Revocation of Accommodation may be Discriminatory

The U.S. Court of Appeals for the D.C. Circuit recently held that revocation of some job accommodations may be discriminatory. In Woodruff v. Peters, D.C. Cir., No. 05-5033 (4/6/07), the court denied the agency's motion for summary judgment on the issue of whether the supervisor discriminated when he revoked the plaintiff"s accommodation.

The plaintiff suffered a work-related injury which required surgery and a long recovery period. The supervisor at the time allowed the plaintiff to telecommute two days a week to accommodate his recovery. A new supervisor came in though and revoked some of the plaintiff"s accommodations. The court of appeals held that summary judgment was inappropriate. The court found that the plaintiff"s former supervisor, as well as his current boss, allowed the plaintiff to work with the accommodations for months, "casting doubt on the suggestion that the accommodations would impose an undue hardship on the FAA." The agency had allowed other employees to telecommute and described the plaintiff"s position as "mostly self-directed." Thus, the court reversed and remanded the plaintiff's discrimination claim.

The court affirmed summary judgment on the plaintiff"s retaliation claim though. The plaintiff had previously filed a claim against his new supervisor on an unrelated matter. When the plaintiff returned to work from his accident, his new supervisor removed the plaintiff"s supervisory duties. In affirming summary judgment, the court accepted the agency's explanation for removing supervisory duties. The agency argued that the plaintiff"s telecommuting schedule caused him to be unavailable to subordinates during his rest periods. The court concluded that, "positive evidence beyond mere proximity is required to defeat the presumption that the proffered explanations are genuine." The court then stated that, "Even if the finder of fact were to credit all of [the plaintiff's] evidence, there would be no basis for rejecting the presumptive validity of [the agency's] explanations."

This case opens the door for recovery for discriminatory revocations of reasonable accommodations while at the same time declining to extend recovery for reprisal based only on closeness in time. Revoking the accommodation, without evidence of the hardship, may be discriminatory and, in light of this case, may be easier for the employee to prove. The agency will have a more difficult time showing that an accommodation that is already in place is a hardship so long as the accommodation was working. On the other hand, in the context of a reprisal claim, the employee will have to show more of a causal connection between the protected activity and the adverse employment action. Close proximity in time between the protected activity and the adverse action, without more proof, is not enough to overcome an employer's articulated reason for the action.

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