckhorn Rubber Products, Inc., 165 F.3d 1212

(8th Cir. 1999). In Mole, the Eighth Circuit made clear not

only that an employee has a duty to suggest accommodations

that would be helpful to her, but also that the employee must

exercise that duty prior to being terminated. In Mole, the

employee, whose employer had accommodated her disability

by offering her several leaves of absence, was terminated

after a series of performance problems. Jd. at 1216. After

being notified of her termination, the employee suggested a

number of accommodations for her disability. Jd. The

Eighth Circuit dismissed her action, holding that it was

critical that the plaintiff never advised her employer “what

accommodation specific to her position and workplace was

needed.” Jd. at 1217. According to the Eighth Circuit, the

employee could not “expect the employer to read her mind

and know she secretly wanted a particular accommodation

and then sue the employer for not providing it.” Jd. at 1218

(citation omitted). Moreover, Mole’s request for

accommodation on the day of her termination, like the

alleged request in this case, was in the Eighth Circuit’s view

“a request for reinstatement, not a timely request for on-the-

job accommodations,” for the employee “could offer no

assurance the requested accommodations would remedy her

many job performance deficiencies.” Id.

The Eighth Circuit’s approach in Mole cannot be squared

with the Ninth Circuit’s decision in this case. Here, the

Ninth Circuit assumed that Humphrey previously had

rejected an offer of a leave of absence. In _ those

circumstances, as the Eighth Circuit understood in Mole,

MHA cannot be required to “read her mind” and determine

that, in fact, she wanted a leave of absence. In addition, even

assuming Humphrey requested a leave at the time of her

termination — which MHA submits she did not do — such a

request would be untimely under Mole.

Other circuits have suggested that an employee must

actively participate in identifying accommodations that

would be helpful to her to satisfy her duty to engage in the

interactive process. For example, the Fifth Circuit in Taylor

v. Principal Financial Group, Inc., 93 F.3d 155 (Sth Cir.

1996), observed:

[w]here the disability, resulting limitations, and

necessary reasonable accommodations, are not open,

obvious, and apparent to the employer, as is often the

case when mental disabilities are involved, the initial

burden rests primarily upon the employee, or his

health-care provider, to specifically identify the

disability and resulting limitations, and to suggest the

reasonable accommodations.... [A] disabled

employee cannot remain silent and expect his

employer to bear the initial burden of identifying the

need for, and _ suggesting, an appropriate

accommodation.

Id. at 165 (emphasis added). See also Loulseged v. Akzo

Nobel Inc., 178 F.3d 731, 735 n4 (5th Cir. 1999)

(“Employers cannot be expected to anticipate all the

problems that a disability may create on the job and

spontaneously accommodate them .... [T]he imposition of

this burden on employees [to advise of specific

accommodation requests] underscores our recognition of the

employer’s inability to ‘read minds’ and the need for

disabled employees to remain active in the development of

solutions to their concerns”).°

2. The Ninth Circuit’s rationale is also inconsistent with

the letter and spirit of the ADA. The Act specifically

prohibits an employer from “not making reasonable

accommodations to the known limitations of an otherwise

qualified individual with a disability.” 42 U.S.C.

§ 12112(b)(5)(A) (emphasis added). “Qualified individual

with a disability,” in turn, is defined as an individual who,

“with or without reasonable accommodations, can perform

the essential functions of the employment position that such

individual holds or desires.” 42 U.S.C. § 12111(8). Thus,

by its terms, unless the limitations and accommodations are

known to the employer, the Act envisions some participation

by the employee in providing information (or knowledge)

about the employee’s_ limitations and potential

accommodations. The ADA’s purpose — to provide

employment opportunities for the disabled - also is

consistent with placing soine obligation on the employee to

suggest accommodations that would be helpful to her and

that she knows are available.

Any other reading would promote an unduly punitive

Statute that punishes an employer for not failing to offer an

accommodation that may not be apparent, but rewards an

* See also, e.g., Phelps v. Optima Health, Inc., 2001 WL 563921, at

*4-5 (1st Cir. May 30, 2001) (holding that an employer cannot be liable

under the ADA when the employee “turned down several job

opportunities suggested by [the human resources manager] and placed

significant conditions on her reassignment severely limiting [the

employer’s] flexibility”); Jones v. United Parcel Serv., 214 F.3d 402,

408 (3d Cir. 2000) (precluding ADA claim where the employee failed to

ask the employer for new position, and rejecting employee’s claim that

the employer “should have known” of the employee’s desire for

accommodation); Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1023

(7th Cir. 1997) (no employer liability under the ADA when the employee

did not propose any accommodations).

employee for withholding such information. For that reason,

the regulations make clear that if the failure to achieve

reasonable accommodation is not achieved stems from the

employee’s acts, liability for the employer does not ensue.

See 29 C.F.R. § 1630.9(d) (if a “qualified individual with a

disability ... rejects a reasonable accommodation ..., the

individual will not be considered a qualified individual with

a disability.”’).

The Ninth Circuit assumed that an employer must

provide an accommodation even where the employee

specifically could have requested the accommodation but did

not because such a rule “encoura[ges] employers to seek to

find accommodations that really work, and ... avoid{s] the

creation of a perverse incentive for employees to request the

most drastic and burdensome accommodation possible out of

fear that a lesser accommodation might be ineffective.”

App. 19a. That concern is unfounded. A rule that requires

employees to suggest all conceivable accommodations

would not necessarily bind the employee to any specific

accommodation; to the contrary, it allows both the employer

and the employee to discuss which of the options are most

effective and reasonable. But an employer should be able to

rely on an employee’s representation — either implicit

(because she has not asked) or explicit (because she has said

SO, aS was assumed in this case) — that she is not willing to

accept an accommodation that is readily available to her. An

opposite rule — which requires the employer to offer all

accommodations, even those accommodations that the

employee explicitly has rejected — could ultimately promote

actions that are inconsistent with the design of the Act by

encouraging employers to force accommodations on

employees for fear that a failure to do so will subject the

employer to ADA liability.

The Ninth Circuit’s holding leads to employer liability in

ways that Congress could never have intended. Under the

i se aa a

Ninth Circuit’s rule, the employer can never be sure that it

has done all it can to accommodate a worker before

terminating her employment, for there always is a chance

that if the employer had asked the employee just one more

time, the employee would have agreed to the

accommodation. Nothing in the ADA or the case law of any

other circuit supports such an outcome.

Il. THE NINTH CIRCUIT’S HOLDING THAT A

LEAVE OF ABSENCE THAT MIGHT

“PLAUSIBLY” ENABLE THE EMPLOYEE TO

RETURN TO WORK CONSTITUTES A

REASONABLE ACCOMMODATION,

NOTWITHSTANDING THE ABSENCE OF ANY

EVIDENCE AS TO THE DURATION OF THE

LEAVE, CONFLICTS WITH THE DECISIONS OF

NUMEROUS COURTS OF APPEALS.

In sharp contrast to several courts of appeals that hold an

indefinite leave of absence to be per se unreasonable, the

Ninth Circuit held that MHA should have provided

Humphrey with a leave of absence without requiring any

evidence concerning how long the leave needed to be or

whether the leave was likely to enable Humphrey to perform

her job. Dr. Jacisin’s letter, with its “some time off’

language, does not provide MHA with any idea as to the

length of the necessary leave or the likelihood that the leave

would improve Humphrey’s condition. The Ninth Circuit’s

view presents fundamental questions about the scope of the

ADA’s reasonable accommodation requirement, specifically

regarding whether an employer must bear undefined costs

toward an accommodation that may ultimately prove

ineffective.

1. While the ADA provides several examples of

accommodations that may be reasonable in appropriate

circumstances, neither the Act nor the regulations list a leave

of absence as a reasonable accommodation.’ A reference to

a leave of absence appears only in the Appendix to the

regulations, which consists of the EEOC’s Interpretive

Guidance to the ADA.° There, the EEOC provides that

“other accommodations could include permitting the use of

accrued paid leave or providing additional unpaid leave for

necessary treatment ....” 29 C.F.R. Pt. 1630, App.

§ 1630.2(0). |

The Ninth Circuit’s imposition of a leave of absence

requirement without any proof as to the duration of the leave

is inconsistent with the opinions of several other circuit

courts. In Myers v. Hose, 50 F.3d 278 (4th Cir. 1995), a case

MHA cited in its Ninth Circuit briefs but the panel never

addressed, the employee alleged that his employer failed to

reasonably accommodate his disability by refusing to grant

him a period of time in which to cure his disabilities. Jd. at

282. Because the employee set “no temporal limit” to the

desired period of leave, the court granted summary judgment

for the employer, holding that the employee’s requested

* The ADA provides that the following accommodations may be

reasonable: (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. § 12111(9).

> Although this Court has declined to rule on the deference owed

to the EEOC’s Interpretive Guidance, see Sutton v. United Airlines, 527

U.S. 471, 480 (1999), that guidance should be entitled to less deference

than the regulations. See, e.g., Ansonia Bd. of Educ. v. Philbrook, 479

U.S. 60, 70 n.6 (1986) (“EEOC guidelines are properly accorded less

weight than administrative regulations declared by Congress to have the

force of law.”); Smith v. Midland Brake, 180 F.3d 1154, 1165 n.5 (10th

Cir. 1999).

accommodation was per se unreasonable. According to

Chief Judge Wilkinson’s opinion for the court, “reasonable

accommodation does not require [the employer] to wait

indefinitely for [the employee’s}] medical conditions to be

corrected, especially in light of the uncertainty of the cure.”

Id. at 283.

The decisions of the First, Second, Fifth, Sixth, Seventh,

Tenth and Eleventh Circuits are in accord. See, e.g.,

Watkins v. J&S Oil Co., 164 F.3d 55, 62 (ist Cir. 1998)

(affirming district court’s conclusion that an employee’s

request that his employer leave his position open for an

indefinite period of time was unreasonable as a matter of

law); Parker v. Columbia Pictures Indus., 204 F.3d 326, 338

(2d Cir. 2000) (“The duty to make _ reasonable

accommodations does not, of course, require an employer to

hold an injured employee’s position open indefinitely.”);

Rogers v. International Marine Terminals, 87 F.3d 755, 759

(5th Cir. 1996) (“While [the employee] contends that IMT

was required to accommodate him by allowing him to enjoy

indefinite leave, this argument is meritless. ... Nothing in

the text of the reasonable accommodation provision requires

an employer to wait an indefinite period for an

accommodation to achieve its intended effect.”); Gantt v.

Wilson Sporting Goods Co., 143 F.3d 1042, 1047 (6th Cir.

1998) (“Reasonable accommodation does not require the

employer to wait indefinitely for an employee’s medical

condition to be corrected.”’”) (citation omitted); Nowak v. St.

Rita High School, 142 F.3d 999, 1004 (7th Cir. 1998) (“The

ADA does not require an employer to accommodate an

employee who suffers a prolonged illness by allowing him

an indefinite leave of absence.””); Hudson v. MCI Telecomms.

Corp., 87 F.3d 1167, 1169 (10th Cir. 1996) (“({T]he ADA

does not require an employer to grant an employee indefinite

leave as an accommodation.”); Duckett v. Dunlop Tire

Corp., 120 F.3d 1222, 1226 (11th Cir. 1997) (following the

Fourth Circuit’s decision in Myers). Cf. Boykin v.

ATC/Vancom of Colorado, L.P., 247 F.3d 1061, 1064 (10th

Cir. 2001) (an employer’s duty to reassign a disabled

employee does not obligate the employer “to place a disabled

employee on indefinite leave until a position for which he is

qualified opens up.”).

2. The Ninth Circuit’s decision departs from the other

circuits in another related way. The court below did not

require Humphrey to show that a leave of absence would

“likely” accommodate her disability by enabling her to

return to work in the future. Rather, without citing any ADA

case law, the panel explicitly held that the “ADA does not

require an employee to show that a leave of absence is likely

to be successful.” App. 15a (emphasis added). The panel

instead relied upon a Ninth Circuit case that interpreted the

State of Washington’s civil nghts law to hold that a leave is

reasonable so long as the employee can “satisfy the minimal

requirement that a leave could plausibly have enabled [the

employee] adequately to perform her job.” App. 15-16a

(emphasis added).

Other circuits interpreting the ADA have required more

from an employee seeking to prove that a leave of absence is

reasonable. In Duckett v. Dunlop Tire Corp., 120 F.3d 1222

(11th Cir. 1997), for example, the employee argued that

rather than terminating him, his employer should have

allowed him to continue on leave for at least the remaining

two months provided by the employer’s salary continuation

program. The Eleventh Circuit rejected this argument

because the employee “could not represent that he /ikely

would have been able to work within a month or two,” and

“had no way of knowing when his doctor would allow him to

return to work in any capacity.” Jd. at 1226 (emphasis

added). His request for leave was therefore treated as one for

an indefinite duration, and unreasonable. The Eleventh

Circuit’s “likely” requirement directly conflicts with the

Ninth Circuit’s opinion, which explicitly rejected “likely” as

the proper standard. App. 15a.

The Tenth Circuit similarly requires that an employee

present some evidence to demonstrate that a leave of absence

will allow her to resume her duties, generally in the form of

evidence regarding the duration of the employee's

impairment. Hudson v. MCI Telecomms. Corp., 87 F.3d

1167, 1169 (10th Cir. 1996), is an example. There, although

the employee set forth evidence from her treating physician

that her impairment was not “permanent,” the Tenth Circuit

rejected her claim that she was entitled to a leave of absence,

holding that the plaintiff failed to “present any evidence of

the expected duration of her impairment as of the date of her

termination,” such as “when she could expect to resume her

regular duties.” Jd. The Tenth Circuit has explained the

reason for its rule: “Without an expected duration of an

impairment, an employer cannot determine whether an

employee will be able to perform the essential function of

the job in the near future and therefore whether the leave

request is a ‘reasonable’ accommodation.” Cisneros Vv.

Wilson, 226 F.3d 1113, 1130 (10th Cir. 2000), overruled on

other grounds by Board of Trustees v. Garrett, 121 S. Ct.

955 (2001). In other words, the Tenth Circuit views the

duration of an employee’s impairment as a gauge of the

likelihood that she will resume her duties in the near future —

the longer the employee’s impairment, the less likely she is

to return to work within a reasonable time period. Simply

put, as in the Eleventh Circuit, an employee in the Tenth

Circuit must demonstrate significantly more than merely that

her leave might “plausibly” have enabled her to perform her

job.

6 See also Cisneros v. Wilson, 226 F.3d 1113, 1130 (10th Cir.

2000) (“this court has required an employee to provide an expected

duration of the impairment (not the duration of the leave request).”),

overruled on other grounds by Board of Trustees v. Garrett, 121 S. Ct.

3. The circuits that have held that an indefinite leave is

per se unreasonable have come to this conclusion for two

important reasons. First, an indefinite leave places the

employer in an unenviable business position: the employer

must hire “temporary” workers — often for prolonged periods

— to fill the position of a disabled employee, without any idea

of when, or even whether, the disabled employee will return

to work. The Fourth Circuit in Myers described this

quandary in addressing why the defendant-county was not

required to provide an indefinite leave to a disabled bus

driver:

[ijn mandating only those modifications that qualify

as reasonable, Congress clearly meant to avoid

placing employers in an untenable business position.

[The plaintiff's] requested accommodation, however,

wouid do just that. The County must promptly fill

transit positions with qualified drivers lest public

vehicles go unmanned; every business day, there are

routes to be serviced and passengers to be

transported. For the County to be forced to stand by

— or hire temporary help — while [the plaintiff]

endeavors to improve his failing health would be a

significant burden.

50 F.3d at 283 (internal citations omitted).

Moreover, a per se rule rejecting indefinite leave

comports with the text of the ADA. Under the statute, the

term “qualified individual with a disability” is an “individual

with a disability who, with or without reasonable

accommodation, can perform the essential functions of the

position that such individual holds or desires.” 42 U.S.C.

§ 12111(8). Notably, in defining which individuals are

955 (2001); Taylor v. Pepsi-Cola Co., 196 F.3d 1106, 1110 (10th Cir.

1999) (no ADA violation where a plaintiff “failed to present evidence of

the expected duration of the impairment.”).

“qualified,” the Act uses the present tense, i.e., “can perform

the essential functions” not “will or may be able to perform

the essential functions.” As the Fourth Circuit in Myers

observed, “these provisions contain no reference to an

individual’s future ability to perform the essential functions

of his position. ... Rather, reasonable accommodation is by

its terms most logically construed as that which presently, or

in the immediate future, enables the employee to perform the

essential functions of the job in question.” 50 F.3d at 283

(latter emphasis added). In an analogous context —

interpreting the definition of “disability” — this Court has

emphasized the importance of interpreting provisions of the

ADA by reference to the tense used: “Because the phrase

‘substantially limits’ appears in the Act in the present

indicative verb form, we think the language is read as

requiring that a person be presently — not potentially or

hypothetically — substantially limited in order to demonstrate

a disability.” Sutton v. United Airlines, Inc., 527 U.S. 471,

482 (1999).

The Ninth Circuit’s approval of indefinite leave has

significant real world consequences for employers. The

ADA undoubtedly requires employers to incur costs in

accommodating disabled employees. For instance, requiring

an employer to provide a new keyboard or a sign language

interpreter to an employee imposes costs on the employer.

The ADA nonetheless might require these accommodations

if they are “reasonable” under the circumstances and do not

impose an “undue hardship.” And because there is a defined

cost associated with these accommodations, the employer

can assess whether the cost is reasonable under the

circumstances, i.e., that it does not outweigh the benefit of

providing the accommodation.

Where the Ninth Circuit’s decision diverges from the

approach of the other courts of appeals is in requiring

employers to assume a cost that is undefined and potentially

unjustified. Even a leave of absence for a definite period is,

by its nature, somewhat speculative. Unlike the computer

keyboard or sign language interpreter, there is no way to

know for certain if the leave of absence will cure the

employee’s impairment. But ar. indefinite leave of absence,

particularly one that is not supported by any suggestion that

it is likely to help the employee, imposes a significantly

greater burden on the employer. An employer that must

allow an employee an indefinite leave of absence cannot

determine whether the leave is reasonable under the

circumstances because it simply does not know what the

circumstances are. For the same reason, the employer cannot

determine whether allowing such leave poses an undue

hardship, and thus cannot defend against an ADA claim even

on this ground. Moreover, without any information about

whether such a leave would allow the employee to return to

work, the employer cannot assess whether the burden would

be reasonable compared to the benefit. Anything is

“plausible.” What is meaningful to the employer is whether

something is “likely.” Accommodation without any

understanding of the costs associated with it is, by definition,

unreasonable.

This Court should grant certiorari to clarify if and when a

leave of absence is a reasonable accommodation under the

ADA.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

F. CURT KIRSCHNER, JR

DIPANWITA DEB AMAR

O’MELVENY & MYERS LLP

275 Battery Street

San Francisco, CA 94111

(415) 984-8700

- Respectfully submitted,

WALTER DELLINGER

(Counsel of Record)

SRI SRINIVASAN*

ERIKA FRICK*

JOHN B. OWENS

O’MELVENY & MYERS LLP

555 13th Street, N.W.

Washington, D.C. 20004

(202) 383-5300

* Admitted in California only

Attorneys for Petitioner

APPENDIX

la a

APPENDIX A : .

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 98-15404

D.C. No. CV-96-06025-REC Be

CAROLYN HUMPHREY,

Plaintiff-Appellant,

MEMORIAL HOSPITALS ASSOCIATION

Defendant-Appellee

Appeal from the United States District Court for the Eastern

District of California (Fresno)

Robert E. Coyle, District Judge, Presiding

Filed February 13, 2001 3

Before: KRAVITCH,’ REINHARDT, and T.G. NELSON,

Circuit Judges.

OPINION

REINHARDT, Circuit Judge:

Carolyn Humphrey brought suit against her former

employer, Memorial Hospitals Association (MHA), under

the Americans with Disabilities Act (ADA) and its

California counterpart, the Fair Employment and Housing

Act (FEHA) for failure to reasonably accommodate her

disability and wrongful termination. We reverse the district

court’s grant of summary judgment in favor of MHA.

' ‘The Honorable Phyllis A. Kravitch, Senior Judge, United States

Court of Appeals for the Eleventh Circuit, sitting by designation.

I. BACKGROUND

Humphrey worked for MHA as a medical transcriptionist

from 1986 until her termination in 1995. At the time of her

termination, she was earning approximately $11.00 per hour.

Throughout her employment at MHA, MHumphrey’s

transcription performance was excellent and consistently

exceeded MHA’s standards for speed, accuracy, and

productivity.

In 1989, Humphrey began to experience problems

getting to work on time, or at all. She engaged in a series of

obsessive rituals that hindered her ability to arrive at work on

time. She felt compelled to rinse her hair for up to an hour,

and if, after brushing her hair, it didn’t “feel right,” she

would return to the shower to wash it again. This process of

washing and preparing her hair could take up to three hours.

She would also feel compelled to dress very slowly, to

repeatedly check and recheck for papers she needed, and to

pull out strands of her hair and examine them closely

because she felt as though something was crawling on her

scalp. She testified that these obsessive thoughts and rituals

made it very difficult to get to work on time. Once she

realized that she was late, she would panic and become

embarrassed, making it even more difficult for her to leave

her house and get to work.

Due to Humphrey’s difficulties with tardiness and

absenteeism, MHA gave her a “Level I’ disciplinary warning

in June 1994. This warning required her to call her

supervisor before the time she was due to be at work if she

was going to be late or absent. Humphrey’s mental

obsessions and peculiar rituals only grew worse after the

warning, and her attendance record did not improve; nor did

her call-in rate. In December 1994, she received a “Level

Ir’ warning, which documented four tardy days and one

unreported absence over a two week period.

When MHA gave Humphrey the Level III warning, she

was told that she was expected to schedule and keep

counseling appointments with the Employee Assistance

Program (EAP). This counseling consisted of “tips,” helpful

hints such as getting up earlier and laying out clothes the

night before. Humphrey found this somewhat helpful and

attended several sessions, but her efforts to follow the “tips”

were not particularly successful. After watching an episode

of the Oprah Winfrey show devoted to attention deficit

disorder, Humphrey began to suspect that her debilitating

symptoms and inability to get to work on time might be

related to a medical condition. In May, 1995, she asked

MHA’s EAP nurse, Elizabeth Pierson, if she could see a

psychiatrist for an evaluation. Pierson agreed, and set up an

appointment for a diagnostic evaluation and psychological

testing with Dr. John Jacisin. MHA paid for the consultation

through its EAP program.

Humphrey first saw Dr. Jacisin on May 12, 1995. Dr.

Jacisin diagnosed her with obsessive compulsive disorder

(OCD).” He sent a letter explaining that diagnosis to Pierson

on May 18, 1995, telling her that Humphrey’s OCD “is

directly contributing to her problems with lateness.” In

addition, the letter stated:

2 Individuals with obsessive compulsive disorder experience

obsessions or compulsions or both. See American Psychiatric Ass’n,

Diagnostic and Statistical Manual of Mental Disorders 417 (4th

ed.1994). Obsessions are recurring or persistent thoughts, images, or

impulses that, rather than being voluntarily produced, seem to invade a

person’s consciousness despite his attempts to ignore, suppress, or

control them. See id. at 418. Compulsions are urges or impulses to

commit repetitive acts that are apparently meaningless, stereotyped, or

ritualistic. See id. The disorder was recently made famous by Jack

Nicholson’s Oscar-winning portrayal of a man with OCD in the 1998

film As Good As it Gets.

i ——

i sdpeseepenenenemmanenestenenn sacchari e

I believe that we can treat this, although, the treatment

may take a while. I do believe that she would qualify

under the Americans with Disability Act, although, I

would like to see her continue to work, but if it is proving

to be a major personnel problem, she may have to take

some time off until we can get the symptoms better under

control.

Humphrey sought treatment from Dr. Jacisin and from a

psychologist, Dr. Litynsky. Dr. Litynsky, like Dr. Jacisin,

diagnosed Humphrey with OCD and concluded that- it was

probable that the OCD caused her absenteeism and tardiness.

Humphrey had difficulty paying for the necessary services,

however, because her insurance did not cover the treatment.

In addition, due to the severe symptoms of her ailment,

Humphrey had great difficulty showing up for appointments.

Both doctors considered her inconsistency in treatment in

1995 and 1996 to be the result of the disorder as well as her

financial problems.’

On June 7, 1995, Humphrey met with Pierson and

Humphrey’s supervisor, Carol Evans-Bowlsby, to review Dr.

Jacisin’s letter. What happened at this meeting is disputed.

MHA contends that Humphrey rejected the leave of absence

alluded to in the doctor’s letter. Humphrey says that she was

never Offered a leave of absence and never rejected one.

Instead, she testified that “they asked if I would like to keep

working. And I said yes.” She did not remember anyone

using the term “leave of absence.” (As it tums out, this

factual dispute is not material to our ruling on appeal.)

> Dr. Litynsky testified, “[h]er obsessive compulsive disorder was

certainly the primary factor in her inability to appear for most of her

missed sessions with me. If the same set of events were occurring while

she was employed, I would believe that it was very likely a major factor

in her nonappearance at work.”

Humphrey did want to try to keep working, if possible,

and Pierson told her that she could have an

“accommodation” that would allow her to do so. Pierson

suggested, as an accommodation, that Humphrey have a

friend or family member drive her to work every day.

Humphrey said that this suggestion would not be feasible.

Pierson next offered a flexible start-time arrangement in

which Humphrey could begin work any time within a 24

hour period on days on which she was scheduled to work.

Pierson asked her to think about whether this would help her

and whether any other accommodation would be desirable,

and asked her to submit any additional requests for

accommodation in writing. A few days later, Humphrey sent

Pierson a letter accepting the flexible start time arrangement,

and saying that she “would still do my best to be at my work

station at the earliest possible hour.”

Nevertheless, Humphrey continued to miss work. It is

disputed whether Humphrey’s supervisor warned her about

her conduct during the remainder of that summer. It is

undisputed, however, that no one from MHA broached the

subject of modifying the accommodation during that period.

On September 18, 1995, Humphrey, upset about her

continuing problems, sent Pierson an e-mail message asking

for a new accommodation because the then-current one

seemed to be failing:

Dear Liz:

It has now been a few months since I sent you a memo

regarding how my _ disability would best be

accommodated as far as my job performance. I have

since come to the conclusion that I would be able to put

in considerable more hours [sic] and be much more

productive if I were able to work from my home as a lot

of other transcriptionists are doing.... I think this would

be the ideal way to accommodate my diagnosed

disability.

MHA allows certain medical transcriptionists to work out

of their homes. Dr. Jacisin was not asked by anyone at

MHA for his opinion on the work-at-home request. After

Humphrey’s termination, Jacisin said that working at home

“might accommodate some of her work issues” but might be

“anti-therapeutic.” He testified, in his deposition in this

lawsuit, that he felt working at home was an accommodation

which would have been worth trying because it was

necessary for Humphrey to earn money and increase her self-

confidence.

In any event, Humphrey’s request was summarily denied.

In an e-mail message, Pierson denied her request for work-

at-home accommodation on the ground of Humphrey’s

disciplinary warnings for tardiness and absenteeism. Pierson

did not suggest an alternative accommodation or indicate

that MHA would be receptive to reassessing its arrangements

to accommodate Humphrey in light of the apparent failure of

the flexible work schedule arrangement. Instead, she wrote:

It is departmental policy that if you are involved in any

disciplinary action you are ineligible to be a home based

transcriptionist as per the AT HOME ARRANGEMENT

FOR TRANSCRIPTIONISTS. Since you are currently

involved in the discipline process, you are ineligible for

being based at home. During our 6/7/95 meeting, you

requested to be accommodated for your disability by

having a flexible start time, stating that you would have

no problems staying for a full shift once you arrived.

You were given this flexible start time accommodation

which continues to remain in effect. As for your

productivity, your manager indicated that you

consistently meet your hourly productivity requirements

when you are at work.

Pierson’s comment regarding Humphrey’s productivity

at work was typical of Humphrey’s performance evaluations,

which recognized her high level of competence but were

ie ete ne tT

tarnished by the problems caused by her disability. For

example, in her annual performance review completed on

September 26, 1995-- approximately two weeks before she

was terminated--Humphrey exceeded expectations in

minutes typed per shift and in errors per 130 lines checked.

She was one of the only transcriptionists who could

accurately transcribe the comments of a particular group of

physicians. Her review noted that this was “a very difficult

task as the majority of physicians speak with very

pronounced accents. You have done this very well as you

have learned the accents and have become familiar with the

styles.” She was regarded as very cordial, considerate,

honest, and tactful.

Humphrey’s evaluation indicates that were it not for her

ailment, she would have been a model employee. The only

negative ratings she received were in relation to the problems

caused by the interference of her symptoms and the

accummodation of flexible start time.’ Her evaluation stated

that her recent unscheduled absences were “unaccepiable,”

and advised that correcting her attendance problem was “a

major goal for the upcoming year.” During a meeting with

her supervisor, Julie Vieira, to discuss her evaluation,

Humphrey again raised the issue of working at home, but

was told that she would have to be free of attendance

problems for a year before she could be considered for an at-

home transcriptionist position. Neither Humphrey nor her

supervisor suggested a medical leave of absence at this

meeting.

* For example, she was criticized because she was “not able to learn

and transcribe Pathology because of your inconsistent work hours. You

are scheduled to start work at 10:00 a.m. but do not come to work before

4:00 p.m. which is after the deadline FOR Pathology.” However, at this

time Humphrey had been given permission to arrive at work after 4:00

p.m. in accordance with the flexible start-time accommodation.

———

Humphrey was absent two more times, and on October

10, 1995, Vieira fired her. MHA’s stated reason for the

termination was Humphrey’s history of tardiness and

absenteeism. Humphrey testified that after learning of her

termination, she went across the hall to Pierson’s office and

asked if she might take a leave of absence instead of lose her

job, but that Pierson refused and told her that she had had her

chance at accommodation. Pierson denies that Humphrey

requested a leave of absence on the day of her discharge.

MHA concedes that it would have granted the request if

Humphrey had asked for a leave of absence prior to her

termination, as MHA had a policy of permitting medical

leaves of absence to employees with disabilities.

On September 6, 1996, Humphrey brought suit against

MHA for violation of the ADA and the FEHA.” The district

court granted MHA’s motion for summary judgment on the

theory that MHA had satisfied its duty to reasonably

accommodate Humphrey’s disability. The district court

found it “dispositive ... that Plaintiff was initially offered a

leave of absence and rejected it, and then failed to request a

leave of absence subsequently.” Humphrey appeals the

judgment entered in favor of MHA.

II. DISCUSSION

Humphrey contends that MHA violated the ADA and the

FEHA by failing to reasonably accommodate her disability

* Humphrey also brought claims for violation of the Family and

Medical Leave Act, 29 U.S.C. §§ 2601-2654, and the California Family

Rights Act, Cal.Govt.Code § 12945.2. However, Humphrey does not

appeal the adverse judgment on those claims.

and by terminating her because of that disability. The ADA°

provides that “[n]o covered entity shall discriminate against

a qualified individual with a disability because of the

disability...” 42 U.S.C. § 12112(a). Title I of the ADA

insures full opportunities for people with disabilities in the

workplace by requiring reasonable accommodation of

employees’ disabilities by their employers. Under the ADA,

the term “discriminate” is defined as including “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.

§ 12112(b)(5)(A). To prevail on a claim of unlawful

discharge under the ADA, the plaintiff must establish that he

is a qualified individual with a disability and that the

employer terminated him because of his disability. Cooper

v. Neiman Marcus Group, 125 F.3d 786, 790 (1997). The

ADA defines a “qualified individual with a disability” as “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.”

42 U.S.C. § 12111(8). A “disability” is “a physical or

mental impairment that substantially limits one or more of

* Because the FEHA provisions relating to disability discrimination

are based on the ADA, decisions interpreting federal anti- discrimination

laws are relevant in interpreting the FEHA’s similar provisions. See

Brundage v. Hahn, 57 Cal.App.4th 228, 235, 66 Cal.Rptr.2d 830 (Cal.Ct.

App.1997). We analyze Humphrey’s state and federal disability claims

together, relying on federal authority in the absence of contrary or

differing state law. See id.

10a

the major life activities of such individual.”’ 42 U.S.C.

§ 12102(2)a).

In ADA cases, as in all appeals, we review a grant of

summary judgment de novo. McAlindin v. County of San

Diego, 192 F.3d 1226, 1232 (9th Cir.), amended 201 F.3d

1211, and cert. denied, 530 U.S. 1243, 120 S.Ct. 2689, 147

L.Ed.2d 961 (2000).

A. QUALIFIED INDIVIDUAL WITH A DISABILITY

Because the district court granted summary judgment to

MHA on the ground that it reasonably accommodated

Humphrey, the court did not address whether Humphrey is a

qualified individual with a disability. However, MHA asks

us to uphold the judgment on the alternate ground that

Humphrey is not disabled and that she is not a “qualified

individual” for purposes of the ADA. Because we reject

MHA’s reasonable accommodation argument, we consider

its alternate ground here.

Most of the issues relating to Humphrey’s status as a

qualified individual with a disability are legal. The primary

factual dispute arises out of an equivocal report and

declaration by defense expert Dr. Weissman. The report

raises some question regarding the testimony of Drs. Jacisin

and Litynsky that Humphrey suffered from OCD and that her

condition caused her attendance problems. Dr. Weissman

declares that although Humphrey may have suffered from

OCD with psychotic features while employed by MHA, it is

also possible that she was suffering from brief psychotic

delusional episodes rather than OCD. He continues in his

report: “It is a mistake to assume that the only explanation

’ The statute’s definition also includes “having a record of such an

impairment,” 42 U.S.C. § 12102(2)\B), or “being regarded as having

such an impairment,” 42 U.S.C. § 12102(2)(C). Humphrey argues only

that she has an actual impairment under § 12102(2)(A).

lla

for her tardiness (or of anyone’s) was obsessive compulsive

disorder. There are lots of other problems that can result in

chronic tardiness. And alternate sources of stress were

operating in 1994 in Ms. Humphrey’s life.” If, as Dr.

Weissman suggests, Humphrey’s difficulties getting to work

may not have stemmed from OCD but may have been

attributable to other “problems,” it is possible that Humphrey

might not be a qualified individual with a disability under the

ADA. Because Humphrey does not seek summary judgment,

we need not determine whether the conclusory and

somewhat ambiguous statements of Dr. Weissman are

sufficient to create a triable issue of fact as to whether she is

a qualified individual with a disability (OCD or otherwise).

Rather, for purposes of this appeal, we will assume without

deciding that MHA has presented sufficient evidence to

survive summary judgment on this point.

MHA also argues that Humphrey is not disabled for

purposes of the ADA because she is not substantially limited-

in one or more of her major life activities. The EEOC

regulations provide that “caring for oneself” is a major life

activity. 29 C.F.R. § 1630.2(i). According to the EEOC,

“[{ajn impairment substantially limits an individual’s ability

to care for him/herself if, due to the impairment, an

individual is significantly restricted as compared to the

average person in the general population in performing basic

activities such as getting up in the moming, bathing,

dressing, and preparing and obtaining food.” EEOC

Enforcement Guidance: Psychiatric Disabilities and the

ADA, FEP (BNA) 405:7461, at 7467 (March 25, 1997)

12a

[hereinafter EEOC Enforcement Guidance on Psychiatric

Disabilities].*

The facts are undisputed with regard to Humphrey’s

ability to care for herself.” The testimony of Humphrey and

Dr. Jacisin, her mental health provider, reflects that it took

Humphrey significantly more time than the average person

to accomplish the basic tasks of washing and dressing.

According to Humphrey, the process of washing and

brushing her hair alone could take several hours, and she at

times would prepare for work from eight o’clock in the

morning until five or six o’clock in the evening. Dr. Jacisin

testified that, on one OCD screening test, she was rated as

taking three times as long as most people to shower, wash

her hands, dress, and handle or cook food. MHA argues that

even if Humphrey’s ritualistic behaviors caused her to take

more time to complete basic activities than the average

person, she is not disabled under the ADA because her OCD

did not prevent her from accomplishing those activities. As

the Supreme Court has noted, however, “[t]he [Americans

with Disabilities} Act addresses substantial limitations on

major life activities, not utter inabilities.” Bragdon v.

Abbott, 524 U.S. 624, 641, 118 S.Ct. 2196, 141 L.Ed.2d 540

* By contrast, the legislative definition of a “mental disability” in the

FEHA does not require that the disability substantially limit a major life

activity, but merely that it “limit” a major life activity. See

Cal.Govt.Code § 12926(1). Because a triable issue of fact exists as to

whether Humphrey is disabled under the ADA, a fortiori an issue of fact

also exists as to whether she is disabled under the FEHA.

* We need not address whether Humphrey is substantially limited in

working. See McAlindin, 192 F.3d at 1233; EEOC Enforcement

Guidance on Psychiatric Disabilities, at 7463 (“The first question is

whether an individual is substantially limited in a major life activity other

than working (e.g. sleeping, concentrating, caring for oneself). Working

should be analyzed only if no other major life activity is substantially

limited by an impairment.”).

13a

(1998). An impairment “substantially limits” one’s ability to

carry out a major life activity if, because of the impairment,

the individual is “{s]ignificantly restricted as to the

condition, manner, or duration under which an individual can

perform a major life activity as compared to the condition,

manner, or duration under which the average person in the

general population can perform that same major life

activity.” 29 C.F.R. § 1630.2(j). An individual who has a

physical or mental impairment that causes him to take

inordinately more time than others to complete a major life

activity is substantially limited as to that activity under the

ADA. There is no dispute on the record before us that

Humphrey falls within that category. Accordingly, in

determining whether Humphrey is disabled for purposes of

the ADA, the question is not whether she is substantially

limited in her ability to care for herself, but whether she had

OCD, and, if so, whether her OCD was the cause of her

limitation.

MHA next argues that Humphrey was not “qualified” for

the medical transcriptionist position within the meaning of

the ADA. A qualified individual is “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.” 42 U.S.C.

§ 12111(8). It is undisputed that Humphrey had the skills,

training, and experience to transcribe medical records. MHA

contends that Humphrey’s inability to show up for work and

to notify her employer when she would be absent renders her

14a

not otherwise qualified under the ADA'® because regular and

predictable attendance is an essential function of the

position.'' However, Humphrey is a “qualified individual”

under the ADA so long as she is able to perform the essential

functions of her job “with or without reasonable

accommodation.” 42 U.S.C. § 12111(8). Either of two

potential reasonable accommodations might have made it

possible for Humphrey to perform the essential functions of

her job: granting her a leave of absence or allowing her to

become a “home- based transcriptionist.”

A leave of absence for medical treatment may be a

reasonable accommodation under the ADA. See 29 C.F.R.

1630 app. § 1630.2(0). We have held that where a leave of

absence would reasonably accommodate an employee’s

disability and permit him, upon his return, to perform the

essential functions of the job, that employee is otherwise

qualified under the ADA. See Nunes v. Wal-Mart Stores,

Inc., 164 F.3d 1243, 1247 (9th Cir.1999).

MHA contends that Humphrey is not otherwise qualified

because the results of the leave of absence were speculative.

However, the ADA does not require an employee to show

'° MHA also argues that Humphrey’s inability to perform her job

duties extended beyond her attendance difficulties. However, the only

negative comments on her evaluations are related to attendance. For

example, she was unable to learn and transcribe pathology because she

was unable to arrive at work consistently before the pathology

department’s four o’clock deadline. Her poor scores for attendance and

attendance- related activities and policies resulted in a “below average”

overall rating.

'' Humphrey concedes that regular and predictable job performance

is an essential function of the MHA medical transcriptionist position.

We note that although excessive or unscheduled absences may prevent an

employee from performing the essential functions of his job and thereby

render him not otherwise qualified for purposes of the ADA, regular and

predictable attendance is not per se an essential function of all jobs.

ii ie ca

15a

that a leave of absence is certain or even likely to be

successful to prove that it is a reasonable accommodation. In

Kimbro v. Atlantic Richfield Co., 889 F.2d 869 (9th Cir.),

cert. denied, 498 U.S. 814, 111 S.Ct. 53, 112 L.Ed.2d 28

(1990), we held that a leave of absence was a reasonable

accommodation for an employee whose cluster migraine

headaches, a condition for which there was no specific

treatment program, caused him sporadically to miss work.’

We noted that

[w]hile it is altogether possible that Kimbro’s migraine

episodes may have recurred upon his return to work

following a leave of absence, such a possibility does not

foreclose a finding of liability for failure to accommodate

Kimbro’s migraines... As long as a_ reasonable

accommodation available to the employer could have

plausibly enabled a handicapped employee to adequately

perform his job, an employer is liable for failing to

attempt that accommodation.

Id. at 879. The statements in Dr. Jacisin’s letter that

Humphrey’s condition was treatable and that “she may have

to take some time off until we can get the symptoms better

under control” are sufficient to satisfy the minimal

requirement that a leave of absence could plausibly have

2 Kimbro involved the Washington state handicap laws, which are

similar to the ADA and the FEHA. See Schmidt v. Safeway, Inc., 864

F.Supp. 991, 996 (D.Or.1994); Prilliman v. United Air Lines, Inc., 53

Cal.App.4th 935, 949 n. 3, 62 Cal.Rptr.2d 142 (Cal.Ct-App.1997); see

also Sanders v. Arneson Prod. Inc., 91 F.3d 1351, 1354 (9th Cir.), cert.

denied, 520 U.S. 1116, 117 S.Ct. 1247, 137 L.Ed.2d 329 (1997) (relying

on Kimbro when construing the ADA).

16a

enabled Humphrey adequately to perform her job." We

discuss in Section C below MHA’s contention that it was not

required to offer Humphrey a leave of absence or other

accommodation unless she specifically requested it.'*

There is another reasonable accommodation that could

also serve to render Humphrey a “qualified individual.”

There is at least a triable issue of fact as to whether

Humphrey would have been able to perform the essential

duties of her job with the accommodation of a work-at-home

position. Working at home is a reasonable accommodation

when the essential functions of the position can be performed

at home and a work-at-home arrangement would not cause

undue hardship for the employer. EEOC Enforcement

Guidance: Reasonable Accommodation and Undue

Hardship Under the Americans with Disabilities Act, FEP

(BNA) 405:7601, at 7626 (March 1, 1999) [hereinafter

EEOC Enforcement Guidance on Reasonable

'? Of course, the requirement to grant a leave where there are

plausible reasons to believe that it would accommodate the employee’s

disability can not be repeatedly invoked, thus permitting an unqualified

employee to avoid termination by requesting a leave of absence each

time he is about to be fired. As we noted in Kimbro, the fact that a prior

leave was granted and was unsuccessful may be a relevant consideration

in determining whether additional leave would be a reasonable

accommodation. Kimbro, 889 F.2d at 879 n. 10.

'* We also note that an employer need not make an accommodation,

including granting a leave of absence, if it poses an undue hardship. 42

U.S.C. § 12112(b)(5)(A). However, MHA makes no such contentic:

here.

17a

Accommodation].'" Humphrey does not dispute that regular

and predictable performance of the job is an essential part of

the transcriptionist position because many of the medical

records must be transcribed within twenty- four hours, and

frequent and unscheduled absences would prevent the

department from meeting its deadlines. However, physical

attendance at the MHA offices is not an essential job duty;

in fact, the record makes it clear that MHA permits some of

its medical transcriptionists to work at home.

MHA denied Humphrey’s application for a work-at-

home position because of her disciplinary record, which

consisted of Level I and Level II] wamings for tardiness and

absenteeism prior to her diagnosis of OCD. It would be

inconsistent with the purposes of the ADA to permit an

employer to deny an otherwise reasonable accommodation

because of past disciplinary action taken due to the disability

sought to be accommodated. Thus, Humphrey’s disciplinary

record does not constitute an appropriate basis for denying

her a work-at-home accommodation.

Although Dr. Jacisin was less optimistic about

Humphrey’s working at home than he was about a leave of

absence, Humphrey has submitted sufficient evidence to

raise an issue of fact as to whether she could perform the job

with the accommodation of a work-at-home position. She

testified that her ailment interfered primarily with her ability

'° Courts have taken differing approaches toward working at home

as an accommodation. Compare Vande Zande v. Wisconsin Dept. of

Admin., 44 F.3d 538, 544-45 (7th Cir.1995) (holding that an employer is

not required to allow disabled workers to work at home except in

extraordinary circumstances), with Langon v. Department of Health and

Human Servs., 959 F.2d 1053, 1060-61 (D.C.Cir.1992) (holding that an

employer must consider requested accommodation of working at home),

cited with approval in Buckingham v. United States, 998 F.2d 735, 740

(9th Cir.1993). We see no reason not to follow the approach taken by the

EEOC in its Enforcement Guidance.

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18a

to leave her house in the morning. Dr. Jacisin stated that

working at home “might accommodate some of her work

issues,” and later testified that he felt working at home would

have been worth trying because “her OCD really didn’t

interfere necessarily with her ability to do the work, that is to

actually do the typing and transcription.” A reasonable jury

could conclude that if Humphrey was relieved of the stress

of having to leave the house, she could perform her

transcriptionist duties and thus was “qualified” under the

ADA.

Accordingly, we hold that MHA is not entitled to

summary judgment on the issue of whether Humphrey is a

“qualified individual with a disability” for purposes of the

ADA.

B. BREAKDOWN OF THE INTERACTIVE PROCESS

The remaining question with respect to the duty to

accommodate is a purely a legal one: was MHA obligated to

suggest a leave of absence or to explore other alternatives in

response to Humphrey’s request for a work-at-home

position, or was it Humphrey’s burden to make an express

request for a leave of absence before she was terminated?

We conclude, as a matter of law, that (assuming Humphrey

was a qualified individual with a disability) MHA had an

affirmative duty under the ADA to explore further methods

of accommodation before terminating Humphrey.

Once an employer becomes aware of the need for

accommodation, that employer has a mandatory obligation

under the ADA to engage in an interactive process with the

employee to identify and implement appropriate reasonable

accommodations. Barnett v. U.S. Air, 228 F.3d 1105, 1114

(9th Cir.2000). “An appropriate reasonable accommodation

must be effective, in enabling the employee to perform the

duties of the position.” Jd. at 1115. The interactive process

requires communication and good-faith exploration of

possible accommodations between employers and individual

a i a a ee

19a

employees, and neither side can delay or obstruct the

process. /d. at 1114-15; Beck v. University of Wis. Bd. of

Regents, 75 F.3d 1130, 1135. (7th Cir.1996) (“A party that

obstructs or delays the interactive process is not acting in

good faith. A party that fails to communicate, by way of

initiation or response, may also be acting in bad faith.”).

Employers, who fail to engage in the interactive process in

good faith, face liability for the remedies imposed by the

statute if a reasonable accommodation would have been

possible. Barnett, 228 F.3d at 1116.

Moreover, we have held that the duty to accommodate

“4s a ‘continuing’ duty that is ‘not exhausted by one effort.””

McAlinuin, 192 F.3d at 1237. The EEOC Enforcement

Guidance notes that “an employer must consider each

request for reasonable accommodation,” and that “{i]f a

reasonable accommodation turns out to be ineffective and

the employee with a disability remains unable to perform an

essential function, the employer must consider whether there

would be an alternative reasonable accommodation that

would not pose an undue hardship.” EEOC Enforcement

Guidance on Reasonable Accommodation, at 7625. Thus,

the employer’s obligation to engage in the interactive

process extends beyond the first attempt at accommodation

and continues when the employee asks for a different

accommodation or where the employer is aware that the

initial accommodation is failing and further accommodation

is needed. This rule fosters the framework of cooperative

problem-solving contemplated by the ADA, by encouraging

employers to seek to find accommodations that really work,

and by avoiding the creation of a perverse incentive for

employees to request the most drastic and burdensome

accommodation possible out of fear that a lesser

accommodation might be ineffective.

When MHA received Dr. Jacisin’s letter diagnosing

Humphrey with OCD, MHA properly initiated the

20a

interactive process by arranging a meeting to discuss

possible accommodations. Dr. Jacisin’s statement “I would

like to see her continue to work, but if it is proving to be a

major personnel problem, she may have to take some time

off until we can get the symptoms better under control”

alerted MHA to the possibility that any initial arrangement

that kept Humphrey on the job might not be effective and

that a leave of absence might ultimately be necessary to

accommodate her disability. In fact, it is MHA’s position,

disputed by Humphrey, that MHA explicitly offered her a

leave at the June 7 meeting, and that it was Humphrey who

decided that flexible scheduling was the better choice. Even

if we assume that Humphrey turned down the leave of

absence in June in favor of a flexible start-time arrangement,

her attempt to perform her job functions by means of a less

drastic accommodation does not forfeit her right to a more

substantial one upon the failure of the initial effort.

By the time of her annual performance review in

September, it was abundantly clear to MHA that the flexible

start time accommodation was not succeeding; Humphrey

had accumulated six unreported absences in each of the

months of August and September, and her evaluation stated

that her attendance record was “unacceptable.” At this point,

MHA had a duty to explore further arrangements to

reasonably accommodate Humphrey’s disability.

Humphrey also realized that the accommodation was not

working, and requested a work at home position. When it

received that request, MHA could have either granted it or

initiated discussions with Humphrey regarding other

2la

alternatives.'° Instead, MHA denied her request without

suggesting any alternative solutions, or exploring with her

the possibility of other accommodations. Rather than fulfill

its obligation to engage in a cooperative dialogue with

Humphrey, Pierson’s e-mail suggested that the matter was

closed: “During our 6/7/95 meeting, you requested to be

accommodated for your disability by having a flexible start

time, stating that you would have no problems staying for a

full shift once you arrived. You were given this flexible start

time accommodation which continues to remain in effect.”

We held in Barnett that an employer fails to engage in the

interactive process as a matter of law where it rejects the

employee’s proposed accommodations by letter and offers

no practical alternatives. See Barnett, 228 F.3d at 1116-17.

Similarly, MHA’s rejection of Humphrey’s work-at-home

request and its failure to explore with Humphrey the

possibility of other accommodations, once it was aware that

the initial arrangement was not effective, constitutes a

violation of its duty regarding the mandatory interactive

process.

Given MHA’s failure to engage in the interactive

process, liability is appropriate if a reasonable

accommodation without undue hardship to the employer

would otherwise have been possible. See id. at 1117. As we

have already discussed, a leave of absence was a reasonable

‘© As we have discussed, working at home is a reasonable

accommodation when the essential functions of the position can be

performed at home and a work-at-home arrangement would not cause ar

undue hardship for the employer. EEOC Enforcement Guidance on

Reasonable Accommodation, at 7626. Although MHA may have

violated the ADA by refusing her request for a work at home

accommodation, we do not reach this issue because on appeal Humphrey

argues only the failure to grant a leave of absence as a violation of the

duty to accommodate.

Toe Ss ee

22a

accommodation for Humphrey’s disability.'’ Ordinarily,

whether an accommodation would pose an undue hardship

on the employer is a factual question. Here, however, MHA

has conceded that granting a leave of absence would not

have posed an undue hardship. MHA had a policy of

granting leaves to disabled employees, and admits that it

would have given Humphrey a leave had she asked for one at

any time before her termination. MHA’s ultimate position,

therefore, is simply that Humphrey is not entitled to a leave

of absence because she failed to ask for one before she was

fired. As we have explained, however, MHA was under a

continuing duty to offer a reasonable accommodation.

Accordingly, we hold as a matter of law (again, assuming

that Humphrey is a qualified individual with a disability) that

MHA violated the ADA’s reasonable accommodation

requirement.

C. REASON FOR TERMINATION

Unlike a simple failure to accommodate claim, an

unlawful discharge claim requires a showing that the

employer terminated the employee because of his disability.

See Cooper v. Neiman Marcus Group, 125 F.3d 786, 790

(1997). Often the two claims, are, from a practical

standpoint, the same. For the consequence of the failure to

accommodate is, as here, frequently an unlawful termination.

In this case, MHA’s stated reason for Humphrey’s

termination was absenteeism and tardiness. For purposes of

"7 See Section ILA supra.

23a

the ADA, with a few exceptions,'® conduct resulting from a

disability is considered to be part of the disability, rather than

a separate basis for termination. See Hartog v. Wasatch

Academy, 129 F.3d 1076, 1086 (10th Cir.1997). The link

between the disability and termination is particularly strong

where it is the employer’s failure to reasonably

accommodate a known disability that leads to discharge for

performance inadequacies resulting from that disability. See

Borkowski v. Valley Central Sch. Dist., 63 F.3d 131, 143 (2d

Cir.1995). In Kimbro, for example, we found that there was

a sufficient causal connection between the employee’s

disability and termination where the employee was

'® The text of the ADA authorizes discharges for misconduct or

inadequate performance that may be caused by a “disability” in only one

category of cases-alcoholism and illegal drug use: “[An employer] may

hold an employee who engages in the illegal use of drugs or who is an

alcoholic to the same qualification standards for employment or job

performance and behavior that such entity holds other employees, even if

any unsatisfactory performance or behavior is related to the drug use or

alcoholism of such employee.” 42 U.S.C. § 12114(c)(4). In line with

this provision, we have applied a distinction between disability-caused

conduct and disability itself as a cause for termination only in cases

involving illegal drug use or alcoholism. See Newland v. Dalton, 81 F.3d

904, 906 (9th Cir.1996) (holding that an employer may fire an employee

who went on a “drunken rampage” and attempted to fire an assault rifle

at individuals in a bar); Collings v. Longview Fibre Co., 63 F.3d 828, 832

(9th Cir.), cert. denied, 516 U.S. 1048, 116 S.Ct. 711, 133 L.Ed.2d 666

(1996) (employees discharged for drug-related misconduct at the

workplace); see also Hartog, 129 F.3d at 1085-88 (reviewing cases in all -

circuits and finding that “the disability vs. disability-caused conduct

dichotomy seems to be unique to alcoholism and drugs.”). In Newland,

however, we suggested that an additional exception might apply in the

case of “egregious and criminal conduct” regardless of whether the

disability is alcohol- or drug-related. See Newland, 81 F.3d at 906

(“Attempting to fire a weapon at individuals is the kind of egregious and

criminal conduct which employees are responsible for regardless of any

disability.”). Any such exception would not be applicable to

Humphrey’s absences or tardiness.

Tce ee ne eee ner

24a

discharged for excessive absenteeism caused by migraine-

related absences. See Kimbro, 889 F.2d at 875. Similarly,

Humphrey has presented sufficient evidence to create a

triable issue of fact as to whether her attendance problems

were caused by OCD. In sum, a jury could reasonably find

the requisite causal link between a disability of OCD and

Humphrey’s absenteeism and conclude that MHA fired

Humphrey because of her disability.

Ii. CONCLUSION

For the foregoing reasons, the district court’s grant of

summary judgment to MHA on Humphrey’s ADA and

FEHA claims is hereby REVERSED and the case is

REMANDED for proceedings consistent with this opinion.

25a

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

No. CV-F-96-6025 REC DLB

CAROLYN HUMPHREY,

Plaintiff,

Vv.

MEMORIAL HOSPITALS ASSOCIATION

Defendant

ORDER GRANTING DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT

(Terminates Documents 28, 29, 53, and 61)

1. Jennie

On November 24, 1997, this court heard Defendant

Memorial Hospitals Association’s (MHA) motion for

summary judgment on Plaintiff's claims under the

Americans with Disabilities Act (ADA), the California Fair

Employment and Housing Act (FEHA), the Family and

Medical Leave Act (FMLA), the California Family Rights

Act (CFRA), and Plaintiff's claim for punitive damages.

Because this court finds that MHA satisfied its duty to

reasonably accommodate Humphrey’s disability, this court

grants Defendant’s motion in its entirety.

Il. Facts

Plaintiff Carolyn Humphrey worked at MHA as a

medical transcriptionist from July, 1986, to her termination

on October 10, 1995.

26a

During 1987-1990, Plaintiff began to have problems with

chronic tardiness and absenteeism. It is important that

medical transcriptionists have few or no problems with

tardiness or absenteeism, because their work is time-

sensitive; timely completion of medical-transcription

assignments is necessary for doctors to provide patients with

quality care. Plaintiff was counseled in July of 1990 and

1991 for attendance and punctuality problems, but the

problems continued. Often, when she failed to come in to

work, she also failed to notify her supervisors that she would

be absent. At all relevant times, Plaintiff knew that she had

to call in if she was not going to come to work. Her failure

to do so created scheduling problems at the MHA

transcription department. Because of Plaintiff's repeated

failure to notify MHA of her absences, the transcription

department repeatedly failed to meet its deadlines and

incurred additional overtime expense. Plaintiff received two

official warnings about her behavior — a “Level I’ warning in

June of 1994, and a “Level II’ warning in December of

1994. After the “Level DT’ warning, Plaintiff took

advantage of the Employee Assistance Program (EAP)

counseling that MHA offered. The counseling, however, did

not help Plaintiff to change her behavior.

Plaintiff first began to believe that something was wrong

with her after she watched a 1995 episode of the Oprah

Winfrey show dealing with Attention Deficit Disorder

(ADD). On May 3, 1995, Plaintiff met with MHA’s

Employee Health Nurse Practitioner, Elizabeth Pierson, to

discuss Plaintiff's concern that her tardiness and absenteeism

might be related to a medical condition such as ADD.

Plaintiff expressed interest in a diagnostic psychiatric

evaluation. The manager of the EAP set up an evaluation

appointment with john J. Jacisin, M.D., a psychiatrist who

practices at The Psychiatric Medical Group (PMG) in

Modesto, California. Dr. Jacisin examined Plaintiff on May ~

27a

12, 1995, and diagnosed her as suffering from Obsessive

Compulsive Disorder (OCD).

OCD is a type of psychological disorder in which an

individual experiences obsessions or compulsions or both.

See DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL

DISORDERS 417 (American Psychiatric Association 4th ed.

1994). Obsessions are recurring or persistent thoughts,

images, or impulses that, rather than being voluntarily

produced, seem to invade a person’s consciousness despite

his attempts to ignore, suppress, or control them. See id. at

418. Compulsions are urges or impulses’ to commit

repetitive acts that are apparently meaningless, stereotyped,

or ritualistic. See id.

Plaintiff has engaged in a variety of ritualistic behaviors.

It is undisputed that Plaintiffs OCD caused Plaintiff's

problems with lateness and absenteeism, and also caused her

to repeatedly fail to call to tell the medical transcription

department that she would be absent from or late to work.

Defendant became aware of Plaintiff's OCD after Dr. Jacisin

sent a letter on May 18, 1995, to Pierson discussing his

diagnosis. The letter provides in relevant part:

I believe we can treat this. Although, the treatment

might take awhile [sic]. I do believe that she would

qualify under the Americans with Disability [sic] Act

although, I would like to see her continue to work, but

if it is proving to be a major personnel problem, she

may have to take some time off until we can get the

symptoms under control.

On June 7, 1995, Plaintiff met with Pierson and Carol

Evans-Bowlsby, Defendant’s Medical Transcriptions

Supervisor, to review Dr. Jacisin’s letter. Plaintiff

understood during this meeting that she had the option of

taking some time off, but indicated that she did not wish to

take time off. Pierson told Plaintiff at this meeting that

Defendant could accommodate Plaintiffs disability. The

28a

three discussed varibus accommodations, but settled on a

flexible-start-time schedule. The schedule allowed Plaintiff

to begin work anytime within a 24-hour period on days on

which Plaintiff was scheduled to begin work. Defendant

continued to expect that if Plaintiff was unable to arrive for

work at all, she would contact someone in her supervisory

chain within the medical-transcription department. Despite

the flexible-start-time arrangement, Plaintiff continued to fail

to report for work and continued to fail to inform her

supervisor that she would be unable to report for work. Each

of Plaintiff's unscheduled absences caused a complete 24-

hour period of productivity to be lost and caused deadlines to

be missed because the medical-transcription department did

not know until the 24-hour period expired that Plaintiff

definitely would not report that day for work. Plaintiff never

contacted Pierson or anyone else at MHA to request a leave

of absence or to seek any additional accommodation of her

OCD until Plaintiff sent an electronic mail message, dated

September 18, 1995, to Pierson. In that message, Plaintiff

stated that she would be able to work more hours and be

more productive if she were allowed to work at home. MHA

denied her request, because under its “at-home” policy,

employees who have been subject to discipline within the

previous 12 months are imeligible for “at home”

transcriptionist positions. Plaintiff had apparently discussed

the possibility of at-home work with Dr. Jacisin on one

occasion. Dr. Jacisin wrote to Plaintiff's then-attorney,

Solange Altman:

In respect to the issue about working at home, I

expressed to you that this would probably only

support her obsessive compulsive symptoms, and

would be antitherapeutic. It might accommodate

some of her work issues, but I would not say that she

would just continue with her ritualistic behavior and

never accomplish what she was supposed to

accomplish at home, either.

29a

Dr. Jacisin later testified in his deposition that he was

reconsidering his earlier feelings about at-home work,

because he felt it was necessary for Plaintiff to earn income

and increase her confidence.

Plaintiff received a performance review on September

26, 1995. At that review, Plaintiff was told that she had been

absent nine times within the previous two months without

calling in. Her supervisor, Julie Vieira, told her that this was

“unacceptable.” Following this performance evaluation, she

had two more occurrences of “no-shows.” Plaintiff was

terminated on October 10, 1995, based on her history of

tardiness and absenteeism, her continued failure to

communicate with anyone at MHA regarding her inability to

report for work, and the disruption to MHA’s operations

caused by Plaintiff's actions.

Several minutes after she was terminated, Plaintiff asked

Pierson for a medical leave of absence. Pierson refused,

saying, according to Plaintiff, that Plaintiff had had her “one

chance” at accommodation. But, MHA admits that if

Plaintiff had requested a leave of absence at any time before

her termination, MHA would have granted her request.

MHA has a policy of giving unlimited medical leaves of

absence for occupationally related disabilities and six-month

leaves for non-occupational disabilities. MHA in the past

has given medical leaves to employees of up to two years

duration.

Plaintiff never requested leave under the Family Medical

Leave Act or the California Family Rights Act.

Plaintiff's OCD has never caused her to be admitted to

any psychological facility, or to be hospitalized.

30a

I. Analysis

A. Summary-Judgment Standard

Initially, it is the moving party’s burden to establish that

there is “no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(c); see British Airways Board v. Boeing

Co., 585 F.2d 946, 950-951 (9th Cir. 1978). Where the

moving party does not have the burden of proof on an issue

at trial, it may meet that burden by showing that there is an

absence of evidence to support the non-moving party’s case.

See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

Once the moving party meets its initial burden, a non-

moving party must go beyond the pleadings and by its own

affidavits, depositions, answers to interrogatories, and

admissions on file, come forth with specific facts to show

that a genuine issue of material fact exists and that a

reasonable jury could return a verdict for the non-moving

party. See Reynolds v. County of San Diego, 84 F.3d 1162,

1166 (9th Cir. 1996), overruled on other grounds by Acri v.

Varian Assoc., Inc., 114 F.3d 999 (9th Cir. 1997) (en banc).

In considering a motion for summary judgment, the court

must examine all of the evidence in the light most favorable

to the non-moving party. See id. The court must leave

credibility determinations, the weighing of evidence, and the

drawing of legitimate inferences from the facts to the jury.

See id.

3la

B. ADA/FEHA Claims!

In order to prevail on an employment-discrimination

claim under the ADA, Plaintiff must establish: (1) that she is

a disabled person within the meaning of the ADA; (2) that

she is qualified, that is, with or without reasonable

accommodation (which she must describe), she is able to

perform the essential functions of the job; and (3) that MHA

terminated her because of her disability. See Kennedy v.

Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996).

Although Defendant made many arguments challenging

Plaintiff's ability to satisfy each element of the Kennedy test,

the court feels that the matter may be resolved with a

discussion of whether Defendant “reasonably

accommodated” Plaintiff as a matter of law. The court finds

that Defendant did so, and grants summary judgment on that

ground.

Plaintiff's argument on the subject is as follows.

Defendant failed to accommodate her disability by failing to

offer her a medical leave of absence when it became clear

that the flexible-start-time schedule was not working, and by

failing to allow her to work at home.

The issue of “reasonable accommodation” in this case

can be restated as two issues: (1) whether a prolonged

medical leave of absence or permission to work at home are

appropriate “reasonable accommodations” for an illness

which causes an ADA plaintiff to sporadically miss work;

and (2) if so, whether Plaintiff introduced sufficient evidence

"Because the FEHA provisions relating to disability

discrimination are based on the ADA and other federal law, decisions

interpreting federal anti-discrimination laws are relevant in interpreting

the FEHA’s similar provisions. See Brundage v. Hahn, 57 Cal. App. 4th

228, 235 (1997). It is therefore p.oper to analyze Plaintiff's state and

federal disability claims together, relying on federal authority in the

absence of contrary controlling state law. See id.

ee eR ES care Geers: tts aioe

32a

to create a genuine dispute of material fact as to whether

Defendant, by not giving Plaintiff a leave of absence before

termination and by not allowing her to work at home, did not

sufficiently engage in the interactive process that the ADA

contemplates. The court now turns to these issues.

The Ninth Circuit’s decision in Kimbro_ v. Atlantic

Richfield Co. (ARCO), 889 F.2d 869 (9th Cir. 1989), quite

clearly provides that a prolonged leave of absence is an

appropriate, reasonable accommodation for an illness which

causes a plaintiff to sporadically miss work. In Kimbro, the

plaintiff was a machinist at an oil refinery who suffered from

“cluster migraine,” a condition characterized by sporadic and

debilitating episodes of migraine headaches. In 1981, the

condition caused plaintiff to be tardy a number of times and

to incur several absences. ARCO discharged him for

excessive absenteeism. Plaintiff sued under the Washington

State handicap laws’. Plaintiff argued that ARCO could

have reasonably accommodated him by, among other things,

granting him a leave of absence. The Ninth Circuit held that

ARCO should have offered plaintiff a leave of absence,

remarking:

Here, [plaintiff's] cluster migraine condition during

the relevant period was characterized by acute

periods of migraines lasting no longer than a few

months, followed by long periods of relative

remission in which [plaintiff] would only experience

occasional migraines. Thus, it was clearly plausible

that a leave of absence in 1981 would have provided

[plaintiff] with an orportunity to endure the 1981

acute episode and then return to work unimpaired for

2 Washington State handicap laws are similar to the ADA and the

FEHA. See Schmidt v. Safeway, Inc., 864 F. Supp. 991, 996 (D. Or.

1994); Prilliman v. United Air Lines, Inc., 53 Cal. App. 4th 935, 949 n.3

(1997).

33a

the foreseeable future. Moreover, at the time of his

discharge, it was also plausible that a prolonged

leave from work would have given [plaintiff] and his

physicians an opportunity to design an effective

treatment program. While it is altogether possible

that [plaintiff's] migraine episodes may have

recurred upon his return to work following a leave of

absence, such a possibility does not foreclose a

finding of liability for failure to accommodate

Kimbro’s migraines in 1981. As long as a reasonable

accommodation available to the employer could have

plausibly enabled a handicapped employee to

adequately perform his job, an employer is liable for

failing to attempt that accommodation. Accordingly,

ARCO’s failure to offer a leave of absence to

[plaintiff] constitutes a violation of Washington’s

handicap discrimination law.

Id. at 878-879.

Defendant also argues that an indefinite leave of absence

is unreasonable as a matter of law, citing the following

language in Myers v. Hose, 50 F.3d 278 (4th Cir. 1995):

Nothing in the text of the reasonable accommodation

provision requires an employer to wait an indefinite

period fer an accommodation to achieve its intended

effect. Rather, reasonable accommodation is by its

terms most logically construed as that which

presently, or in the immediate future, enables the

employee to perform the essential functions of the

job in question.

Id. at 283. While it is true that an indefinite leave of absence

in this case would likely be unreasonable as a matter of law,

see Fuller v. Frank, 916 F.2d 558, 562 (9th Cir. 1990)

(reasonable accommodation does not include duty to await

uncertain results of alcoholic employee’s treatment

program), it is not true that all leaves of absence are

34a

unreasonable. See Kimbro, supra. Defendant cannot prevail

on this issue by casting it in absolute terms. Nothing

prevented Defendant from granting Plaintiff a leave of

absence with a specific time period. Indeed, Kimbro itself

recognizes that if a leave of absence is offered and is

unsuccessful, this will likely end an employer’s duty to

further Ramee a plaintiff. See Kimbro, 889 F.2d at

879 n.1

Courts are split on whether “at-home” work is an

appropriate reasonable accommodation for a disability that

causes excessive absenteeism. The Seventh Circuit and the

Fourth Circuit hold that an employer is generally not

required to accommodate a disability by allowing the

disabled worker to work, by herself, without wahyew at

home. See Vande Zande v. State of Wis. Dept. of Admin.,

44 F.3d 538, 544-545 (7th Cir. 1995); Tyndall v. Nat’]

Education Centers, Inc., 31 F.3d 209, 213-214 (4th Cir.

1994). The District of Columbia Circuit disagrees. See

Langon v. Dept. of Health & Human Services, 959 F.2d

1053, 1060-1061 (D.C. Cir. 1992); see also Norris v. Allied-

Sysco Food Services, Inc., 948 F. Supp. 1418, 1431-1432

(N.D. Cal. 1996) (at-home work could be reasonable

accommodation in some circumstances).

This court has considered the issue, and holds that at-

home work could be a reasonable accommodation in certain

limited circumstances, but not in this case. Plaintiff's job is

certainly capable of being performed at home, as evidenced

by the fact that MHA had several at-home positions for

medical transcriptionists. However, this court notes the

> Under the ADA, a defendant does not have to provide an

accommodation if it would result in an “undue hardship” to the

defendant. See 42 U.S.C. § 12112(b)(5)(A). Defendant has not argued

that giving Plaintiff a leave of absence would impose an “undue

hardship.”

35a

time-sensitive nature of Plaintiff's work, and Plaintiff's

difficulty in completing it, even with a 24-hour flexible start

time, and finds that it cannot expect MHA in this case to

allow Plaintiff to work at-home without some compelling

evidence that such an accommodation would enable her to

timely complete her work. The evidence before the court

demonstrates that her psychiatrist believed that at-home

work would be “anti-therapeutic,” and would probably only

“support her obsessive-compulsive” symptoms. While it is

true that Dr. Jacisin distanced himself somewhat from this

initial conclusion in later deposition testimony, a review of

the testimony demonstrates that at the time, he believed only

that at-home work would be worth trying, as a last resort.

This is not the compelling evidence that the court would

need to hold that at-home work in this case was a reasonable

accommodation that MHA was required to try.

The second issue is whether Defendant sufficiently

engaged in the contemplated interactive process with regard

to the medical leave of absence. When deciding whether an

employer has reasonably accommodated an employee, courts

note that the ADA contemplates an interactive process

between employer and employee where both parties bear

responsibility for determining what accommodation is

necessary. See 29 C-F.R. § 1630.2(0)(3); Bultemeyer v. Fort

Wayne Community Schools, 100 F.3d 1281, 1285 (7th Cir.

1996). Courts look for signs of a failure to participate in

good faith, or failure by one of the parties to help the other

party determine what specific accommodations are

necessary. See Bultemeyer, 100 F.3d at 1285. A party that

fails to communicate, by way of initiation or response, may

also be acting in bad faith. See id. In essence, courts

attempt to isolate the cause of the breakdown, and then

assign responsibility. See id.

In a case involving an employee with mental illness, the

communication process becomes more difficult. See id. It is

36a

crucial that the employer be aware of the difficulties, and

help the other party determine what specific

accommodations are necessary. See id.

Some cases appear to put a greater burden on the

employer than the employee, if not to suggest that an

accommodation is necessary, then to investigate the

employee’s condition and to determine what accommodation

might be most appropriate for that employee. To properly

demonstrate this proposition, the court explores several

relevant cases.

In Bultemeyer, supra, a school janitor with bipolar

disorder and paranoid schizophrenia went on a series of

disability leaves and then told his supervisor that he was

ready to return to work. His supervisor told him that he

would have to take a physical, and work at one of the largest

high schools in the system. The janitor did not think himself

equal to the task, and so did not take the physical and did not

report for work when he was supposed to. His psychiatrist

wrote a letter to his supervisor, stating that it would be in the

janitor’s best interest if he worked at a “less stressful

school.” The irial court granted summary judgment to the

school district on the janitor’s ADA claims. The Seventh

Circuit reversed. It found that the school district should have

discussed the letter with the janitor and his psychiatrist to try

to discover why the position was more stressful, and to sit

down with the janitor to discuss what sort of accommodation

he might need. See Bultemeyer, 100 F.3d at 1284-1286; see

also Mantolete v. Bolger, 767 F.2d 1416, 1423 (9th Cir.

1985) (“Thus an employer has a duty under the Act to gather

sufficient information from the applicant and from qualified

experts as needed to determine what accommodations are

necessary . . .”).

Also demonstrating this proposition is Prilliman v.

United Air Lines, Inc., 53 Cal. App. 4th 935 (1997). In

Prilliman, United Air Lines, Inc. placed pilot Prilliman on

37a

permanent paid disability leave. Prilliman brought an action

under the FEHA. United argued that the act of putting

Prilliman on leave was itself a reasonable accommodation,

and thereafter the burden was on Prilliman to identify a

different accommodation. The court rejected this argument,

stating:

We also find without merit respondents’ suggestion

that the disabled employee must first come forward

and request a specific accommodation before the

employer has a duty to investigate such

accommodation. In other words, respondents

maintain that they reasonably accommodated

Prilliman by offering him insured disability leave,

and they had no duty to investigate other possible

accommodations, such as alternative job positions

with United, because Prilliman did not request an

alternative position.

Id. at 954.

Of course, as the Defendant correctly points out, the

burden does not rest solely on the employer; in some cases

the employee may be responsible for a communication

breakdown. This court reviewed a substantial number of

“reasonable accommodation” cases, and concludes from

those cases that a court may properly grant summary

judgment in favor of an ADA defendant where the defendant

makes a serious offer to accommodate a plaintiff's disability,

and plaintiff rejects the offer.

For example, in Hankins v. The Gap, Inc., 84 F.3d 797

(6th Cir. 1996), the Sixth Circuit upheld the trial court’s

grant of summary judgment in favor of an employer, because

the employee knew of a company leave policy, but failed to

request it. The court made the following observation:

While it is true that an employer should normally

advise an employee of available accommodations

2 | cee hal cat nal ae a

teers

38a

once the employee informs the employer that an

accommodation is needed, it is equally true that an

employer has no duty to reiterate self-evident options

to an employee when she is clearly aware of them.

In this case . . . there is certainly no dispute over

whether she knew about accommodations that

already existed. She admits she knew about the

availability of paid and unpaid medical leave... .

Given the apparentness of __ available

accommodations, plaintiffs contention that she

needed to be told explicitly about them is singularly

unconvincing. In summary, we hold that plaintiff's

refusal to accept available reasonable

accommodations precludes her from arguing that

other accommodations should also have been

provided.

Id. at 801-802.

Similarly, in DeBord v. Board of Education, 126 F.3d

1102 (8th Cir. 1997), the Eighth Circuit upheld a trial court’s

grant of summary judgment in favor of a school. In DeBord,

the school refused to administer an eight-year-old student’s

Attention Deficit Hyperactivity Disorder prescription,

because to do so would conflict with the school’s policy not

to administer prescription drugs to students in excess of the

recommended daily dosage. The school offered as an

accommodation to the parties either an alteration of the

student’s class schedule or permission for the parents or

someone designated by the parents to administer the drug at

school. The parents rejected these accommodations and

sued. The Eighth Circuit held that the school had provided

reasonable accommodations as a matter of law. See id. at

1106.

Finally, in Schmidt v. Methodist Hosp., 89 F.3d 342 (7th

Cir. 1996), the Seventh Circuit upheld a trial court’s grant of

summary judgment in favor of defendant employer-hospital.

‘oad SR

39a

In Schmidt, a nurse with a severe hearing disability claimed

that a hospital had failed to reasonably accommodate him by

refusing to transfer him to a different nursing unit, where he

would not have to distinguish between so many different

alarms. The hospital gave him two options: he could

receive extra training where he was or he could resign and

apply to a different position. According to the Seventh

Circuit, this was enough to satisfy the employer’s

“reasonable accommodation” duty. See id. at 344-345.

Given the above principles, this court now sets forth that

part of the factual record that deals with the “interactive

process” between Plaintiff and Defendant and examines it to

determine whether Plaintiff has introduced evidence

sufficient to support a finding that Defendant did not

appropriately engage in the process. Upon examination, the

court finds that Defendant participated in the interactive

process, and that the blame of the breakdown in

communications is more properly placed on Plaintiff.

The process began after Dr. Jacisin had diagnosed

Plaintiff with OCD. On May 26, 1995, Elizabeth Pierson,

Defendant’s Employee Health Nurse Practitioner, received

Dr. Jacisin’s letter containing his diagnosis of Plaintiff. The

letter stated in relevant part:

I believe we can treat this. Although, the treatment

may take awhile [sic]. I do believe that she would

qualify under the Americans with Disability [sic] Act

although, I would like to see her continue to work,

but if it is proving to be a major personnel problem,

she may have to take some time off until we can get

the symptoms under control.

The parties vigorously argue whether this letter can be

construed “as a recommendation for a leave of absence.

Dr. Jacisin testified in his deposition that he considered it to

be so:

= fates

40a

Q: So you did have an opinion in 1985 -- May 18th,

1985 about what -- withdrawn. You told memorial in

May of 1985 that this -- Mrs. Humphrey might have

to take time off from work at some point, correct?

MR. CURRAN [Defendant’s counsel]: Objection,

leading, and you’re misspeaking. You’re saying 85.

MR. BUDIN [Plaintiff's counsel]: 1995, okay. Ill

rephrase the question. On May 18th, 1995 you told

Memorial through Ms. Pierson that Mrs. Humphrey

might have to take time off from work, right?

MR. CURRAN: Objection, leading.

THE WITNESS: If they could not accommodate her

lateness.

MR. BUDIN: And by time off from work, you were

thinking of a leave of absence, correct?

MR. CURRAN: Same objection.

THE WITNESS: Yes.

MR. BUDIN: I’m only getting back to cause he

asked you some very broad questions about whether

you had any opinions about accommodation in 1995

when you first saw her. And you said no, but this

letter seems to indicate that you were telling

Memorial of at least two possibilities, one either

accommodate her lateness or two, give her time off

from work to get her symptoms under control,

correct?

A: Yes.

MR. CURRAN: Objection, leading and the

document speaks for itself. . . .

Deposition of Dr. Jacisin at 96:9 - 97:13.

dh a aed a

4la

On June 7, 1995, Pierson and Carol Evans-Bowlsby, the

Medical Transcriptions supervisor, met with Plaintiff to go

over what Dr. Jacisin had said in the letter. According to

Defendant, Plaintiff stated at that meeting that she did not

want a leave of absence, and that she preferred to continue

working. See Declaration of Elizabeth Pierson at { 10.

Plaintiff's account of the meeting is as follows:

Q: ... Let me ask you to, let me ask you about the

June 7, 1995 meeting with Evans and Pierson. This ~

was after your examination by Dr. Jacisin. Exhibit

12 on page 6 indicates that both you and Evans agree

that you didn’t think you needed a leave of absence.

A: I don’t remember being asked if I thought I

needed one. They asked if I would like to keep

working. And I said yes. I remember that.

Q: Was the issue of a leave of absence raised in any

way during the June 7, 1995 meeting?

A: I guess they asked if I wanted to keep working.

I guess maybe it was then. And I said, yes, I wanted

to keep working if possible.

Q: Did anyone use the actual phrase “leave of

absence”?

A: Idon’t remember. I don’t feel like I was offered

a leave of absence.

Q: Well, you were asked whether you wanted to

keep working, right?

A: IfI felt, yeah.

Q: Did you understand from that question that you

had the option of saying no and taking some time

off?

A: I guess. I don’t know. I don’t remember.

I don’t remember them coming right out and saying

42a

do you feel like you need a leave of absence or do

you want to keep working. I didn’t, they didn’t tell

me it was possible. I mean, they didn’t out and out

offer it to me and I did want to keep working and

I felt that I could.

Q: ... During that meeting you were asked if you

wanted to keep working, right?

A: I think so, yes.

Q: Were you under the impression during that

meeting that if you had said you did not want to keep

working you’d get fired or suffer some other adverse

consequence?

A: No.

Q: So you understood that you had the option of

not working, did you not?

A: I guess so. But I didn’t feel like I needed it then,

SO oe

Deposition of Carolyn Humphrey at 271:9 - 272:20. The

court believes that Plaintiff can raise no genuine issue of

material fact as to whether Defendant offered Plaintiff a

leave of absence after she was diagnosed with OCD.

Plaintiff's own deposition testimony makes it clear that

Defendant did.

Also at this June 7, 1995 meeting, Pierson informed

Plaintiff that she could have an accommodation that would

enable her to keep working. Pierson discussed the following

with Plaintiff: (1) that Plaintiff's request for accommodation

would be evaluated to determine whether or not MHA could

reasonably provide it; (2) whether or not a family member or

friend could drive Plaintiff to the job site and thereby assist

her with reporting timely to work; or (3) whether she would

prefer a flexible start time, i.e., allowing Plaintiff to begin

work anytime within a 24-hour period on days on which

43a

Plaintiff was scheduled to begin work. Plaintiff responded

that the flexible start-time accommodation would be good

for her, and later submitted her request in writing.

Defendant agreed to the accommodation‘.

Despite the flexible-start-time arrangement, Plaintiff

continued to fail to report for work or to call in to inform her

supervisor that she would be unable to report for work.

Defendant asserts that on August 30, 1995, Julie Vieira,

Manager of the Medical Records and Transcription

Department at MHA, spoke with Plaintiff about her

continuing problems. According to Defendant, Plaintiff did

not request a leave of absence, or any other accommodation

at that time.

In any case, neither Plaintiff nor Defendant brought up

the idea of a leave of absence or any other accommodation

until September 18, 1995°, when Plaintiff sent an e-mail to

Pierson requesting that she be allowed to work at home.

Pierson discussed Plaintiff's idea with Vieira, and responded

with the following e-mail:

CAROLYN —- I met with Diane Michaud,

Employment Specialist Human Resources, and Julie

Vieira, your manager, to discuss [your “at-home”

‘ “Plaintiff claims that Pierson knew that a flexible starting time

would not be successful because she wrote to Dr. Jacisin on May 11,

1995, that a flexible starting time had already been tried and had failed.

This is an accurate, but somewhat misleading statement. In her letter,

Pierson states that Plaintiff had not been able to maintain a flexible start

time which allowed her to come in up to four hours late.

> Plaintiff has submitted a declaration in which she states that she

did not request a leave of absence at any time because she believed that

Defendant already had Dr. Jacisin’s recommendation that she be given a

leave of absence. Plaintiff allegedly believed that Defendant would offer

her a leave of absence before firing her because Dr. Jacisin told

Defendant to do that.

44a

request]. It is departmental policy that if you are

involved in any disciplinary action you are ineligible

to be a home based transcriptionist as per the AT

HOME AGREEMENT FOR TRANSCRIP-

TIONISTS. Since you are currently involved in the

discipline process, you are ineligible for being based

at home. During our 6/7/95 meeting, you requested

to be accommodated for your disability by having a

flexible start time, stating that you would have no

probiems staying for a full shift once you arrived.

You were given this flexible start time

accommodation which continues to remain in effect.

As for your productivity, your manager indicated that

you consistently meet your hourly productivity

requirements when you are at work. Please contact

me if I can be of further assistance. Liz Pierson

9/21/95.

Vieira allegedly told Pierson that no funding was available

for “at-home” work and that Plaintiff's discipline record

made her ineligible for “at-home” work. Plaintiff asserts that

Pierson told her about the disciplinary reasons for the

refusal, but never said anything about a lack of funding.

According to Plaintiff, Vieira also never mentioned the lack

of funding at Plaintiff's September 26, 1995 performance

evaluation. See Deposition of Carolyn Humphrey at

258:23 - 261:6.

On September 26, 1995, Vieira gave Plaintiff her

performance review, which ‘included a final warning about

Plaintiff's “no-show” days. Defendant asserts that Plaintiff

never discussed her need for an accommodation with Vieira

at that time. Plaintiff disputes this, stating in her deposition

that she brought up the “at-home” position with Vieira, but

got the same explanation as before, that her disciplinary

problems prevented it. Plaintiff also stated in her deposition

45a

that Vieira was “rigid,” “hard to talk to” and that Vieira

treated the at-home work option as a “closed issue.”

Between her September 26, 1995 review and her October

10, 1995 termination, Plaintiff had no conversations with any

manager about her disability or about accommodation.

During this time period, Plaintiff had two more “no-show”

days. Vieira and Diane Michaud, Defendant’s Employee

Relations Specialist, then made the decision to terminate

Plaintiff.

Plaintiff was terminated on October 10, 1995. After

Plaintiff received notice, she went to Pierson and asked for a

medical leave of absence. According to Plaintiff, Pierson

told her that Plaintiff had had her “one chance” at

accommodation. See Deposition of Carolyn Humphrey at

282:11 - 283:3°.

The court notes that whether to grant summary judgment

in this case is a close question, but finds that it must place

the blame for the breakdown in the interactive process with

Plaintiff. The court finds dispositive the facts that Plaintiff

was initially offered a leave of absence and rejected it, and

then failed to request a leave of absence subsequently. This

court therefore holds that it must grant summary judgment in

C. Plaintiff's Punitive-Damages Claim

The court grants summary judgment as to this claim,

because it grants Defendants’ summary-judgment motion on

the underlying ADA violation.

$ Defendant objects to this statement as hearsay. This statement

is not hearsay, but an admission by a party opponent. See Fed. R. Evid.

801(d\(2D).

;

46a

D. Plaintiff's FMLA And CFRA Claims

The FMLA entitles eligible employees to a total of 12

work-weeks of leave during any 12-month period, when the

employee has a “serious health condition that makes the

employee unable to perform the functions of the position” of

the employee. See 29 U.S.C. § 2612(a)(1)(D). A “serious

health condition” is defined to mean “an illness, injury,

impairment, or physical or mental condition that involves

(A) inpatient care in a hospital, hospice, or residential

medical care facility; or (B) continuing treatment by a health

care provider.” 28 U.S.C. § 2611(11).

The CFRA, Cal. Gov’t Code § 12945.2, prohibits an

employer from refusing a request by any eligible employee

to take up to a total of 12 workweeks in any 12-month period

for family or medical leave. The CFRA defines “serious

health condition” in the same way as does the FMLA. See

Cal. Gov. Code § 12945.2(c)(8).

Plaintiff before her termination never requested leave of

any kind. Moreover, Plaintiff never had a “serious health

condition” as defined in either statute. Her OCD never

caused her to be admitted to any psychological facility, or to

be hospitalized. She took no regular health treatment

between when she was diagnosed as suffering from OCD in

May, 1995, and when she was terminated in October, 1995.

Therefore, because Plaintiff has failed to raise a genuine

issue of fact on essential elements of her FMLA and CFRA

claims, this court will grant MHA’s motion for summary

judgment as to those claims.

47a

IV. Conclusion

For the foregoing reasons, IT IS ORDERED that

Defendant’s summary-judgment motion be GRANTED.

Dated: February 9, 1998

ROBERT E. COYLE

UNITED STATES DISTRICT JUDGE

48a

APPENDIX C

STATUTORY PROVISIONS INVOLVED

Pertinent provisions of the ADA are codified at

42 U.S.C. §§ 12111-12112 as follows:

§ 12111. Definitions

As used in this subchapter:

(1) Commission

The term “Commission” means the Equal

Employment Opportunity Commission established by

section 2000e-4 of this title.

(2) Covered entity

The term “covered entity” means an employer,

employment agency, labor organization, or joint labor-

management committee.

(3) Direct threat

The term “direct threat” means a significant risk to

the health or safety of others that cannot be eliminated

by reasonable accommodation.

(4) Employee

The term “employee” means an_ individual

employed by an employer. With respect to

employment in a foreign country, such term includes

an individual who is a citizen of the United States.

(5) Employer

(A) In general

The term “employer” means a person engaged

in an industry affecting commerce who has 15 or

more employees for each working day in each of

20 or more calendar weeks in the current or

(6)

49a

preceding calendar year, and any agent of such

person, except that, for two years following the

effective date of this subchapter, an employer

means a person engaged in an industry affecting

commerce who has 25 or more employees for

each working day in each of 20 or more calendar

weeks in the current or preceding year, and any

agent of such person.

(B) Exceptions

The term “employer” does not include—

(i) the United States, a corporation

wholly owned by the government of the

United States, or an Indian tribe; or

(ii) a bona fide private membership

club (other than a labor organization) that is

exempt from taxation under section 501(c)

of title 26.

Illegal use of drugs

(A) In general

The term “illegal use of drugs” means the use

of drugs, the possession or distribution of which

is unlawful under the Controlled Substances Act

[21 U.S.C. 801 et seq.]. Such term does not

include the use of a drug taken under supervision

by a licensed health care professional, or other

uses authorized by the Controlled Substances Act

or other provisions of Federal law.

(B) Drugs -

The term “drug” means a_ controlled

substance, as defined in schedules I through V of

section 202 of the Controlled Substances Act [21

U.S.C. 812].

a he LM ar le a aa ml

50a

(7) Person, etc.

The term “person”, “labor organization”,

“employment agency”, “commerce”, and “industry

affecting commerce”, shall have the same meaning

given such terms in section 20006 of this title.

(8) Qualified individual with a disability

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. For the purpose of

this subchapter, consideration shall be given to the

employer’s judgment as to what functions of a job are

essential, and if an employer has prepared a written

description before advertising or interviewing

applicants for the job, this description shall be

considered evidence of the essential functions of the

job.

(9) 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

modification of examinations, training materials

or policies, the provision of qualified readers or

interpreters, and other similar accommodations

for individuals with disabilities.

5la

(10) Undue hardship

(A) In general

The term “undue hardship” means an action

requiring significant difficulty or expense, when

considered in light of the factors set forth in

subparagraph (B).

(B) Factors to be considered

In determining whether an accommodation

would impose an undue hardship on a covered

entity, factors to be considered include—

(i) the nature and cost of the

accommodation needed under this chapter;

(ii) the overall financial resources of the

facility or facilities involved in the

provision of the reasonable accom-

modation; the number of persons employed

at such facility; the effect on expenses and

resources, or the impact otherwise of such

accommodation upon the operation of the

facility;

(iii) the overall financial resources of the

covered entity; the overall size of the

business of a covered entity with respect to

the number of its employees; the number,

type, and location of its facilities; and

(iv) the type of operation or operations

of the covered entity, including the

composition, structure, and functions of the

workforce of such entity; the geographic

separateness, administrative, or fiscal

relationship of the facility or facilities in

question to the covered entity.

52a

§ 12112. Discrimination

(a) General rule

No covered entity shall discriminate against a qualified

individual with a disability because of the disability of such

individual in regard to job application procedures, the hiring,

advancement, or discharge of employees, employee

compensation, job training, and other terms, conditions, and

privileges or employment.

(b) Construction

As used in subsection (a) of this section, the term

“discriminate” includes—

(1) limiting, segregating, or classifying a job

applicant or employee in a way that adversely affects

the opportunities or status of such applicant or

employee because of the disabiiity of such applicant or

employee;

(2) participating in a contractual or other

arrangement or relationship that has the effect of

subjecting a covered entity’s qualified applicant or

employee with a disability to the discrimination

prohibited by this subchapter (such relationship

includes a relationship with an employment or referral

agency, labor union, an organization providing fringe

benefits to an employee of the covered entity, or an

organization providing training and apprenticeship

programs),

(3) utilizing standards, criteria, or methods of

(A) that have the effect of discrimination on

the basis of disability; or

53a

(B) that perpetuate the discrimination of

others who are subject to common administrative

control;

(4) excluding or otherwise denying equal jobs or

benefits to a qualified individual because of the known

disability of an individual with whom the qualified

individual is known to have a relationship or

(5A) 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; or

(B) denying employment opportunities to a job

applicant or employee who is an otherwise qualified

individual with a disability, if such denial is based on

the need of such covered entity to make reasonable

accommodation to the physical or mental impairments

of the employee or applicant;

(6) using qualification standards, employment

tests or other selection criteria that screen out or tend

to screen out an individual with a disability or a class

of individuals with disabilities unless the standard, test

or other selection criteria, as used by the covered

entity, is shown to be job-related for the position in

question and is consistent with business necessity, and

(7) failing to select and administer tests

concerning employment in the most effective manner

to ensure that, when such test is administered to a job

applicant or employee who has a disability that

impairs sensory, manual, or speaking skills, such test

results accurately reflect the skills, aptitude, or

54a

whatever other factor of such applicant or employee

that such test purports to measure, rather than

reflecting the impaired sensory, manual, or speaking

skills of such employee or applicant (except where

such skills are the factors that the test purports to

measure).

(1) In general

It shall not be unlawful under this section for a

covered entity to take any action that constitutes

discrimination under this section with respect to an

employee in a workplace in a foreign country if

compliance with this section would cause such covered

entity to violate the law of the foreign country in which

such workplace is located.

(2) Control of corporation

(A) Presumption

If an employer controls a corporation whose place

of incorporation is a foreign country, any practice

that constitutes discrimination under this section and

is engaged in by such corporation shall be presumed

to be engaged in by such employer.

(B) Exception

This section shall not apply with respect to the

foreign operations of an employer that is a foreign

person not controlled by an American employer.

For purposes of this paragraph, the determination

of whether an employer controls a corporation shall

be based on—

(i) the interrelation of operations;

55a

(ii) the common management,

(iii) the centralized control of labor relations;

and

(iv) the common ownership or financial |

control, of the employer and the corporation. :

(d) Medical examinations and inquiries

(1) In general

The prohibition against discrimination as referred to

in subsection (a) of this section shall include medical

examinations and inquiries.

(2) Preemployment

(A) Prohibited examination or inquiry

Except as provided in paragraph (3), a

covered entity shall not conduct a medical

examination or make inquiries of a job applicant

as to whether such applicant is an individual with

a disability or as to the nature or severity of such

disability.

(B) Acceptable inquiry

A covered entity may make preemployment

inquiries into the ability of an applicant to

perform job-related functions.

(3) Employment entrance examination

A covered entity may require a medical examination

after an offer of employment has been made to a job

applicant and prior to the commencement of the ---

employment duties of such applicant, and may

condition an offer of employment on the results of such

examination, if—

(A) all entering employees are subjected to

such an examination regardless of disability;

are

56a

(B) information obtained regarding the

medical condition or history of the applicant is

collected and maintained on separate forms and in

separate medical files and is treated as a

confidential medical record, except that—

(i) supervisors and managers may be

informed regarding necessary restrictions on

the work or duties of the- employee and

necessary accommodations:

(ii) first aid and safety personnel may be

informed, when appropriate, if the disability

might require emergency treatment; and

(iii) government officials investigating

compliance with this Act shall be provided

relevant information on request; and

only in accordance with this title.

(4) Examination and inquiry

(A) Prohibited examination and inquiries

A covered entity shall not require a medical

examination and shall not make inquiries of an

employee as to whether such employee is an

individual with a disability or as to the nature or

severity of the disability, unless such examination or

inquiry is shown to be job-related and consistent with

business necessity.

(B) Acceptable examination and inquiries

A covered entity may conduct voluntary medical

examinations, including voluntary medical histories,

which are part of an employee health program

available to employees at that work site. A covered

574

entity may make inquiries into the ability of an

employee to perform job-related functions.

Information obtained under subparagraph (B)

regarding the medical condition or history of any

employee are subject to the requirement of

subparagraphs (B) and (C) of paragraph (3).

58a

APPENDIX D

RELEVANT PORTIONS OF [29 C.F.R.]}

PART 1630—REGULATIONS TO IMPLEMENT

THE EQUAL EMPLOYMENT PROVISIONS OF

THE AMERICANS WITH DISABILITIES ACT

§ 1630.2 Definitions

(0) Reasonable accommodation.

(3) Yo determine the appropriate reasonable

accommodation it may be necessary for the covered entity to

initiate an informal, interactive process with the qualified

individual with a disability in need of the accommodation.

This process should identify the precise limitations resulting

from the disability and potential reasonable accommodations

that could overcome those limitations.

§ 1630.9 Not making reasonable accommodation.

(d) A qualified individual with a disability is not

required to accept an accommodation, aid, service,

opportunity or benefit which such qualified individual

chooses not to accept. However, if such individual rejects a

reasonable accommodation, aid, service, opportunity or

benefit that is necessary to enable the individual to perform

the essential functions of the position held or desired, and

cannot, as a result of that rejection, perform the essential

functions of the position, the individual will not be

considered a qualified individual with a disability.

59a

APPENDIX TO PART 1630—INTERPRETIVE GUIDANCE ON

TITLE I OF THE AMERICANS WITH DISABILITIES ACT

Section 1630.2(0) Reasonable

Accommodation

Part 1630 lists the examples, specified in title I of the

ADA, of the most common types of accommodation that an

employer or other covered entity may be required to provide.

There are any number of other specific accommodations that

may be apprepriate for particular situations but are not

specifically mentioned in this listing. This listing is not

intended to be exhaustive of accommodation possibilities.

For example, other accommodations could include

permitting the use of accrued paid leave or providing

additional unpaid leave for necessary treatment, making

employer provided transportation accessible, and providing

reserved parking spaces. Providing personal assistants, such

as a page turner for an employee with no hands or a travel

attendant to act as a sighted guide to assist a blind employee

on occasional business trips, may also be a reasonable

accommodation. Senate Report at 31; House Labor Report

at 62; House Judiciary Report at 39.

Section 1630.9 Not Making Reasonable

Accommodation

Process of Determining the Appropriate

Reasonable Accommodation

Once a qualified individual with a disability has

requested provision of a reasonable accommodation, the

employer must make a reasonable effort to determine the

appropriate accommodation. The appropriate reasonable

accommodation is best determined through a flexible,

interactive process that involves both the employer and the

60a

qualified individual with a disability. Although this process

is described below in terms of accommodations that enable

the individual with a disability to perform the essential

functions of the position held or desired, it is equally

applicable to accommodations involving the job application

process, and to accommodations that enable the individual

with a disability to enjoy equal benefits and privileges of

employment. See Senate Report at 34-35; House Labor

Report at 65-67.

When a qualified individual with a disability has

requested a reasonable accommodation to assist in the

performance of a job, the employer, using a problem solving

approach, 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 limitations imposed by the

individual’s disability and how those limitations could be

overcome with a reasonable accommodation;

(3) In_ consultation with the individual to be

accommodated, identify potential accommodations and

assess the effectiveness each would have in enabling the

individual to perform the essential functions of the position;

and

(4) Consider the preference of the individual to be

accommodated and _ select and implement the

accommodation that is most appropriate for both the

employee and the employer.

In many instances, the appropriate reasonable

accommodation may be so obvious to either or both the

employer and the qualified individual with a disability that it

may not be necessary to proceed in this step-by-step fashion.

For example, if an employee who uses a wheelchair requests

that his or her desk be placed on blocks to elevate the

6la

desktop above the arms of the wheelchair and the employer

complies, an appropriate accommodation has been requested,

identified, and provided without either the employee or

employer being aware of having engaged in any sort of

“reasonable accommodation process.”

However, in some instances neither the individual

requesting the accommodatior. nor the employer can readily

identify the appropriate accommodation. For example, the

individual needing the accommodation may not know

enough about the equipment used by the employer or the

exact nature of the work site to suggest an appropriate

accommodation. Likewise, the employer may not know

enough about the individual’s disability or the limitations

that disability would impose on the performance of the job to

suggest an appropriate accommodation. Under such

circumstances, it may be necessary for the employer to

initiate a more defined problem soiving process, such as the

step-by-step process described above, as part of its

reasonable effort to identify the appropriate reasonable

accommodation.

This process requires the individual assessment of both

the particular job at issue, and the specific physical or mental

limitations of the particular individual in need of reasonable

accommodation. With regard to assessment of the job,

‘individual assessment” means analyzing the actual job

duties and determining the true purpose or object of the job.

Such an assessment is necessary to ascertain which job

functions are the essential functions that an accommodation

must enable an individual with a disability to perform.

After assessing the relevant job, the employer, in

consultation with the individual requesting the

accommodation, should make an assessment of the specific

limitations imposed by the disability on the individual’s

performance of the job’s essential functions. This

assessment will make it possible to ascertain the precise

62a

barrier to the employment opportunity which, in turn, will

make it possible to detezimine the accommodation(s) that

could alleviate or remove that barrier.

If consultation with the individual in need of the

accommodation still does not reveal potential appropriate

accommodations, then the employer, as part of this process,

may find that technical assistance is helpful in determining

how to accommodate the particular individual in the specific

situation. Such assistance could be sought from the

Commission, from State or local rehabilitation agencies, or

from disability constituent organizations. It should be noted,

however, that, as provided in § 1630.9(c) of this part, the

failure to obtain or receive technical assistance from the

Federal agencies that administer the ADA wili not excuse the

employer from its reasonable accommodation obligation.

Once potential accommodations have been identified, the

employer should assess the effectiveness of each potential

accommodation in assisting the individual in need of the

accommodaticn in the performance of the essential functions

of the position. If more than one of these accommodations

will enable the individual to perform the essential functions

or if the individual would prefer to provide his or her own

accommodation, the preference of the individual with a

disability should be given primary consideration. However,

the employer providing the accommodation has the ultimate

discretion to choose between effective accommodations, and

may choose the less expensive accommodation or the

accommodation that is easier for it to provide. It should also

be noted that the individual’s willingness to provide his or

her own accommodation does not relieve the employer of the

duty to provide the accommodation should the individual for

any reason be unable or unwilling to continue to provide the

accommodation.

63a

APPENDIX E

EEOC: Guidance on Reasonable Accommodation

Under the ADA

OTHER REASONABLE

ACCOMMODATION ISSUES'

31.If an employer has provided one reasonable

accommodation, does it have to provide additional

reasonable accommodations requested by an individual

with a disability?

The duty to provide reasonable accommodation is an

ongoing one” Certain individuals require only one

reasonable accommodation, while others may need more

than one. Still others may need one reasonable

accommodation for a period of time, and then at a later date,

require another type of reasonable accommodation. If an

individual requests multiple reasonable accommodations,

s/he is entitled only to those accommodations that are

necessitated by a disability and that will provide an equal

employment opportunity.

An employer must consider each request for reasonable

accommodation and determine: (1) whether the

accommodation is needed, (2)if needed, whether the

accommodation would be effective, and (3) if effective,

whether providing the reasonable accommodation would

impose an undue hardship. If a reasonable accommodation

turns out to be ineffective and the employee with a disability

remains unable to perform an essential function, the

' The discussions and examples in this section assume that there is

only one effective accommodation and that the reasonable

accommodation will not cause an undue hardship.

2 See Ralph v. Lucent Technologies, Inc., 135 F.3d 166, 171, 7 AD

Cas. (BNA) 1345, 1349 (1st Cir. 1998).

64a

employer must consider whether there would be an

alternative reasonable accommodation that would not pose

an undue hardship. If there is no alternative accommodation,

then the employer must attempt to reassign the employee to a

vacant position for which s/he is qualified, unless to do so

would cause an undue hardship.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.