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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