Employers sometimes need to be reminded that a reasonable accommodation can be an easy thing. Refusing to make one without first engaging in the “interactive process” can result in prolonged litigation. After all, everyone is entitled to their decade in court.
Today’s story involves a former VA employee who the Eleventh Circuit decided will be able to have a jury decide if she was illegally denied permission to park in the VA lot for non-probationary employees while she was still in her probationary period. Wilson v. Secretary of Veterans Affairs, 2022 U.S. App. LEXIS 15303 (11th Cir. June 3, 2022).
In 2009 (yes, you read the date right) Pamela Wilson was hired as a claims examiner (VCE) in the VA’s Atlanta regional office. Due to space availability, once an employee completes their probationary period they can park on-site. Until then, however, a probationary employee has to either walk the mile to the VA office from the probationary VCE satellite lot or take a shuttle. Among other less than optimal things, the shuttle had a limited capacity and only arrived at infrequent times.
Wilson suffers from degenerative disc disease and partial paralysis in both feet. Although she was still in her probationary period, Wilson asked (she claimed six times) to use the on-site lot, and justified her request by pointing to her mobility issues. She was refused the accommodation and was told that “parking is not a condition of employment, nor related to the essential functions of your position.”
So Wilson engaged in self-help. To quote the court, “[b]ecause of the shuttle’s shortcomings, Wilson effectively faced the option of either walking to work – which ‘put enormous pressure on her nerves’ and caused her legs and feet to swell – or parking in unassigned handicapped spaces on the on-site parking deck. Wilson made the latter choice, leading to numerous parking tickets and counseling memos about her unauthorized parking.”
Only after Wilson filed an EEOC claim did the VA send her a letter titled “Certification of Need for a Reasonable Accommodation.” The letter again stated that parking was not an essential function of her job. Wilson failed to respond when the VA asked her to provide medical documentation. But it took four months before the VA got around to asking for documentation, and the request was written in a way that sounded like the request was already denied.
There was more back and forth over the years. Eventually Wilson sued under the Rehabilitation Act for disability discrimination and retaliation. The district court granted summary judgment to the VA.
On appeal the Eleventh Circuit took a different view of the discrimination claim, while affirming the VA’s win on the retaliation claim. The VA argued that Wilson did not follow its policies after the first two times she made her accommodation request. But, the court reflected, it was enough that she made them to get her past summary judgment: “Whether Wilson followed the VA’s policy creates a triable issue of fact because a reasonable juror could find that even Wilson’s first two communications with the VA were requests for an accommodation.”
Furthermore, said the court, under the Rehabilitation Act, Wilson “needed only request the accommodation and demonstrate that it is reasonable. . . . It was therefore sufficient that Wilson requested to park on-site and justified her request by informing the VA about her mobility limitations and her belief that the accommodation would resolve the issue.”
True, Wilson failed to respond when the VA asked for medical documentation. But the court stressed that a jury could find the four months it took before the VA got back to her created a factual dispute. Put otherwise, the court found that “there are genuine factual disputes concerning whether the VA engaged in the interactive process in good faith and thus failed to accommodate Wilson’s requests for accommodations.”
What’s the takeaway here? It’s a best practice to treat every request for an accommodation with prompt consideration. Even if an accommodation does not sound like it involves an “essential function of the job,” an employer should engage in dialogue and the interactive process. Because just a “no” will rarely be good enough to get an employer a win without going to trial.