ALFRED BROWN, Plaintiff - Appellant, v. LLOYD J. AUSTIN, Secretary of Defense; U.S. DEPARTMENT OF DEFENSE, Defendants - Appellees.
No. 20-1049
United States Court of Appeals, Tenth Circuit
September 15, 2021
Before MATHESON, EBEL, and MORITZ, Circuit Judges.
PUBLISH
Appeal from the United States District Court for the District of Colorado (D.C. No. 1:17-CV-02004-RM-STV)
Marisa L. Williams of Williams & Rhodes, LLP, Englewood, Colorado (Madeline A. Collison of Sweeney & Bechtold, Denver, Colorado, with her on the briefs), for Plaintiff-Appellant.
Susan Prose, Assistant United States Attorney (Jason R. Dunn, United States Attorney, with her on the brief), Denver, Colorado, for Defendants-Appellees.
MORITZ, Circuit Judge.
* We substitute Lloyd J. Austin, Secretary of Defense, in place of his predecessor, Mark Esper. See
We find no flaw in either ruling. Regarding Brown‘s failure-to-accommodate claims, granting Brown‘s telework and weekend-work requests would have eliminated essential functions of his job, making those requests unreasonable as a matter of law. Brown‘s reassignment request was also unreasonable, though for a different reason: Brown did not allege the limited circumstances in which the Agency would need to consider reassigning him despite the fact that he performed the essential functions of his position with other accommodations. And we decline Brown‘s invitation to expand those limited circumstances to include reassignments that allow an employee to live a “normal life.” Aplt. Br. 13. Further, Brown has not alleged a prima facie case of retaliation, disparate treatment, or constructive discharge. For these reasons, we affirm summary judgment for the Agency.
Background
In April 2010, the Agency hired Brown as a healthcare fraud specialist (HCFS) assigned to the Program Integrity Office (PIO) in Aurora, Colorado. As an HCFS, Brown coordinated with various law-enforcement agencies to investigate fraud in the military‘s healthcare system. Along with two other HCFSs, Brown served on a four-person team led by his immediate supervisor, Joseph O‘Brien. Brown‘s other supervisor was the PIO Director, John Marchlowska.
Shortly after joining the Agency, Brown told his supervisors that he had been diagnosed with posttraumatic stress disorder and other panic and anxiеty disorders related to his military service. Brown also told his supervisors that these conditions affect his ability to manage stress, concentrate, and communicate, and that stressful environments can aggravate his symptoms and sometimes cause panic attacks. Despite his disabilities, Brown received a satisfactory performance review each year he was with the Agency.
When Brown‘s symptoms worsened in September 2011, he was hospitalized and received in-patient treatment for one week. The Agency approved Brown‘s request for leave under the Family and Medical Leave Act (FMLA). It continued to approve FMLA leave after Brown returned to work, ultimately approving 12 weeks during Brown‘s first two years on the job.
In May 2012, Brown formally requested accommodations for his disabilities. Among other things, Brown wanted tо work remotely twice a week and work weekends to make up time lost during the week. The Agency rejected those requests but did allow Brown to telework one day per week, even though office policy at the time permitted only one telework day every two weeks. The Agency also eliminated Brown‘s air travel—a function which it deemed nonessential to his job. And it provided Brown with a noise-cancelling headset and sent employees an email reminding them to follow office etiquette and reduce noise levels around cubicles. Brown rejected other measures the Agency offered to reduce office-related stress, including moving his cubicle to a less-trafficked area, raising the walls on his cubicle, and allowing unpaid wellness breaks.1
During the accommodations process, Brown sepаrately met with O‘Brien to request a transfer to another supervisor‘s team. O‘Brien denied the request because the supervisor that Brown preferred had
During Brown‘s remaining time with the Agency, he continued performing his job duties but had a strained relationship with his supervisors. In September 2013, for example, Brown and O‘Brien heatedly argued after O‘Brien requested more work from Brown on a case investigation. According to Brown, O‘Brien unfairly criticized Brown‘s work and yelled at Brown when Brown dropped a case file on O‘Brien‘s desk. O‘Brien maintained that Brown did the yelling and that Brown threw the folder at O‘Brien. The Agency placed Brown on paid administrative leave while it investigated the incident. Marchlowska ultimately issued Brown a reprimand letter, and Brown returned to work.
Brown‘s strained relationship with his supervisors came to a head in July 2014. In an email, Brown expressed frustration that O‘Brien had denied another supervisor-transfer request, a decision that Brown attributed to “bias and prejudicial motives.” App. vol. 6, 1407. Responding a few hours later, O‘Brien explained his decision, criticized Brown‘s poor attitude, and refuted Brown‘s allegation that bias or prejudice influenced the decision, encouraging Brown to speak with officials who investigate discrimination complaints—who would be available at Brown‘s workplace the following week—if he disagreed. Brown resigned nine days later, and then sued the Agency under the Rehabilitation Act for allegedly failing to accommodate his disabilities and discriminating against him based on his disabilities.2 The district court granted summary judgment for the Agency on all Brown‘s claims, and Brown appeals.
Analysis
We review an order granting summary judgment de novo, applying the same standard as the district court. Talley v. Time, Inc., 923 F.3d 878, 893 (10th Cir. 2019). Under that standard, summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Id. (quoting
I. Failure to Accommodate
To state a claim for failure to accommodate under the Rehabilitation Aсt,3 Brown must show that he “(1) is disabled; (2) is ‘otherwise qualified‘; and (3)
A. Telework
We begin with Brown‘s request to telework twice a week. Brown argues that the district court treated this request as “per se unreasonable.” Aplt. Br. 17 (italics omitted). In other words, Brown contends the district court erroneously concluded that the Rehabilitation Act takes such а request “off the table as a matter of law.” Id. at 18. But as the Agency notes, that‘s not what the district court concluded. Instead, it determined the Agency had shown that granting Brown‘s request would require eliminating an essential function of his job—being in the office at least four days a week. See Mason v. Avaya Commc‘ns, Inc., 357 F.3d 1114, 1122 (10th Cir. 2004) (holding that employee‘s “physical attendance . . . was an essential function . . . because the position required supervision and teamwork“). Based on this determination, the district court concluded that the Rehabilitation Act did not require this accommodation. See Unrein v. PHC-Fort Morgan, Inc., 993 F.3d 873, 878 (10th Cir. 2021) (“[A]n employee‘s request to be relieved from an essential function of [his or] her position is not, as a matter of law, a reasonable or even plausible accommodation.” (quoting Punt v. Kelly Servs., 862 F.3d 1040, 1051 (10th Cir. 2017))); see also Hwang v. Kan. State Univ., 753 F.3d 1159, 1162 (10th Cir. 2014) (applying this rule to Rehabilitation Act claim). The issue, then, is whether Brown‘s presencе in the office at least four days a week constituted an essential function of his job.
And Brown fails to dispute the material facts establishing that being in the office at least four days a week was an essential function. Brown‘s supervisors explained that a core responsibility for an HCFS is conducting fraud investigations, which requires access to case files. At the time of Brown‘s employment, those files only existed in paper form; the Agency was in the process of digitizing the paper files when Brown resigned. The only way employees could remotely access case files was to scan them, a time-consuming task given the undisputed evidence that the files “could be anywhere from [two] inches . . . to [three] feet in thickness.”5 App. vol. 4,
To be sure, physical presence in the office does not become an essential function of Brown‘s job simply because the Agency says so. For instance, Brown could show that the Agency‘s view was not “job-related, uniformly enforced, [or] consistent with business necessity.” Mason, 357 F.3d at 1119; see also Hwang, 753 F.3d at 1164 (“[I]f it turns out that an employer‘s supposedly inflexible . . . policy is really a sham and other employees are routinely granted dispensations that disabled employees are not, an inference of discrimination will naturally arise.“). But without such evidence, we generally defer to an employer‘s judgment about whether a function is essential. See Mason, 357 F.3d at 1119.
Brown failed to produce such evidence here. His own belief that he could perform the essential functions of his job from home is not enough. See id. at 1121. And although Brown cites coworkers’ statements about the feasibility of teleworking more than once a week, those statements describe remote-work capabilities after Brown had resigned and the Agency digitized its files.6 The same problem arises with Brown‘s evidence that the Agency allowed others to telework twice a week: Brown cites fellow HCFS Tom Coufal‘s statement at a deposition taken years after the paperless transition that he was then working remotely twice a week, but nothing suggests that Coufal did so during Brown‘s tenure.
The only other evidence Brown relies on to question the Agency‘s judgment is the HCFS job description. He first faults the district court for relying on the description‘s statement that “[w]ork is performed in an office setting,” noting that this phrase appears on the last page in a section that doesn‘t concern essential functions. App. vol. 1, 64. He further insists that no other language in the job description expressly requires working in the office. But under our precedent, the job description need not explicitly state that an HCFS must be present in the office. See Mason, 357 F.3d at 1121–22 (rejecting claim that “attendance, supervision, and teamwork” were nonessential funсtions because
In short, the district court properly granted summary judgment for the Agency on Brown‘s telework failure-to-accommodate claim. Brown created no genuine dispute about whether working in the office four days a week was an essential function, so his request to eliminate that function was unreasonable. See Unrein, 993 F.3d at 878 (noting that accommodation request is unreasonable if it would eliminate essential function). This conclusion means that Brown “has not carried [his] burden of proving a prima facie case of disability discrimination.” Mason, 357 F.3d at 1124 & n.4. As a result, “[w]e need not reach whether [the Agency] could prove the undue[-]hardship affirmative defense.” Id. at 1124 n.4.
B. Working Weekends
We next consider Brown‘s request to work weekends to make up for missed time during the week, which the district court found unreasonable for the same reason as the telework request: it would eliminate an essential function of Brown‘s job. Brown‘s challenge to this ruling also fails.
The Agency produced evidence that being available in the office during the week was an essential function of an HCFS‘s job. To investigate fraud in the military hеalthcare system, HCFSs collaborate with law-enforcement partners who work “a standard 8–10 hour a day schedule,” Monday through Friday. App. vol. 4, 1040. If an HCFS were to swap some weekdays for weekends, he or she could not provide timely support to those partners as needed. Plus, no supervisor (or any employee) worked weekends, so the Agency could not monitor any such weekend work. From this evidence, the district court properly concluded that weekday availability was an essential function.
Brown responds that the Agency had allowed him and others to work weekends in the past. But all the evidence he cites involves requests for so-called credit hours. Under an overtime policy, employees could earn those hours for work performed “in excess of” an employee‘s “basic work requirement” during the week. App. vol. 1, 67, 69. As O‘Brien explained, the Agency approved credit hours only for urgent periods when a law-enforcement partner required immediate assistance on a case. The statements from other HCFSs that Brown highlights only confirm this point—they all said that supervisors would sometimes approve additional hours for weekends or evenings during especially busy periods; none said that they ever worked weekends or evenings instead of their core hours. No evidence permits even an inference that the Agency allowed employees to work weekends regularly, rather than as overtime.
Even so, Brown contends, nothing prevented the Agency from allowing him to work weekends. His sole support is an email from an Agency attorney advising that, in responding to Brown‘s accommodations request, O‘Brien could “go beyond” office policies and grant “a work schedule that d[id] not include work during all core periods.” App. vol. 6, 1402. The district court‘s summary-judgment order did not mention this email, but neither did
In sum, Brown‘s request to work weekends to make up for missed weekday work was not plausibly reasonable because granting it would require eliminating an essential function of his job. See Unrein, 993 F.3d at 878. For that reason, he failed to state a prima facie claim for failure to accommodate, and the district court properly granted summary judgment for the Agency. This conclusion makes it unnecessary to consider the Agency‘s undue-hardship defense. Mason, 357 F.3d at 1124 n.4.
C. Reassignment
Brown‘s last failure-to-accommodate claim focuses on his requests to be reassigned to another PIO supervisor‘s team.7 The district court determined that this accommodation was unreasonable not because it would eliminate an essential function, but because Brown “ha[d] not presented evidence of circumstances requiring reassignment.” App. vol. 1, 279. Brown contends that the district court based that decision on a mistaken view of the Agency‘s heightened accommodation duties as a federal еmployer. The district court, Brown asserts, assumed that the Agency was required to grant only those accommodations that would enable him to perform the essential functions of his job. But according to Brown, the Rehabilitation Act sometimes requires federal employers to grant an accommodation even if a disabled employee can perform essential functions without it. As support, he points to Sanchez v. Vilsack, where we held that transferring an employee so that she could obtain medical treatment “may be a reasonable accommodation under the Rehabilitation Act” even if the employee could “perform the essential functions of her job without” a transfer. 695 F.3d at 1182. Accordingly, Brown argues, the district court erred in treating his reassignment request as unreasonable simply because he could do his job without it.8
Brown also appears to dispute the district court‘s view that he had not requested reassignment for medical treatment, as the employee in Sanchez had. For instance, Brown points out that early in the accommodations process, his physician noted that “[Brown] m[ight] need to be reassigned to another position” if other accommodations he requested were “not sufficient to minimize his strеss so that he is able to perform his duties.” App. vol. 4, 1036. But Brown doesn‘t dispute that he performed his duties without reassignment. And importantly, no evidence shows that he ever requested a transfer for the reasons his physician identified; that is, he never framed his transfer requests in terms of medical necessity. Rather, the evidence shows that he requested another supervisor based on complaints about how O‘Brien had handled various conflicts between them. Because Brown was performing the essential functions of his job and did not request a supervisor transfer for medical reasons, the district court properly determined that he “ha[d] not presented evidence of circumstances requiring reassignment.” App. vol. 1, 279.
Even if Brown had framed his transfer request to focus on minimizing stress, it would not have met the narrow circumstances in which we have said thаt a federal employer‘s heightened accommodation duty applies: when an employee seeks “a transfer accommodation for medical care or treatment.” Sanchez, 695 F.3d at 1182 (emphasis added). In Sanchez, we found that the employee‘s requested transfer to another state—where the doctors “were qualified to provide [a] specialized therapy” for her disability—was “not per se unreasonable.” Id. at 1176, 1182. In so doing, we relied in part on Buckingham v. United States, 998 F.2d 735 (9th Cir. 1993). Id. at 1181. There, too, the Ninth Circuit held that it was not per se unreasonable for an employee to request an interstate transfer “to obtain better medical treatment for his disabling condition.” Buckingham, 998 F.2d at 737; see also Rascon v. U.S. W. Commc‘ns, Inc., 143 F.3d 1324, 1333 (10th Cir. 1998) (discussing employee‘s leave request to attend doctor-recommended “long-term in[]patient treatment” for posttraumatic stress disorder). Had Brown requested a transfer to reduce stress caused by a strained relationship with his supervisor, that request would patently differ from the medical-treatment requests in Sanchez and Buckingham.
To summarize, Brown performed the essential functions of his job without reassignment and alleged no circumstance that would have required the Agency to reassign him despite that fact. Accordingly, his last request for an accоmmodation—like the first two—was not plausibly reasonable. See Sanchez, 695 F.3d at 1182. The district court properly granted summary judgment for the Agency on Brown‘s failure-to-accommodate claims.9
II. Disability Discrimination
Next, Brown challenges the district court‘s award of summary judgment to the Agency on his retaliation, disparate-treatment, and constructive-discharge claims.10
A. Retaliation
To state a claim for retaliation, Brown must show “(1) that he engaged in protected opposition to discrimination, (2) that a reasonable employee would have found the challenged action materially adverse, and (3) that a causal connection existed between the protected activity and the materially adverse action.” EEOC v. C.R. England, Inc., 644 F.3d 1028, 1051 (10th Cir. 2011) (quoting Proctor v. UPS, 502 F.3d 1200, 1208 (10th Cir. 2007)). Regarding the second element, an adverse action is generally one that causes a significant change in employment stаtus or benefits. See id. at 1040. As explained below, we agree with the district court that each of Brown‘s four retaliation claims fails this second element.
Second, Brown asserts that O‘Brien denied a supervisor transfer in July 2012 in retaliation for Brown filing a discrimination complaint. Yet as the Agency points out, Brown offered no evidence of an “objective advantage” in the supervisor transfer. Aplee. Br. 54. Rather, he offered only his subjective preference. And we have held that no reasonable employee would find it materially adverse for an employer to deny a request to transfer when the request is based solely on the employee‘s “personal preference” rather than on some “objective advantage” of the preferred position. Semsroth v. City of Wichita, 555 F.3d 1182, 1185 (10th Cir. 2009) (finding employee‘s subjeсtive preference for transfer insufficient to show materially adverse action for
Brown‘s third retaliation claim involves the September 2013 argument with O‘Brien. Recall that after the argument, the Agency placed Brown on paid administrative leave and later issued a reprimand letter. Even though Brown lost no pay or benefits from these events, he argues that he can show material adversity under a line of cases involving conduct thаt “carries a significant risk of humiliation, damage to reputation, and a concomitant harm to future employment prospects.” Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996). But those cases—in which employers subjected their employees to “necessarily
Brown‘s fourth and final retaliation claim stems from the July 2014 email thread in which Brown accused O‘Brien of denying a transfer request for discriminatory reasons. Brown characterizes O‘Brien‘s response as “blatantly criticizing [Brown] for filing complaints and seeking accommodations.” Aplt. Br. 45. But on the contrary, O‘Brien‘s email merely denied Brown‘s accusation and encouraged him to speak with officials who investigate discrimination complaints if he disagreed. Nothing in O‘Brien‘s response would “dissuade a[ reasonable] emplоyee from filing complaints or requesting accommodations.” Id. In fact, it did not dissuade Brown, who followed O‘Brien‘s suggestion and filed a new discrimination complaint a few days later. See Somoza v. Univ. of Denver, 513 F.3d 1206, 1214 (10th Cir. 2008) (“[T]he fact that an employee continues . . . undeterred in his or her pursuit of a remedy . . . may shed light [on] whether the actions are sufficiently material and adverse to be actionable.“). As with Brown‘s other retaliation claims, a reasonable person could not find that O‘Brien‘s July 2014 email was a materially adverse action. Thus, the district court properly granted summary judgment on all of Brown‘s retaliation claims.
B. Disparate Treatment
To create a jury issue on disparate treatment, Brown was required to show that he suffered an adverse employment action because of his disability. See C.R. England, 644 F.3d at 1037–38. An adverse employment action is one that causes a significant chаnge in employment status or benefits. Id. at 1040. The district court determined that each of Brown‘s three disparate-treatment allegations did not constitute adverse action. We agree.
Two of Brown‘s disparate-treatment allegations also underlie his retaliation claims, and they fail for the same reasons as those claims fail. Brown first argues that the Agency took adverse action by revoking his privilege to work non-core hours for credit. But again, no evidence shows that he ever had such a privilege, so his employment status did not change when the Agency would not allow him to make up lost time on the weekends. The second overlapping allegation involves the September 2013 argument and the Agency‘s actions following it, which Brown found “very embarrassing and publicly humiliating.” Aplt. Br. 48–49. As with the retaliation claim based on this incident, Brown does not explain why it caused reputational damage of the kind that would significantly change his employment status. Cf. Berry, 74 F.3d at 986 (holding that employer‘s false allegations that led to criminal trial had obvious reputational impact). Brown has therefore failed to show that he was subjected to an adverse action for either of these claims.
C. Constructive Discharge
Last, Brown argues that his constructive-discharge claim should have survived summary judgment. The district court held otherwise after finding Brown lacked evidence showing that working conditions were so intolerable that “a reasonable person in his position would have felt compelled to resign.” Rivero, 950 F.3d at 761 (quoting Green v. Brennan, 136 S. Ct. 1769, 1777 (2016)). Brown‘s claim suffers from this same defect on appeal. He continues to assert that the Agency‘s actions “led [him] to believe that he had no choice but to resign.” Aplt. Br. 52 (emphasis added). But his own subjective view is not sufficient; he must show that conditions were objectively unbearable, meaning any reasonable person in his position would have quit. See Rivero, 950 F.3d at 761. Although Brown may have found cоnditions “extremely difficult,” his subjective experience does not establish that “objectively [the Agency‘s] actions left [him] no choice but to resign.” Sanchez v. Denver Pub. Sch., 164 F.3d 527, 534 (10th Cir. 1998). For that reason, the district court properly determined that Brown had not shown a triable issue on his constructive-discharge claim.
Conclusion
Brown fails to establish a genuine dispute of material fact on his Rehabilitation Act claims. Regarding his failure-to-accommodate claims, we conclude that Brown‘s telework and weekend-work requests would have eliminated an essential function of his job—being present in the office at least four days per week—and were therefore unreasonable accommodations. Further, we agree with the district court that Brown did not allege circumstances that would have required the Agency to consider reassignment as an accommodation, given that he was performing the essential functions of his current job with other accommodations. We have recognized such a heightened accommodation requirement only in the limited circumstance where an employee requested a transfer for medical care or treatment; we decline Brown‘s invitation to expand those circumstances to include reassignments that allow an employee to live a “normal life.” Aplt. Br. 13. As for Brown‘s disability-discrimination claims, we hold that
As a final matter, Brown‘s June 22, 2020 sealing motion is granted to the extent that volumes three through seven of the appendix filed on July 20, 2020, will remain under seal in light of the redacted versions of those same appendix volumes filed on March 12, 2020.