Remember when President George W. Bush, when discussing nuclear weapons, pronounced the word “nuclear” as “nucular”? It is probably no surprise that reading ability is important when it comes to those who work with nuclear materials. It is also unsurprising that a reasonable accommodation may be appropriate for someone who works with nuclear materials, but who also has a disability. In Sanchez v. U.S. Dep’t of Energy, No. 16-2056 (10th Cir. Sept. 11, 2017), the Tenth Circuit Court of Appeals concluded that jurisdictional issues did not preclude judicial review of a terminated federal employee’s failure to accommodate claim under the Rehabilitation Act.
The decision provides yet another reminder that employers are obligated to participate in the interactive process and legitimately engage with a worker who seeks a reasonable accommodation for a disability. An employee who asks for reassignment as a reasonable accommodation (on nearly 30 occasions in this case) should likely not be rejected at every turn.
Sigiefredo Sanchez worked as an Emergency Operations Specialist for the National Nuclear Security Administration, which is part of the Department of Energy. The NNSA ensures the security of nuclear weapons and materials. Sanchez’s job required that he answer 911 calls and relay GPS locations, mile markers, and other directions to and from nuclear convoy commanders. Sanchez was required to have a Human Reliability Program (HRP) certification, which ensures that individuals working with nuclear materials are reliable.
While reading a daily report to his coworkers, Sanchez skipped words, mixed up words, and listed briefing points in the wrong order. Sanchez’s behavior was a sign that he had a reading disorder. Sanchez’s supervisors followed up with him to assess his reading abilities. Sanchez exhibited the same issues that he had while reading the daily report. Sanchez’s supervisors sent him for a medical evaluation, which concluded that Sanchez had Mixed Receptive-Expressive Language disorder. Given Sanchez’s job, the disorder posed a potential threat to national safety and, once diagnosed with the condition, Sanchez lost his safety and security clearance. The lead psychologist for the Department recommended that Sanchez not be recertified under HRP, that the Department facilitate pursuit of a different job where an accommodation was feasible, and to discuss with Sanchez the findings and recommendations of the evaluation.
Sanchez sought a second opinion, which found that he had a reading disorder and agreed that Sanchez should not perform “duties associated with an emergency operations specialist.” The Department next proposed suspending Sanchez indefinitely, which it did in 2008. From the time of diagnosis and continuing through the evaluation process, Sanchez and others on his behalf made at least 12 accommodation requests, including that Sanchez be reassigned to a position that did not require HRP certification. The Department said that there was no obligation to reassign Sanchez, but encouraged him to identify vacancies and said they would try to locate a temporary reassignment. When Sanchez followed up, he was told that there would be no reassignment. Sanchez’s supervisor told him that there were no alternative assignments available. There were, however, many vacancies in non-HRP roles. Sanchez was not told about the vacancies. He requested any job, including a janitorial role, but was never reassigned. In December 2009, the Department fired Sanchez.
Sanchez sued the DOE for due process and Rehabilitation Act violations. He claimed failure to accommodate, disability discrimination, retaliation. The district court granted the DOE’s motion for judgment on the pleadings, reasoning that Supreme Court precedent prohibits courts from reviewing the merits and motives of the Executive Branch’s security clearance decisions.
The Tenth Circuit, however, found that Sanchez had stated a failure to accommodate claim. Underpinning the court’s analysis were procedural issues regarding review of HRP revocation decisions. On Sanchez’s substantive failure to accommodate claim, the court concluded that the district court had jurisdiction to address that claim. In reaching its decision, the court explained that the Rehabilitation Act requires federal employers to reasonably accommodate disabled employees, which may include reassignment to a vacant position. Sanchez was required to allege that he was disabled, otherwise qualified, and that he requested a reasonable accommodation. The Department conceded that Sanchez properly alleged that he had a disability and requested an accommodation. The issue, therefore, was whether Sanchez was otherwise qualified. Sanchez would meet his burden if he alleged that he there was a vacant position to which he could reasonably have been reassigned (and for which he was qualified). Sanchez identified 29 such positions. Based on those factual allegations, judgment on the pleadings in the Department’s favor was improper.