Ella WARD, Appellant v. Robert MCDONALD, Secretary, U.S. Department of Veterans Affairs, Appellee.
No. 12-5374.
United States Court of Appeals, District of Columbia Circuit.
Decided Aug. 12, 2014.
Argued April 17, 2014.
Verrusio has not shown that Moeglein‘s testimony was material in the above sense. He contends that he could have “elicit[ed] testimony from [her] about her interactions with Hirni, including his offer to buy her lunch and his offer of tickets to a sporting event.” Reply Br. 24 (citing trial proffer). But the fact that the lobbyist offered other staffers gifts hardly exculpates Verrusio, whether or not those gifts constituted illegal gratuities. Verrusio also proffers that Moeglein would have said “that Mr. Verrusio was not in fact inserting himself in the process, that he was not placing the pressure on her, that she independently was communicating with Mr. Hirni, and that she has no recollection of any pressure being put on her by Mr. Verrusio.” Id. (quoting App. 342). But as we explained above, see supra Part II.B.3, the government was not required to show that Verrusio took any affirmative steps to add United Rentals’ amendments to the federal highway bill, let alone that he pressured Moeglein to act in United Rentals’ favor. Moreover, even if the proffer were accurate, the fact that Verrusio did not pressure one staffer is no (or, at best, extraordinarily weak) evidence that he did not try to influence others.
Finally, we note that, after the court quashed the subpoena, it went on to consider whether to strike two previously admitted email chains between Moeglein and Hirni. The issue was resolved when the parties instead agreed to redact Moeglein‘s statements from the email chains, strike testimony discussing those statements, and preclude argument about her conduct. App. 361-62, 366-68. Verrusio still argued that he needed Moeglein as a witness to explain the statements that Hirni made to her in emails. But the redactions greatly, if not entirely, mitigated the value of her testimony, given that the “speaker” in the emails—Hirni—testified at trial and was subject to cross-examination. Verrusio has not suggested what kind of admissible testimony Moeglein could have offered to explain Hirni‘s statements. And he has proffered nothing to suggest that his inability to put Moeglein on the stand “actually prejudiced [his] ability to mount a defense.” Dean, 55 F.3d at 662. Accordingly, we find no error in the district court‘s denial of Verrusio‘s motion to dismiss the indictment.
V
For the foregoing reasons, we conclude that Verrusio‘s indictment did not omit an essential element of the charges against him, that the evidence at trial was sufficient to sustain his convictions, and that Verrusio was not prejudiced by the district court‘s decisions to exclude a defense exhibit and quash a defense subpoena. The judgment of the district court is therefore Affirmed.
Alexander D. Shoaibi, Assistant United States Attorney, argued the cause for the appellee. Ronald C. Machen Jr., United States Attorney, and R. Craig Lawrence, Assistant United States Attorney, were on brief.
Before: HENDERSON and MILLETT, Circuit Judges, and RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
Dissenting opinion filed by Circuit Judge MILLETT.
KAREN LECRAFT HENDERSON, Circuit Judge:
Ella Ward was an attorney advisor at the Board of Veterans Appeals (BVA), a part of the United States Department of Veterans Affairs (VA). After developing a medical condition that required lengthy daily treatments and prevented her from sitting at a desk for long periods, she sought an accommodation allowing her to work full-time from home. Ward supported her request with two physicians’ letters containing terse descriptions of her
I. Background
A. The Rehabilitation Act
“The Rehabilitation Act of 1973 governs employee claims of handicap discrimination against the Federal Government. Its basic tenet is that the Government must take reasonable affirmative steps to accommodate the handicapped, except where undue hardship would result.” Barth v. Gelb, 2 F.3d 1180, 1183 (D.C. Cir. 1993). The Act provides that “[n]o otherwise qualified individual with a disability” shall be discriminated against by a federal agency “solely by reason of her or his disability.”
The Act expressly incorporates the standards applied under the Americans with Disabilities Act (ADA).
B. Factual Background1
When a veteran‘s claim for benefits is denied by a local or regional office of the VA, the veteran may appeal to the BVA. The judges who decide such appeals are assisted by attorney advisors who read the case files, review the evidence and prepare draft opinions. Beginning in 2001, Ward served as one such attorney advisor. Hers was the quintessential desk job—reading, writing, typing—with the only physical duty being that she had to carry sometimes unwieldy case files from the judges’ offices to her desk. She typically worked eight- to ten-hour days and, like her colleagues, was expected to produce three “credits” per week—each credit corresponding to the preparation of roughly one case.
In 2005, Ward began to suffer from chronic severe lymphedema of the lower right extremity, which causes her right foot and leg to swell with retained fluid.
In mid-2006, Ward converted to part-time status for a few months so that she could receive treatments at the hospital. She returned to full-time status in September 2006. She also took some leave time pursuant to the Family Medical Leave Act (FMLA). Ward testified that she struggled at times to meet the three-credit per week expectation, see Joint Appendix (JA) 97-98, but it is undisputed that her final performance review, dated April 5, 2007, rated her “[f]ully [s]uccessful or better,” JA 447.
Ward‘s condition began to deteriorate and in early 2007 she first requested an accommodation. After speaking in March 20072 with her then-supervisor Constance Tobias, in April Ward presented her interim supervisor Mark Greenstreet with a letter from Dr. David Rose, a cardiothoracic and vascular surgeon. The letter was brief. It stated that Ward “has been receiving physical therapy treatments for a chronic medical condition of the right lower extremity that requires routine daily care at home” and that “she is unable to apply the treatment routinely at work, which exacerbates the condition.” JA 205. Rose‘s letter concluded that Ward “will benefit from a schedule that allows her to work from home. The maximum number of daily work hours will be determined as the condition stabilizes.” JA 205.
On May 3, Ward met with Greenstreet, Jonathan Kramer and another supervisor to discuss her request. They asked for more details on Ward‘s condition, which request Ward asked that they put in writing. Greenstreet did so. In a letter bearing the same date, he explained that he understood Ward to be “requesting an arrangement to work at home” but that “additional medical information is needed to process your request. Specifically, your physician needs to provide more details concerning the diagnosis and prognosis.” JA 243. The letter set forth the information the BVA needed so that it could evaluate Ward‘s “ability to perform the duties of [her] position” and determine “what specific accommodations would be required.” JA 243.
In late May, Ward submitted another letter, this time from Dr. Alice Fuisz, an internist. The letter contained the information set forth above regarding Ward‘s condition and prescribed treatment. It explained that Ward “needs medical accommodations to work at home” because sitting for long periods exacerbates her condition and therefore Ward “should sit for only short intervals of time as tolerated, and be able to apply treatment routines whenever needed during the workday.” JA 195. Fuisz‘s letter noted that the treatment routines “can take from 1 to 3 hours at a time” and that Ward‘s “disability also affects travel to and from work, but she should be able to commute to work once a week as required [to retrieve new case files].” JA 195.
On May 25, Ward met with Steven Cohn, who had since replaced Greenstreet as Ward‘s supervisor. Cohn told Ward to consider working part-time because he was concerned that she could not maintain a full-time schedule given the length of her daily treatments. On May 31, Cohn and
As requested, on June 5, Cohn sent a memo to Ward which “serve[d] to follow-up on the May 31, 2007 meeting.” JA 246. The memo stated that “the [BVA] will strive to provide you with a reasonable accommodation” but that, as discussed in the meeting, “it is not evident to the [BVA], based on the medical documentation you have provided, that the [BVA] can reasonably accommodate your request for a flexiplace [work-from-home] arrangement.” JA 246. The memo outlined two questions left unanswered by Ward‘s physicians’ letters. First, the memo asked whether Ward would be able to carry case files to and from work once a week. Second, it noted that Ward‘s job requires sitting at a desk for prolonged periods—a requirement which would be no different in a work-from-home arrangement—and expressed concern whether, factoring in time for treatment, Ward would be able to log sufficient hours to meet a full-time schedule. JA 246-47. Accordingly, the memo asked that Ward obtain a letter from her physician addressing these two questions so that the BVA could “process [Ward‘s] request for a flexiplace arrangement.” JA 247. The memo did not state any decision—one way or the other—on Ward‘s accommodation request.
Ward did not respond. Instead, on June 11, she submitted a letter of resignation. On June 22, she asked that her resignation not take effect—and that she remain on leave-without-pay status under the FMLA—until the Office of Personnel Management adjudicated her pending claim for disability retirement benefits. Then, on July 30, Ward sent a letter to the BVA‘s human resources personnel asking that the BVA “immediately terminate the deferred status of my resignation and process my involuntary resignation/constructive discharge immediately. . . . Because of BVA‘s illegal and discriminatory actions in denying a reasonable accommodation for my chronic disability by allowing me to work at home as many other attorneys with disabilities do at the BVA, I was forced out of my job and had no recourse but to resign.” JA 258.
In response, a BVA personnel officer sent Ward a letter dated August 8. The letter disputed Ward‘s assertions that her accommodation request had been denied and that she had been forced to resign. It changed the BVA‘s tune on the need for more information, however, stating: “[A]lthough you never submitted any additional medical information as requested, the [BVA] has nevertheless reconsidered your reasonable accommodation request and is willing to consider allowing you to try work-from-home on a full-time basis.” JA 261. The letter asked that Ward respond within five days of August 8, but Ward attested that she did not receive it until more than five days later. She never responded.
C. District Court Proceedings
Ward obtained a notice of right to sue from the Equal Employment Opportunity Commission (EEOC) and timely filed suit in district court. Her complaint alleged
The district court granted summary judgment to the VA Secretary on both claims. Ward v. Shinseki, No. 10-cv-1414, 2012 WL 5839711 (D.D.C. Nov. 19, 2012), reprinted in JA 862-81. It reached three conclusions with respect to Ward‘s failure to accommodate claim: (1) the BVA acted in good faith by engaging in an interactive process to determine a reasonable accommodation but Ward walked away from that process, see JA 873-76; (2) the BVA‘s August 8 letter offered Ward the very accommodation she sought, see JA 876-79; and (3) Ward had not demonstrated that she could perform the essential functions of her job with an accommodation, see JA 879-80. Having rejected Ward‘s failure to accommodate claim, the district court held that her constructive discharge claim failed a fortiori. JA 880-81.
Ward timely appealed. We review the district court‘s grant of summary judgment de novo. Mogenhan, 613 F.3d at 1165. “Summary judgment is appropriate only if ‘there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law.‘” Id. (quoting
II. Failure to Accommodate Claim
To prevail on her claim that the BVA failed to accommodate her disability, Ward must produce sufficient evidence that (1) she was a qualified individual with a disability, (2) the BVA had notice of her disability and (3) the BVA denied her request for a reasonable accommodation. Stewart v. St. Elizabeths Hosp., 589 F.3d 1305, 1307-08 (D.C. Cir. 2010). Ward bears the burden of proving these elements by a preponderance of the evidence. Barth, 2 F.3d at 1186. The second element is undisputed: The BVA had notice of Ward‘s condition. The district court concluded that Ward had not satisfied the first element because she failed to demonstrate that she could perform the essential functions of her job with an accommodation. See JA 879-80. We express no opinion on that conclusion, however, because we agree with the district court that Ward failed to satisfy the third element: No reasonable jury could find that Ward‘s accommodation request was denied in light of the BVA‘s continuing good-faith dialogue with Ward to determine an appropriate accommodation, which dialogue was cut short by Ward‘s sudden resignation. See JA 873-76.
Few disabilities are amenable to one-size-fits-all accommodations. To meet its obligations under the Act, then, an employer needs information about the nature of the individual‘s disability and the desired accommodation—information typically possessed only by the individual or her physician. An individual seeking accommodation need not provide medical evidence of her condition in every case: “[A]n employee confined to a wheelchair would hardly need a doctor‘s report to show that she needed help in getting to her workstation if this were accessible only by climbing a steep staircase.” Langon, 959 F.2d at 1058. But “[w]hen the need for an accommodation is not obvious, an employer, before providing a reasonable accom-
To determine the appropriate reasonable accommodation it may be necessary for the [agency] to initiate an informal, interactive process with the 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.
The process contemplated is “a flexible give-and-take” between employer and employee “so that together they can determine what accommodation would enable the employee to continue working.” EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 805 (7th Cir. 2005) (quotation marks omitted); see also Mogenhan, 613 F.3d at 1167-68 & n. 4; Stewart, 589 F.3d at 1308-09. “[N]either party should be able to cause a breakdown in the process for the purpose of either avoiding or inflicting liability.” Sears, 417 F.3d at 805 (quotation marks omitted). Thus, courts should look for signs of failure to participate in good faith or failure by one of the parties to make reasonable efforts to help the other party determine what specific accommodations are necessary. 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. In essence, courts should attempt to isolate the cause of the breakdown and then assign responsibility. Id. (quotation marks omitted); accord Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 312 (3d Cir. 1999). For instance, “when the parties are missing information that can only be provided by one of the parties, the party withholding the information may be found to have obstructed the process.” Jackson v. City of Chi., 414 F.3d 806, 813 (7th Cir. 2005) (quotation marks omitted); accord Stewart, 589 F.3d at 1308-09. In sum, to establish that her request was “denied,” Ward must show either that the BVA in fact ended the interactive process or that it participated in the process in bad faith.
Here, the interactive process broke down before the BVA decided on Ward‘s request and no reasonable juror could have found that the BVA, rather than Ward, was responsible for the breakdown. Ward first asked for an accommodation in March. In April, Ward presented her supervisor with a brief letter from her physician saying little more than that she was receiving treatment for a chronic medical condition that requires daily treatment and would “benefit from a schedule that allows her to work from home.” JA 205. The letter cast doubt on Ward‘s capacity to continue working full-time, however, by stating that “[t]he maximum number of daily work hours will be determined as the condition stabilizes.” JA 205. Accordingly, on May 3, Ward‘s supervisors met with her in person and requested more information about her condition. They repeated the request in writing the same day, setting forth the information needed by the BVA to evaluate Ward‘s “ability to perform the duties of [her] position.” JA 243. Ward produced a letter from another physician in response but it too left doubt about her ability to work full-time by noting that she could not sit for long periods and that her treatments take one to three hours at a time. On May 25 and 31—i.e., within days of receiv-
We addressed similar circumstances in Stewart, in which the plaintiff was a housekeeper at a mental facility whose interactions with the patients caused her own mental health to deteriorate. 589 F.3d at 1306-07. When the plaintiff requested a transfer, a supervisor promptly met with her and told her that he would help her as soon as she completed paperwork documenting her disability. Id. at 1307. She left work that afternoon and never returned. Id. She sued, claiming her employer had denied her a reasonable accommodation but the district court granted the employer‘s motion for judgment as a matter of law. Id. We affirmed because “[n]othing in the evidence presented suggest[ed] that [the supervisor] acted in anything but an entirely appropriate manner” when he met with the plaintiff and requested medical documentation. Id. at 1308-09. In so holding, we cited two cases from our sister circuits that closely resemble Ward‘s case. See id. at 1309 (citing Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1136 (7th Cir. 1996) and Templeton v. Neodata Servs., Inc., 162 F.3d 617, 619 (10th Cir. 1998)).
In Beck, the plaintiff was a secretary who suffered from arthritis, depression and anxiety. 75 F.3d at 1132. Upon returning from medical leave, she asked for an unspecified accommodation for her depression. The employer sought further information from her physician but none was provided. Id. at 1133. The plaintiff took another period of medical leave and again sought an accommodation upon her return. This request was somewhat more specific—it sought an adjustable keyboard for her arthritis and a reduced workload to ease the transition back to work. The request was also accompanied by a letter from her physician. Id. Still uncertain what accommodations were necessary, the employer again sought more detailed information and got none. Id. The employer also took steps to accommodate the plaintiff based on the information it had but was unable to accommodate the plaintiff to her satisfaction. Id. at 1136-37. She sued and the Seventh Circuit affirmed the district court‘s grant of summary judgment to the employer because “[a]t no point did the [employer] fail to respond in some manner
In Templeton, the plaintiff suffered serious head and neck injuries in an automobile accident. 162 F.3d at 618. Her physician sent her employer a letter explaining her condition and expressing uncertainty as to the plaintiff‘s ability to return to work. The employer requested further information from the physician but the plaintiff refused to authorize the information‘s release. Id. The Tenth Circuit affirmed the district court‘s grant of summary judgment to the employer, explaining that “[a]n employer cannot be expected to propose reasonable accommodation absent critical information on the employee‘s medical condition and the limitations it imposes.” Id. at 619. Also in accord is Jackson, in which the Seventh Circuit affirmed the district court‘s grant of summary judgment to the employer because the employer sent the plaintiff several letters asking for more detailed medical information and got only conclusory responses. 414 F.3d at 813-14. By contrast, cases in which our sister circuits have found genuine issues of fact regarding the responsibility for the breakdown of the interactive process typically include evidence that the employer was in some way unresponsive to the plaintiff‘s requests for accommodation. See, e.g., Sears, 417 F.3d at 807-08 (plaintiff “made several requests for accommodations which [the employer] simply denied” and employer, “unlike the defendants in [Beck and Jackson,] . . . did not actively engage in the interactive process by suggesting possible accommodations or requesting information that would help it do so“); Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 952-53 (8th Cir. 1999) (employer did not discuss possible accommodations with employee); Taylor, 184 F.3d at 315-16 (notwithstanding fact that plaintiff‘s son “requested accommodations [for plaintiff], informed [the employer] about [plaintiff‘s] condition, and provided [the employer] with the means to obtain more information if needed,” employer “offered no accommodations or assistance in finding them, made [plaintiff‘s] job more difficult, and simply sat back and continued to document her failures“).
Here, the BVA‘s participation bore all the hallmarks of good faith. Ward‘s supervisors promptly responded to her request for an accommodation, met with her on several occasions to discuss the request and sought more information from her physician to help them determine an appropriate accommodation. Like the plaintiffs in Stewart, Beck, Templeton and Jackson, Ward did not provide the requested information. Instead, she resigned. No reasonable juror could have found that the BVA denied Ward‘s request for an accommodation, then, because Ward abandoned the interactive process before the BVA had the information it needed to determine the appropriate accommodation.5 The dis-
III. Constructive Discharge Claim
Ward contends that she was constructively discharged because the BVA‘s “continued refusal[,] obstruction and delay in accommodating [her] limitations made working conditions so intolerable that any reasonable person with her disability would feel compelled to resign.” Br. of Appellant at 50, Ward v. Shinseki, No. 12-5374 (D.C. Cir. Nov. 13, 2013). A claim of constructive discharge based on disability discrimination “must be predicated on a showing of either intentional discrimination, or retaliation.” Mayers v. Laborers’ Health & Safety Fund of N. Am., 478 F.3d 364, 370 (D.C. Cir. 2007) (quotation marks omitted); see also Johnson v. Shalala, 991 F.2d 126, 131-32 (4th Cir. 1993) (elements of constructive discharge not met by failure to accommodate absent “evidence that the employer intentionally sought to drive [employee] from her position“); cf. Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1558 (D.C. Cir. 1997) (under Title VII of the Civil Rights Act of 1964, “a finding of constructive discharge depends on whether the employer deliberately made working conditions intolerable
For the foregoing reasons, we affirm the district court‘s grant of summary judgment to the VA Secretary.
So ordered.
MILLETT, Circuit Judge, dissenting:
“Everything should be made as simple as possible, but not simpler.”1 And therein lies the critical flaw in the majority opinion‘s analysis. The opinion paints a logically alluring picture: Ella Ward sought an accommodation, but rather than give the Secretary of Veterans Affairs the information needed to provide it, she walked away. How could anyone blame the Secretary for that?
The problem is that the essential predicate for the majority opinion‘s conclusion—that the June 5th letter to Ward from her supervisors sought only information “needed to ‘reasonably accommodate’ ” her, Maj. Op. 33 (emphasis added)—long ago evaporated. The Secretary admits that he did not need the demanded information to accommodate Ward; the letter sought nothing that was tied to the actual demands of her job; and the information demanded was irrelevant to ensuring that her requested flexiplace accommodation was practicable. The factual record, in other words, pulls the legal rug out from under the majority‘s feet. Ward cannot be saddled with legal responsibility for failing to respond to questions her supervisors had no business asking. That is especially so because her increasing inability to properly treat her lymphedema in the office was literally endangering her life, making the delay caused by her supervisors’ unjustified factual detours acutely harmful.2
There are three essential points on which the majority and I part company:
1. THE FLEXIPLACE WORK OPTION NEVER BEFORE REQUIRED A SHOWING OF MEDICAL CONDITION
The majority opinion starts on the wrong track. It assumes that some showing of medical necessity and physical compatibility is a precondition for an employee in the Department of Veterans Affairs to work from home. Not so. As the majority opinion acknowledges, the Department‘s flexiplace program is available to employees “whose job duties and performance records meet certain criteria.” Maj. Op. at 34 n. 5; see also J.A. 807. Ward came forward with evidence that her employment position and her “fully successful” rating qualified her to work at home under the program. J.A. 447. The majority opinion‘s assumed predicate showing of “adequate medical documentation” (Maj. Op. at 35 n. 5) appears nowhere in the program criteria; it never even mentions physical condition.
Nor does the Secretary of Veterans Affairs contend that otherwise-qualified employees have had to make a threshold showing of medical need to enjoy the work-at-home option. At least not for any
The majority opinion responds that normal flexiplace procedures did not entitle Ward to an “immediate[]” grant of her requested accommodation. Maj. Op. at 35 n. 5. No one said they did. The relevant question is whether a jury could find the accommodation process was needlessly prolonged. And, as the majority elsewhere acknowledges, it was after Ward had already spent “three months” (id. at 35 n. 5) meeting her supervisors’ evidentiary inquiries that the June 5th letter demanded that Ward chase down admittedly unneeded information.
2. THE INFORMATION DEMANDED WAS IRRELEVANT
While the majority opinion places dispositive reliance on Ward‘s supervisors’ need in the June 5th letter for more information, it is telling that the opinion never—not even once—says what extra information that letter sought. And that inquiry is what makes all the difference, because the Secretary has since confessed that not one bit of the information he sought was “needed to ‘reasonably accommodate’ ” Ward (Maj. Op. at 33), or has any relevance to any of the essential functions of Ward‘s job. Not one.
The letter demanded that Ward have her physician document: “how many hours, in total, that you are able to work sitting at your desk reviewing case files and drafting decisions during the approved work day, i.e., during a continuous period from 8.5 to 10 hours“; and “whether you are capable of transporting case files and a laptop computer back and forth to work at least once a week, which may weigh, collectively, up to about 45 pounds, and whether you can lift individual cases that may weigh over 25 pounds each, at home.” J.A. 247. The letter thus purported to identify three essential features of Ward‘s job: (i) sitting, rather than standing or alternating positions, for long periods of time, (ii) completing work during a block of time lasting no more than ten hours per day, and (iii) carrying heavy case files in stacks of up to 25 pounds at a time. None of that holds true.
First, it was simply false to assert that Ward‘s job as a lawyer requires that she “sit[] at [he]r desk * * * during a continuous period from 8.5 to 10 hours.” J.A. 247. In his deposition, Ward‘s supervisor and the author of the June 5th letter, Steven Cohn, admitted that “[i]t wasn‘t a question of, can you sit for a period of time; can you stand for a period of time,” since the need is just for employees to “be[] at home and doing the work[;] People at home—I mean, people can proofread and walk around.” J.A. 726-727.
Second, the Secretary undisputedly does not demand that employees in the flexiplace program complete their work within a pre-set, ten-hour window in a given work day. The Department of Veterans Affairs Handbook specifically identifies a “modified work schedule” as a possible accommodation for a disabled employee. J.A. 268. In keeping with that policy, the Secretary has previously allowed a lawyer working from home in the flexiplace program to pick up case files “other than during [her] official duty day,” including “during the workweek or evening, or on the weekend[.]” J.A. 815. And Jonathan Kramer, another of Ward‘s supervisors, admitted in his deposition that a modified work schedule “would suffice as a possible reasonable accommodation for an employee with a disability,” but that he “did not think about” that possibility, J.A. 499-500, notwithstanding Ward‘s request for such flexibility. Thus, the supervisors’ insistence that Ward document her ability to complete her work within a rigid ten-hour block of time was a makeweight.
Third, while the letter insisted that Ward document her physical ability to carry heavy case files, Cohn again gave away the game, admitting the irrelevancy of that demand. Cohn‘s letter itself acknowledged that “the Board can assign a cart for you to use, or you can always ask me or [an]other management official on the team for assistance in transporting any heavy case files.” J.A. 246. That accords with the Board‘s treatment of another of Ward‘s colleagues in the flexiplace program, who was allowed to have her “husband or another individual assist [her] in transporting [work] materials to [her] Alternate Work Station[.]” J.A. 815. What is more, Kramer admitted in his deposition that, at home, Ward could have moved the necessary documents piece by piece, rather than all at once in heavy stacks. See J.A. 493. Weight-lifting, in short, is confessedly not an essential element of Ward‘s lawyer position or required for a reasonable accommodation to work. So when the majority opinion says the supervisors’ demand for proof that Ward “can lift individual cases that may weigh over 25 pounds each, at home” was seeking “precisely the information it needed to ‘reasonably accommodate’ ” her, Maj. Op. at 33, that is just not correct.
The majority opinion points to the requirements for the flexiplace program. Maj. Op. 34-35 n. 5. They prove my point: prolonged sitting and heavy lifting make no appearance. The policy instead lists “[p]osition suitability,” which is undisputed for Ward‘s job; and a jury could reasonably find Ward “reliable, responsible, and able to work independently” given her work record, as a long-term and “fully successful” employee, and her persevering service even with her disabling condition. See id. The majority opinion‘s reference to “adequate medical documentation” submitted by others (id.) is even harder to understand, because, again, not one of those employees was asked about sitting endurance or dead-lifting case files.
If more were needed, the supervisors’ abrupt reversal of course on August 8th provides it. Without having received one bit of the information that the majority opinion deems so essential to granting Ward an accommodation, the Secretary offered Ward the opportunity to “try work-from-home on a full-time basis.” J.A. 261. The Secretary confirmed at oral argument that, in the August 8th letter, the supervisors decided to “try what she‘s asking for.” Oral Arg. Tr. at 18:7-18:8. But the supervisors knew no more in August than they knew in June. If no more information was needed to “try what she‘s asking for” in August, it could not have been “unquestionably relevant” just two months earlier. Presumably, the pointlessness of the June 5th inquiry is why the Board of Veteran Appeals’ Assistant General Counsel advised those supervisors in August that they “should have just offered, at that point, offered the arrangement she requested.” J.A. 769.
To that, the majority opinion simply asserts that “the [Department‘s] offer in the face of litigation cannot be viewed as evidence of pretext.” Maj. Op. 33 n. 4. But this is summary judgment, so the question should not be how appellate judges view the evidence, but whether a reasonable jury could view things differently based on not only the August 8th reversal of course, but also the Department‘s admissions that the information was unneeded and its failure to demand a similar showing from any other employee admitted into the flexiplace program.
Finally, counsel for the Secretary protested at argument that Ward “wasn‘t entitled to get the position,” but that the Secretary offered it anyway because “they liked her, they thought she was a good employee.” Oral. Arg. Tr. at 19:2-19:7. Counsel cannot mean what he said. Surely the Secretary would not expend taxpayer money giving Ward a make-work sinecure. Nor, given her “fully successful” rating and proven ability to perform her job for two months even under the physically onerous conditions of in-office work, J.A. 447, does the record foreclose a reasonable jury from finding that she was a qualified individual with a disability. Instead, counsel could only have meant the Secretary felt legally entitled to delay her accommodation until she ran a gauntlet of intrusive and entirely unnecessary questioning.
3. WARD‘S SUPERVISORS OBSTRUCTED THE ACCOMMODATION PROCESS
Because the Secretary‘s concessions expose the June 5th letter‘s informational demands as a contrivance, the majority opinion‘s discussion (Maj. Op. at 33-34) of case law permitting employers to seek “critical” information that is genuinely “needed” to formulate a reasonable accommodation is quite beside the point. Far from requesting needful information, the Board demanded that Ward have her physician certify to a litany of irrelevancies. And her supervisors did so not in the heat of the moment during a meeting, but after fully considering their position for five days after the May 31st meeting. A reasonable jury thus could find that this case involves supervisors throwing up obstacles to an accommodation that were not applied to other employees and that have no bear-
The majority opinion emphasizes that the employer never failed to respond “in some manner” to Ward. Maj. Op. at 33 (quoting Beck, 75 F.3d at 1136). True. But the accommodation process is not a verbal game of tag in which the last person to say something wins. The point of the interactive process is to exchange the information needed to determine whether a reasonable accommodation of a qualified individual can be made.
In this case, as the majority opinion suggests (Maj. Op. at 33 n. 3), the facts taken in the light most favorable to Ward show that her supervisors cut off the accommodation process at a meeting on May 31st when they laughed at her, humiliated her, and denied her request to work at home full time unless and until Ward met their demands for unneeded information. J.A. 580-581. On that record, a jury could find that the employer‘s demands amounted to stonewalling, and thus that it is the employer that broke down the process. Id. at 580 (Ward: “I‘m trying to get here to do my job. You know I‘m suffering, and * * * you‘re dragging your feet on it.“). And while the majority opinion concludes that the June 5th letter saves the day, Maj. Op. 33 n. 3, that rationale simply cannot survive a review of the letter‘s content and the Secretary‘s admissions.
The costs of such delaying inquiries, moreover, can be dire for some individuals with disabilities, as this case illustrates. Ward‘s lymphedema can be life threatening, and working full time at the office while her supervisors debated giving her the already-established flexiplace option was taking a severe physical toll on Ward. J.A. 195, 600. Insisting, as her supervisors did in that June 5th letter, that she go back to the well for information no one needed before giving her the accommodation was anything but the harmless delay that the majority opinion posits (Maj. Op. at 34-35 n. 5).4
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What actually happened in this case—who is right and who is wrong—is for a jury, not an appellate court, to decide. All that matters at this juncture is that, once the actual content of the June 5th letter and the Secretary‘s admissions are factored in, a reasonable jury could disagree with the majority opinion that Ward‘s supervisors were just seeking “information [they] needed to determine the appropriate accommodation” (Maj. Op. at 34), and could instead find that it was Ward‘s supervisors that obstructed the accommodation process.
For five years, Ward proved herself a hard-working, fully successful attorney for the Department of Veterans Affairs. All she asked for was the same flexiplace program afforded other employees in her position, whether or not they were disabled. Her supervisors’ withholding of that readily available accommodation until she chased down admittedly unneeded infor-