Tag Archives: United States Court of Appeals

Disabled Worker

The Interactive Process between and Employer and Employee for Reasonable Accommodation Requests

Is an employer request’s for additional information a failure to engage in the interactive process?

According to the United States Court of Appeals for the District of Columbia, under the Americans with Disabilities Act, an employer cannot be held liable for discrimination or constructive discharge when an employee requests reasonable accommodations and voluntarily terminates the interactive process.

When an employee makes a request for a reasonable accommodation, an employer may request and require additional information and documentation regarding a disability before granting the accommodation. Once the request is made, the parties engage in an interactive process to determine the limitation(s) of the employee as a result of the disability and the accommodation that would be reasonable given the limitation(s). The interactive process is a collaborative one in which parties must not act in bad faith (purposeful delays or failing to communicate).

In Ward v. McDonald, a federal employee requested reasonable accommodations after being diagnosed with a condition that prevented her from performing daily light movements and required a three (3) hour self-administered medical maintenance procedure. As a result, the employee requested accommodations to work full-time from home. The employee submitted two (2) letters from physicians, as requested from her employer, which were followed by an additional request for more detailed information. The employer put each response to the request for accommodation in writing and outlined, with specificity, the additional information that was sought.

In response to the last request, the employee did not submit the requested documentation, but instead resigned from her position. The employee alleged the employer discriminated against her, resulting in a constructive discharge. The Court ruled that the employee ended the interactive process by resigning and “walking away,” and that the employer acted in good faith; therefore, the employer could not be held liable for discrimination or constructive discharge.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070www.jmlaw.net, or jmccollum@jmlaw.net.

EEOC Retaliation Claims and Security Clearances

Plaintiff, the FBI’s Legal Attaché in Saudi Arabia, filed race and national origin-based discrimination charges against his supervisors with the  United States Equal Employment Opportunity Commission(“EEOC”). After the charges were filed, one of Plaintiff’s supervisors referred him for a security investigation, maintaining that his connection with Saudi officials had put Plaintiff “inappropriately under the influence of his Saudi counterparts.”  An investigation concluded that the claims underlying his supervisor’s referral were baseless. Plaintiff filed suit under Title VII, claiming that the security referral was made in retaliation for his EEOC complaint. The government filed a motion to dismiss on the grounds that the retaliation claim was non-justiciable under Department of Navy v. Egan, 484 U.S. 518 (1988), which held that “employment actions based on denial of security clearance are not subject to judicial review, including under Title VII.”

In its initial decision, the United States Court of Appeals for the District of Columbia Circuit held that precedent “shields from review only those security decisions made by the FBI’s Security Division” and “not the actions of thousands of other FBI employees…like [Plaintiff].” The Court of Appeals remanded due to erroneous jury instructions, and particularly permitted the Title VII action against Planitff’s supervisors to go forward to the degree that the referral was premised on factually incorrect or misrepresentative information.

Upon rehearing, the Court of Appeals again held that Egan applies only to employees who routinely handle security clearances. In response to the government’s argument that allowing a Title VII action would end security reports that executive employees are required to make under Executive Order 12,968, the Court of Appeals narrowed its prior decision. The Court of Appeals held that Title VII allegations based on “knowingly false” information could advance consistent with Egan. Since some of the claims underlying the supervisor’s referral were false, the Court of Appeals remanded so that the district court could determine whether adequate evidence of knowingly false information existed to allow Plaintiff’s claims to go before a jury.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070 or jmccollum@jmlaw.net.

Employment Law and Defamation

The District of Columbia Court of Appeals ruled that The American Israel Public Affairs Committee (the “AIPAC”) did not defame its former policy director by condemning his behavior amid a federal investigation. The AIPAC suspended its former policy director and another employee in 2005 after finding out that they were entangled in an FBI investigation involving a Pentagon official.

At issue were comments that an AIPAC spokesman gave to the New York Times. In 2005, an AIPAC spokesman was quoted as saying that the former policy director was fired because he failed to meet “the standards that AIPAC expects from its employees.” A 2008 article repeated that statement, and added that an AIPAC spokesman had more recently said that the organization “still held that view of [the former policy director’s] behavior.”

The Court of Appeals agreed that the AIPAC had no written standards for employee conduct at the time the former policy director was fired. However, the AIPAC claimed that there were unwritten standards presuming employees would obey the law, and also follow the advice of AIPAC’s lawyers and correspond with the organization with “total candor.” The Court of Appeals held that the “standards” the AIPAC spokesman referred to in both instances were not “well-defined” and were open to numerous interpretations.  Established precedent, therefore, mandated that the defamation claim could not succeed where there are multiple interpretations. In sum, the AIPAC, in the view of the Court of Appeals, had not slandered its former policy director in either article.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070 or jmccollum@jmlaw.net.


United States Has Not Consented to Being Sued in State Court Under Title VII

The United States Court of Appeals has concluded (2-1) that the United States and the Secretary of Homeland Security, a federal agency, did not consent to be sued in state court in a Title VII discrimination action.  The majority opinion reached its conclusion despite the unanimous Supreme Court decision in Yellow Freight Sys., Inc. v. Donnelly, 494 U.S.  820 (1990), that state courts have concurrent jurisdiction with federal courts over Title VII actions.  Stay tuned.  If not now, the Supreme Court may have to weigh in on this issue.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070 or jmccollum@jmlaw.net.

Threatening and Disciplining Outspoken Union Supporters

The United States Court of Appeals for the District of Columbia Circuit issued a decision involving the provision of the National Labor Relations Act that makes it unlawful for employers to “interfere with, restrain, or coerce employees” when they exercise the rights guaranteed under that statute.  In sum, the employer in that case threatened and disciplined an outspoken employee-union supporter.  Among other items, the employer (1) told the employee-union supporter to “stop worrying about the Union and worry about your job,” (2) investigated the employee-union supporter, (3) disciplined the employee-union supporter without an inquiry into her actions, contrary to the employer’s company policy, and (4) unlawfully interrogated the employee-union supporter over union literature.  Not surprisingly, the Court of Appeals agreed with the National Labor Relations Board that the employee-union supporter’s protected activities were a motivating factor in her discipline and that the employer would not have taken the same actions in the absence of anti-union considerations.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070 or jmccollum@jmlaw.net.