The First Circuit reminds us in this federal employee case that under the Rehabilitation Act (as well as the ADA), good intentions and lack of animus are not enough when it comes to reasonable accommodations. Promising to make accommodations is not the same as carrying through.
Enica v. Principi, No. 06-2187 (1st Cir. Oct. 6, 2008): The employee — an psychiatric nurse with the Department of Veterans Affairs — suffered from juvenile poliomyelitis, leading to lifetime of mobility problems. So long as she was able to work within her restrictions, she managed her duties.
In 2002, he was informed that she was being transferred to a new crisis stabilization unit. This presented a bit of a crisis for Enica, who sought a meeting about the need for accommodations in the new worksite:
“As a result of the meeting, an agreement was reached to modify Enica’s duties at the CSU. In particular, Enica would not be required to participate in the physical aspect of any crisis intervention, including ‘Code Greens.’ In addition, and although not documented in writing, Enica claims that she was excused from doing anything that she could not do. According to the affidavit submitted by [Assistant Chief of Nursing] McVey, it was expected that because the CSU contained only three beds, the work would be less physically demanding and, therefore, more suitable for Enica.”
In spite of the assurances, Enica ran into trouble with this arrangement at once.
“On her first day she was asked to complete walking rounds throughout the entire hospital. Apparently, because her unit had only one or two patients per week, Enic and the other CSU nurses worked on the medical unit and participated regularly in walking rounds. According to Enica, she tried not to participate in these rounds but ‘got pressure from my supervisors to participate.’ In addition, the nurses in that unit escorted agitated psychiatric patients housed on the inpatient units and provided ‘one on one’ assistance and supervised confused or agitated patients on a rotating schedule every hour. This work entailed walking to different parts of the hospital, and the distances she was required to walk were longer than those in her previous position. Enica estimates that she walked between one and a half and two and a half miles per day while at the CSU. As a result, the pain in Enica’s leg and back worsened, making it difficult for her to perform the walking rounds.”
At one point, the pain from walking became so unendurable that she fell at work and had to take a leave of absence. More discussions (with her lawyer) occurred, and the clinic promised not to work Enica beyond her restrictions and to set her up with a scooter. But on her return from work, more incidents ensued: “On November 6, 2002, the person in charge of the medical unit ordered Enica to physically restrain a patient. Later, on December 19, 2002, she was asked to control a combative patient who was attempting to pull out his IV lines.” Eventually she again went on leave and was eventually transferred to duty that required no walking, lifting, bending or carrying.
Although the district court held that the agency met its reasonable accommodation duties, the First Circuit reversed: “Based on the foregoing, we find that, while it is an extremely close question, a triable issue of fact exists as to whether the VA provided Enica with reasonable accommodations. While the VA certainly took part in the interactive process and made some effort to work with Enica, as the district court correctly pointed out, it is less than clear that it provided Enica with reasonable accommodations.”
The panel doubted based on the summary judgment record that the agency ever meant to carry out its proposed accommodations:
“The VA submits that it made the decision to transfer Enica to the CSU based on the belief that working in a small unit with only three beds would be less physically demanding than her current position. Elsewhere in the record, however, the VA concedes that because the CSU saw only one or two patients a week, it would ask its nurses, including Enica, to perform walking rounds in other medical units. This admission, the physical distance separating the units and fact that Enica was required to engage in walking rounds on the first day she reported for duty, combine to cast into doubt whether the VA made any effort, or had any intention, to implement the accommodation to which they had agreed a few days prior.”
Summary judgment on plaintiff’s several other claims (Title VII, retaliation and a separate Rehabilitation Act incident) was affirmed.