Kvorjak v. Maine, State of

United States Court of Appeals
For the First Circuit

No. 00-2385

BRIAN KVORJAK,

Plaintiff, Appellant,

v.

STATE OF MAINE, STATE OF MAINE DEPARTMENT OF LABOR,
AND VALERIE R. LANDRY, COMMISSIONER OF THE STATE OF MAINE
DEPARTMENT OF LABOR,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Lynch, Circuit Judge,
Coffin, Senior Circuit Judge,
and Schwarzer, Senior District Judge.*

Daniel W. Bates for appellant.
Christopher C. Taub, Assistant Attorney General, with whom
G. Steven Rowe, Attorney General, and Susan P. Herman, Assistant
Attorney General, were on brief for appellees.

*Of the Northern District of California, sitting by
designation.
 August 9, 2001

COFFIN, Senior Circuit Judge. Appellant Brian Kvorjak

claims that his former employer, the Maine Department of Labor,

wrongfully failed to accommodate his disability when it refused

to allow him to work at home after his office closed and his

position was relocated to a distant facility. The district

court granted summary judgment for the defendants on his federal

and state claims,1 concluding that he had failed to offer

1 Appellant brought suit under the Americans with
Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213, the
Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Maine Human
Rights Act ("MHRA"), 5 M.R.S.A. §§ 4551-4633. The Supreme Court
ruled earlier this year that the Eleventh Amendment immunizes
states from claims for money damages under Title I of the ADA.
See Bd. of Trs. of the Univ. of Ala. v. Garrett, 121 S. Ct. 955,
967-68 (2001); Acevedo Lopez v. Police Dep't of Com. of P.R.,
247 F.3d 26, 28 (lst Cir. 2001). This case remains viable under
both the MHRA and the Rehabilitation Act, however, and the
standards applicable to each of the three statutes have been
viewed as essentially the same. See Oliveras-Sifre v. P.R.
Dep't of Health, 214 F.3d 23, 25 n.2 (lst Cir. 2000); Feliciano
v. State of Rhode Island, 160 F.3d 780, 788-89 (lst Cir. 1998);
Soileau v. Guilford of Maine, Inc., 928 F. Supp. 37, 45 (D. Me.
1996), aff'd, 105 F.3d 12, 14 (lst Cir. 1997). Thus, while we
explicitly refer to the ADA because it has been the primary
focus in the litigation to this point, and because of the
applicability of its accompanying body of recent case law, our
discussion here in fact applies solely to the Rehabilitation Act
and MHRA claims.
Similarly for the sake of simplicity, we generally refer to
defendants collectively as "the State," although in addition to
the State itself, appellant sued the Maine Department of Labor,
and the department's commissioner, Valerie Landry.

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evidence sufficient to demonstrate that he could accomplish

"essential" aspects of his job at home. See 42 U.S.C. §

12111(8). After a close review of the record and caselaw, we

affirm.

I. Factual Background2

Appellant is partially paralyzed as a result of spina

bifida, a condition he has had since birth. The condition

limits his ability to walk, causes problems with his bowels and

bladder, and at times triggers pain when he sits, stands or lies

down. Despite these difficulties, appellant successfully worked

for various state agencies in Maine for twenty-two years, the

last seven and one-half as a claims adjudicator for the

Department of Labor's Division of Unemployment Field Services

(the "Division"). In that most recent position, he was assigned

to an office in Rockland, Maine, a ten-minute commute from his

home.

In the mid-1990s, the Division decided to cut expenses by

closing fifteen field offices, including the Rockland office,

and shifting services to three call centers in other parts of

2
Portions of this background are drawn almost verbatim from
the well stated "Facts" section of the magistrate judge's
opinion.

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the state. To assist with the transfer, the Division sent out

two surveys asking employees if they would consider relocating

to a call center. In both surveys, appellant indicated that he

would be able to work in a call center and listed Bangor as his

primary choice.

Before the transfer in 1997, however, appellant drove the

ninety-minute commute from his home to Bangor on two consecutive

days. The lengthy drive resulted in substantial pain.

Realizing that he could not commute three hours every day, he

applied for a disability pension and asked that he be permitted

to use his accumulated sick time until his pension request was

processed. The State denied his request to use sick time, and

appellant contacted the Disability Rights Center (the "Center").

After consultation with the Center, appellant in May 1997

requested the accommodation of working at home on a full-time,

permanent basis.3 He supplemented his request with a letter from

his physician stating that the commute to Bangor every day would

have a detrimental impact on his health. The doctor also stated

that "any effort that can be made to allow him to work locally

would be highly appropriate and medically indicated."

3 Appellant initially wrote to the Department of Labor that,
in addition to working at home, he was "willing to consider any
reasonable accommodations which will result in my continued
employment," but the record reflects that he later rejected any
option other than at-home work. See infra note 9.

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 The Division rejected appellant's request, stating that the

Department of Labor had checked with the New England Business

and Technical Assistance Center and the Equal Employment

Opportunity Commission and had "concluded that commuting to the

job is not a covered activity under [the] ADA." It noted that

it had received other requests from Division employees to work

at home because of the office consolidation, and had denied all

of them. The State, however, did offer to pay relocation costs

if appellant moved closer to a call center, a benefit provided

to all re-assigned employees, and also offered to pay for

temporary housing.4 Appellant declined to move, and he was laid

off on June 18, 1997. That same day, Kathleen Dunford, director

of the Office of Human Resources for the Department, offered in

a telephone conversation to assist him in finding another local

job.

In October 1997, the State notified appellant of a job

opening in Bangor for a claims adjudicator — the same position

he had left four months earlier. Appellant expressed interest,

but again requested the accommodation of working at home. The

4
The State also was prepared to help arrange for support
services during appellant's relocation, although it is not clear
that this offer was communicated to him. In his deposition, he
said he was unaware of an offer for relocation assistance beyond
that received by other employees. The offer for temporary
housing, however, was explicitly noted in a memorandum to an
investigator for the Maine Human Rights Commission ("MHRC").

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request again was denied. Appellant subsequently filed

complaints with the MHRC challenging both the original layoff

and the later failure to re-hire him. The State continued to

maintain that it had no obligation to ameliorate appellant's

commuting difficulties; in its view, he was no different from

non-disabled employees who sought the same accommodation of

working at home because of the inconvenience of relocating. See

5 M.R.S.A. § 4573-A ("This subchapter does not prohibit an

employer from discharging . . . an individual with physical or

mental disability . . . if the individual, because of the

physical or mental disability, is unable to . . . be at, remain

at or go to or from the place where the duties of employment are

to be performed."). The MHRC investigator, however, without

determining whether appellant could perform the essential

functions of the job at home (relying on a supervisor's

statement that the job could be restructured if the law

required), found reasonable grounds to believe that appellant

had been subjected to unlawful disability discrimination.

Appellant filed his lawsuit in June 1999, asserting that the

State's rejection of his request to work at home violated

federal and state disability laws. In a motion for summary

judgment, the State argued that it was not obliged to

accommodate appellant because his request to work at home

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stemmed not from his disability but from a personal preference

against moving, and it emphasized that appellant could not in

any event perform the essential functions of the claims

adjudicator position at home. The district court accepted the

magistrate judge's recommendation that summary judgment be

granted for defendants, and this appeal followed. We review the

district court's decision de novo, assessing the facts in the

light most favorable to appellant, the nonmoving party. Reed v.

LePage Bakeries, Inc., 244 F.3d 254, 257 (lst Cir. 2001).

II. The Interactive Process

Before delving into the substance of the accommodation

issue, we address appellant's contention that the State violated

the ADA by failing to utilize an informal, interactive process

to make an individualized assessment of his needs and abilities.

The statute's implementing regulations state that it "may" be

necessary for an employer to initiate a dialogue with an

employee in order to determine an appropriate accommodation.

See 29 C.F.R. § 1630.2(o)(3). Courts have construed the

regulation as imposing various levels of obligation. See

Barnett v. United States, 228 F.3d 1105, 1111-14 (9th Cir. 2000)

(en banc) (citing cases), petition for cert. granted in part sub

nom US Airways v. Barnett, 69 U.S.L.W. 3665 (U.S. Apr. 16, 2001)

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(No. 00-1250).5 Even in the most rigorous version, however, such

as the Ninth Circuit's "mandatory obligation" in all cases, see

Humphrey v. Mem. Hosps. Ass'n, 239 F.3d 1128, 1137 (9th Cir.

2001), petition for cert. filed, 69 U.S.L.W. 3792 (U.S. June 13,

2001) (No. 00-1860), liability nonetheless depends on a finding

that, had a good faith interactive process occurred, the parties

could have found a reasonable accommodation that would enable

the disabled person to perform the job's essential functions,

see Humphrey, 239 F.3d at 1139; Barnett, 228 F.3d at 1115-16.

This court has not taken so categorical a stand on the

interactive process, preferring instead to resolve the issue on

a case-by-case basis. See Phelps v. Optima Health, Inc., 251

F.3d 21, 27 (lst Cir. 2001); Ward v. Mass. Health Research

Inst., Inc., 209 F.3d 29, 33 n.4 (lst Cir. 2000); Jacques v.

Clean-Up Group, Inc., 96 F.3d 506, 515 (lst Cir. 1996).

Although we have noted that there may be situations in which

failure to engage in the process "would constitute a failure to

provide reasonable accommodation that amounts to a violation of

the ADA," Jacques, 96 F.3d at 515; see also Garcia-Ayala v.

Lederle Parenterals, Inc., 212 F.3d 638, 648 n.12 (lst Cir.

5 The Court granted certiorari to consider whether the ADA
requires an employer to disregard its seniority system in
reassigning a disabled employee who is seeking a reasonable
accommodation.

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2000) (reversing summary judgment for employer and granting

judgment for employee where company had "simply rejected the

request for the accommodation without further discussion," but

not deciding the interactive process issue), we also consider

such an omission "of no moment" if the record forecloses a

finding that the plaintiff could perform the duties of the job,

with or without reasonable accommodation, see Soto-Ocasio v.

Fed. Exp. Corp., 150 F.3d 14, 19 (lst Cir. 1998).

This being the status of the law, appellant has failed to

demonstrate an actionable failure to engage in interactive

communication. As we explain in the following section, the

record cannot support a finding that he is able to perform the

essential functions of the claims adjudicator position at his

home. In addition, we do not view the circumstances here to

constitute the extreme failure to engage in meaningful dialogue

that appellant attempts to depict. When appellant asked to work

at home because of the new commuting distance, the State had no

reason to suspect that his disability also posed issues related

to office work. He had been performing the claims adjudicator

position at the Rockland office with little or no accommodation

for more than seven years,6 and, indeed, the doctor who submitted

6 Appellant stated that he never requested any
accommodation, while the State maintains that it allowed him to
take more than the standard number of breaks during the day.

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a letter of support for his request saw "[no] problem with him

engaging in the type of activities he has been doing . . . ."7

In a setting of institutional change, with requests to work

at home from other employees also seeking to avoid the commute,

and after inquiry into statutory requirements,8 the State's

decision to reject an accommodation based on appellant's commute

does not demonstrate a disregard for its obligations under the

ADA. It is unsurprising that state officials would out-of-hand

reject such an accommodation if it were not required by the ADA,

out of a legitimate concern that allowing him such an

arrangement would set a precedent for other employees.

Moreover, the State did communicate with appellant, making

efforts to accommodate his disability with offers to help him

both relocate and search for a new job in the Rockland area. In

addition, after the MHRC's adverse finding in December 1998, the

Department of Labor offered him a job in an office in Rockland.

By that time, however, appellant felt he could no longer work in

7
Another of appellant's doctors, Stephan Bamberger,
testified in his deposition in November 1999 that there was no
medical reason why he could not move to Bangor.
8
We do not address here whether the advice given to the
State – that the ADA does not cover commuting issues – was
correct.

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an office,9 reflecting a shift in his focus from the single issue

of his inability to commute to the additional problems presented

by office work. The State, however, also had gone beyond the

issue of the commute to assert that the essential functions of

appellant's job could not be performed at his home.

This is not to say that the State's behavior was ideal. A

face-to-face discussion might have allowed a more complete

understanding of the needs and issues on both sides and avoided

appellant's understandable sense of frustration and ill

treatment. 10 Appellant, too, however, must bear some

responsibility for inadequate communication. His counsel at

oral argument made clear that his exceptional job performance

for at least a portion of his tenure as a claims adjudicator was

9 In his deposition, he stated that he learned from a
medical consultation that continued full-time office work would
accelerate his physical deterioration. It was at that time, he
said, "when I made the firm determination that I would not work
again unless it was in the home." Dr. Stephan Bamberger
testified in deposition that a ten-minute commute – as appellant
had had in Rockland – would not significantly affect the
longevity of his working life, but that working in an office
would pose difficulties because of his pain and incontinence.

10 For example, the State raised concerns about
confidentiality and expense related to at-home work, but did not
fully explore them with appellant or his counsel. Similarly,
the State internally concluded before rejecting appellant's
request to work at home that the essential functions of a claims
adjudicator could not be performed at home, but it did not
address that issue in its communications with appellant or his
counsel until much later.

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not without significant physical sacrifices. Yet, so far as the

record shows, the State had no reason to know of the

extraordinary measures he had been taking to minimize the

difficulties of working at the Rockland office. See Reed, 244

F.3d at 261 (employee's request for accommodation must be

"'sufficiently direct and specific'" to provide employer with

notice of disability-based need); EEOC Interpretive Guidance, 29

C.F.R. Pt. 1630, app. at § 1630.9 ("In general, . . . it is the

responsibility of the individual with a disability to inform the

employer that an accommodation is needed.").11 Had the State

understood at the outset that appellant's need for accommodation

was not, in fact, limited to commuting, there is no reason to

doubt that the interaction would have progressed differently.

In sum, the circumstances here do not show an egregious

failure to engage in the interactive process. We now turn to

consider whether the law required the State to provide appellant

the accommodation of working at home.

III. Essential Functions and Reasonable Accommodation

To obtain relief under the ADA, a plaintiff must demonstrate

that:

11
We recognize that at least some of appellant's silence
stemmed from a desire to retain a level of privacy concerning
his physical difficulties. An employer, however, cannot be held
responsible for knowing information about a disability that an
employee deliberately chooses to withhold.

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 (1) he was disabled within the meaning of the Act; (2)
he was a qualified individual, i.e. able to perform
the essential functions of the position with or
without reasonable accommodation; and (3) he was
discharged because of his disability.

Ward, 209 F.3d at 33. The State concedes that appellant meets

the statutory definition of disability. The dispute centers on

the second inquiry, whether he was a qualified individual under

the ADA.12 The particular question we face here is whether

appellant can "perform the essential functions of the position"

if given the accommodation he seeks, working at home. The

district court concluded as a matter of law that he could not,

based on the State's evidence that several important functions

performed by claims adjudicators could not be accomplished in

appellant's home. Appellant contends that the State both

underestimates what reasonably can be done in a home setting and

improperly characterizes as "essential" certain functions that

require an office setting.

We recently have confirmed that the plaintiff bears the

burden of proposing an accommodation that would enable him to

perform his job effectively and is, at least on the face of

things, reasonable. Phelps, 251 F.3d at 26; Reed, 244 F.3d at

258. This necessarily entails a showing that the accommodation

12
Because we conclude that appellant fails to establish
that he is a qualified individual, we, like the district court,
do not reach the third element of the prima facie case.

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"would effectively enable [him] to perform [his] job," Reed, 244

F.3d at 259. As a starting point, therefore, appellant must

offer evidence that he can perform the essential functions of a

claims adjudicator at home. This turns out to be both the

beginning and the end of our analysis.

An "essential function" is a fundamental job duty of the

position at issue. See Ward, 209 F.3d at 34; 29 C.F.R. §

1630.2(n)(1). The term does not include "marginal" tasks, but

may encompass "individual or idiosyncratic characteristics" of

the job, Ward, 209 F.3d at 34 (quoting Laurin v. Providence

Hosp., 150 F.3d 52, 56-57, 59 n.6 (lst Cir. 1998)). In the

absence of evidence of discriminatory animus, courts generally

give "substantial weight" to the employer's judgment as to what

functions are essential. Id.; see also 42 U.S.C. § 12111(8).

Other evidence also is relevant, including: "written job

descriptions, consequences of not requiring the function, work

experience of past incumbents, and work experience of current

incumbents." Ward, 209 F.3d at 34 (citing 29 C.F.R. §

1630.2(n)(3)).

The record contains both a "Task Statement" for the claims

adjudicator position at a processing center and a list labeled

"Essential Functions of a Claims Adjudicator," the latter of

which is simply a shortened version of the former. The task

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statement contains nine items, and six of them are identified as

essential functions in the other document. The first three

"essential" tasks generally describe the job of adjudicating

claims - what we shall call the "adjudicator function"13 — and

the other three involve the provision of information and

guidance to a variety of individuals both inside and outside the

Division – in our shorthand, the "advisor function."14

13 These three tasks are:

1. Interview claimants, employers, and witnesses by
telephone to obtain relevant facts in order to
determine a claimant's eligibility for compensation
and which employer account, if any, is to be charged.

2. Writes clear and concise decisions in order to
enable interested parties to determine the basis for
unemployment compensation benefits determination and
which employer account, if any, will be charged.

3. Enters decisions and related data into p.c. in
order to produce a written record of the decision.
14 These three duties are:

4. Explains laws, regulations, commission rules,
precedents, and department policies regarding
eligibility, disqualifications and appeals to
claimants, employers, and the general public in order
to provide information on the program.

5. Discusses disposition of the claim with claimants,
employers, and/or their authorized representatives in
order to provide information on the basis for the
determination and on the process of initiation of an
appeal.

6. Assists claims specialists and employment security
aides in functions of their respective classifications

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 Appellant focuses on the adjudicator function and maintains

that there is at least a factual dispute as to whether it can be

performed by him at his home. He plausibly contends that he

could conduct interviews by telephone at home, write decisions,

and enter all necessary data into a personal computer. Although

the State has raised concerns about the confidentiality of

records that might be needed in the decision-making process, its

counsel acknowledged at oral argument that that concern perhaps

could be met if it were the only obstacle. Indeed, it appears

that other Department of Labor decision-makers routinely work at

home with confidential documents, albeit not on a full time

basis. Moreover, there is no evidence that the benefits

decisions must be made on extremely tight deadlines, and gaining

access to records kept at the office or within the Division's

secure computer system would thus seem logistically feasible.15

which relates [sic] to adjudication activities.
15 On the other hand, the State maintains that such research
would be difficult for an at-home employee to manage without
imposing an undue burden on employees at the office because it
requires physical access to paper files, as well as access to
the unemployment insurance database. An at-home employee thus
would have to rely on others to find, copy, and mail needed
documents. As of December 1999, the Division's call centers
were supported by only two clerical staff people. Laura Boyett,
director of the Division, reported in an affidavit that both
individuals are "fully occupied with their present duties and do
not have time to take on additional duties." See 42 U.S.C. §
12112(b)(5)(A) (an employer need not provide an accommodation
that would impose "an undue hardship").

-16-
 Although adjudicating claims may be the core function of

appellant's former position — hence its "claims adjudicator"

title — the advisor function looms large in both the written

task statement and the testimonial evidence presented by the

State. In a lengthy affidavit, Boyett described the transition

of the Division's services from decentralized field offices,

such as the one in which appellant worked in Rockland, to the

"call center model," which consolidated the Division's

operations in three offices serving a statewide clientele. In

the call center system, unemployment claims are submitted via

telephone and routed automatically to one of the three centers

in a manner intended to equalize workloads among the locations.

Claims adjudicators are "the most senior, non-supervisory

technical resource" at the call centers, and one function

resulting from that experienced status is to serve as

"Adjudicator of the Day" approximately once a week. Boyett

explained the role as follows:

Adjudicators of the Day are the primary people
responsible for trouble-shooting and problem
resolution for that day. Their names are posted in
visible locations within the call centers so that
claims staff know who to go to with questions and
problems. They remain accessible so that they can
help other employees at the other employees'
workstations if needed. For example, claims
adjudicators might help another employee conduct
research on the computer database, plug into an
employee's telephone to assist with a telephone call,
or take a portion of a call at their own workstation

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 to resolve a problem before transferring the call back
to the other employee or terminating the call.

Boyett further stated that, since the change to call centers,

claims adjudicators have more often served as a technical

resource for other employees because the number of supervisors

was reduced from seventeen to six statewide, making them less

available for individual questions. Although some of this

assistance could be provided by phone, "it is primarily provided

in person because it usually requires jointly reviewing written

materials, including forms, documents, law sections, primary

commission cases and claim cards." Claims adjudicators also

participate in the technical training of claims staff at the

call centers.16

In essence, Boyett's affidavit depicts claims adjudicators

as key players on a team whose function is to provide

information and assistance to the public in utilizing the

unemployment insurance system. The system often relies on on-

the-spot collaborative efforts among the call center's various

employees, and claims adjudicators are particularly vital

16 Boyett stated that "[t]he call center environment
provides an ability to offer staff training more frequently
because each center has the capability of covering for another
center while training is taking place. Staff training is now
given high priority because one of the goals of the call center
transition is to improve consistency in procedures and
application of law throughout the state."

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participants because of their high level of technical skill.

See 29 C.F.R. § 1630.2(n)(2)(ii) (a job function may be

considered essential "because of the limited number of employees

available among whom the performance of that job function can be

distributed"). The State's position is that, by definition, the

advisor function includes training and joint problem-solving

that could not be accomplished effectively by a claims

adjudicator based outside of the call center. See EEOC

Enforcement Guidance: Reasonable Accommodation and Undue

Hardship Under the Americans with Disabilities Act, 1999 WL

33103142, at *34 n.93 (March 1, 1999) ("Courts that have

rejected working at home as a reasonable accommodation focus on

evidence that personal contact, interaction, and coordination

are needed for a specific position.") (citing cases).17

In response to the State's evidence that the advisor

function is an "essential" part of a claims adjudicator's job,

17
We have focused on the claims adjudicator's duties as
advisor to other call center staff because that role, by itself,
demonstrates that the position cannot be performed at home.
Other aspects of the advisor function – specifically, providing
explanations and information to the public and to those using
the unemployment compensation system – might be feasible in a
home if the technology cost were not prohibitive. There is much
discussion in the record about the possibility of connecting
appellant's home phone to the Division's call center, but we
need not explore that issue because of our conclusion that the
record otherwise unequivocally proves that a claims adjudicator
must work at the center to perform essential aspects of the
advisor function.

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appellant offers no specific facts showing that this role either

is not essential or could be performed by him at home. He

emphasizes a statement made by Gail Thayer, director of the

Bureau of Unemployment Compensation (which includes the

Division), that "if the law requires it, the [State] could

restructure Mr. Kvorjak's job to enable him to work at home."

Thayer did not state, however, that the resulting position would

include all of a claims adjudicator's essential functions, and,

indeed, she testified at her deposition that she did not, in

fact, envision that such a restructuring would retain all of the

important elements of appellant's job. The law does not require

an employer to "accommodate a disability by foregoing an

essential function of the position or by reallocating essential

functions to make other workers' jobs more onerous." Feliciano,

160 F.3d at 785; see also Phelps, 251 F.3d at 26; Laurin, 150

F.3d at 56, 60.

Appellant's other contentions regarding the State's evidence

are no more forceful. He complains that numerous functions

listed as essential in the State's summary judgment materials

were both new to the case and peripheral to the claims

adjudicator's job, and their legitimacy must be resolved by a

factfinder. The simple response to the tardiness claim is that

the advisor role derives directly from the list of duties in the

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Task Statement,18 which was used as an exhibit before the MHRC.

Although the Boyett affidavit spells out in detail for the first

time the many ways in which a claims adjudicator is expected to

perform the advisor function, the possibility that a particular

advisory task is unimportant or reasonably could be performed at

an individual's home does not undermine the State's position

that the claims adjudicator's in-office role as

educator/trainer/advisor is essential.

Appellant offers no evidence suggesting that, despite the

written task statement and the departmental expectations

outlined in the Boyett affidavit, the advisor function in

actuality comprises an insignificant portion of a claims

adjudicator's job. His own knowledge of the position is limited

to his experience working in a field office and thus provides an

insufficient basis to rebut Boyett's assertion that the advisor

function became more important after the consolidation of

18
Item 6 on the list of essential functions, see note 14
supra, refers to the assistance provided by claims adjudicators
to other claims staff members. This item embraces most of the
supervisory and educational tasks that Boyett attributed to
claims adjudicators.

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services in call centers. 19 Appellant could have, but did not,

depose current claims adjudicators about their duties.

Finally, appellant tries to make much of the fact that two

Department of Labor employees have been permitted to work at

home. The evidence shows significantly distinguishable

circumstances: (1) the employees, who both experienced allergic-

type reactions to substances in their office building, are being

permitted to work at home only until the Department is able to

construct a "clean room" at the workplace; and (2) neither is a

claims adjudicator — one's job is to organize files and the

other is a tax specialist whose primary duty is to call

employers who owe unemployment taxes. The fact that these

employees work at home lends no support to appellant's

contention that he could perform the essential functions of a

claims adjudicator at home.

IV. Conclusion

The record demonstrates without meaningful dispute that the

essential functions of a claims adjudicator cannot be performed

at an individual employee's home. We therefore affirm the grant

of summary judgment for defendants.

19 In his answers to defendants' interrogatories, appellant
acknowledged that even at the field office he would "cover for
other workers by performing the duties of a receptionist and
covered for my boss and others, etc."

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Affirmed.

Dissent follows.

-23-
 Schwarzer, Senior District Judge, dissenting:

I respectfully dissent. The problem with this case is

that the State had made up its mind to reject Kvorjak’s request

to work at home without even considering whether a reasonable

accommodation could be worked out. Thus, in responding to his

initial request, the State rejected it on the ground that

“commuting to the job is not a covered activity under ADA.”

It did not consider any of Kvorjak’s medical information

(nor did it request any), and it did not conduct a cost

assessment of his working from home. Instead, the State advised

Kvorjak’s counsel that it was not interested in having him work

at home, and it is clear from the record that no accommodation

was ever considered. Until the commencement of the litigation,

the State adhered to this initial position. It was only when

the State filed its motion for summary judgment that it

presented, by way of the affidavit of Laura Boyett, a litany of

reasons why Kvorjak would not be able to perform the essential

functions of his job at home. This court has said that “[a]n

employee’s request for a reasonable accommodation requires a

great deal of communication between the employee and employer .

. . both parties bear responsibility for determining what

accommodation is necessary.” Criado v. IBM Corp., 145 F.3d 437,

444 (1st Cir. 1998) (quoting Bultemeyer v. Fort Wayne Cmty.

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Sch., 100 F.3d 1281, 1285 (7th Cir. 1996)); see also Garcia-

Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 648 n.12 (1st

Cir. 2000). Here there was essentially none.

This is not a case in which the omission of such

communication can be said to be of no moment. Cf. Soto-Casio v.

Fed. Express Corp., 150 F.3d 14, 19 (1st Cir. 1998). The State

does have a duty to “mak[e] reasonable accommodations . . .

unless [it] can demonstrate that the accommodation would impose

an undue hardship on the operation of [its] business.” 42

U.S.C. § 12112(b)(5)(A). Kvorjak’s supervisor’s testimony on

deposition, that if the law required his job could be

restructured to enable him to work at home and confidentiality

concerns and connections with the call center could be resolved,

raises a triable issue. Moreover, the State’s adamant refusal

from the outset to consider and discuss accommodation raises a

triable issue as to whether it complied with its obligation

under the ADA. What the State did here is precisely what the

employer did in Garcia-Ayala: “It simply rejected the request

for the accommodation without further discussion and it did so

without pointing to any facts making the accommodation harmful

to its business needs.” Garcia-Ayala, 212 F.3d at 648 n.12.

This “may well be [a] situation[] in which the employer’s

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failure to engage in an informal interactive process would

constitute a failure to provide reasonable accommodation that

amounts to a violation of the ADA.” Jacques v. Clean-Up Group,

Inc., 96 F.3d 506, 515 (1st Cir. 1996).1

I would reverse and remand for trial.

1I note parenthetically that the request to work at home
cannot be regarded as outlandish. See Langon v. Dep’t of Health
and Human Servs., 959 F.2d 1053, 1060 (D.C. Cir. 1992) (holding
that agency must consider accommodating a computer programmer
with multiple sclerosis by allowing her to work at home); see
also Carr v. Reno, 23 F.3d 525, 530 (D.C. Cir. 1994).

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