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Lowe v. Independent school District No. 1, No. 08-6231 (10th Cir. Jan. 25, 2010)

| Jan 24, 2010 | Daily Developments in EEO Law |

In a decision recalling last year’s Ekstrand v. school Dist. of Somerset, 583 F.3d 972 (7th Cir. 2009), the Tenth Circuit (in an unpublished opinion) reverses summary judgment and remands an ADA reasonable accommodation and constructive discharge case involving a school teacher who sought but did not receive a suitable classroom.

Lowe v. Independent school District No. 1, No. 08-6231 (10th Cir. Jan. 25, 2010): In Ekstrand, the Seventh Circuit remanded a case for trial involving a school teacher with Seasonal Affective Disorder who requested a classroom with better ventilation or more natural light.  The panel found (with a concurring opinion, dubitante) that the plaintiff presented a genuine issue of material fact whether the employer failed to or refused to carry out an accommodation that was available to it at the time.  (Here’s the write-up from October 6, 2009.)

This case involves a limited-mobility teacher who was being assigned out of a sedentary position as a high school counselor, back into teaching in a science classroom.  Lowe and the head of the science department, Ms. Allen, produced a list of accommodations that Lowe would need to work in a laboratory setting.  But according to the panel opinion, Mr. Bowman, the District’s human resources director, decided that “that no accommodation would be made and that Ms. Lowe should be assigned to a non-laboratory science class.”  On the face of things, this appeared improbable because all science classes in the high school involved labs.

After a period of silence, and two weeks before school was to begin, the district convened a meeting in August 2006 to discuss the proposed accommodations.  At this stage, no classroom assignment had been made to Lowe.  The meeting ended without any decisions being reached, and Lowe resigned two days later.  The district, in the course of the case, contended that it was prepared to place Lowe in a junior-high science class (without labs), but this offer was never conveyed to her.

Although the district court concluded that “the claim failed because it was based only on Ms. Lowe’s speculation as to where she would be assigned when school finally began,” the panel reverses. It holds that the content and tenor of the August 2006 meeting, and the events leading up to it, presented a genuine issue of material fact about whether Lowe’s decision to resign was reasonable under the circumstances:

“Given all the evidence available to Ms. Lowe, much of it coming from defendant’s agents, we think the district court erred in concluding that Ms. Lowe’s view of the situation was based merely on her personal speculation. The fact that, even after the August meeting,  Superintendent Simpson never informed Ms. Lowe that she would not have to teach in Ms. Rhinehart’s classroom justified Ms. Lowe in her belief that she would not be able to resume duties as a classroom science teacher at Guthrie High school. Further, the District’s late-advanced theory that it could have placed Ms. Lowe in a junior high science class was never conveyed to her.

       *       *       *       *

“The pivotal issue is whether Ms. Lowe was told, at any time, that she would either be accommodated to teach the physical science class or that she would not have to teach a lab science class at all. The evidence on this point is contradictory. Ms. Lowe testified that Principal Chadwick told her early on that she would not be accommodated. Accounts of the August meeting, however, reveal a factual dispute on this point.”

The panel also rejects the district court’s ruling that Lowe, as a matter of law, resigned before the school had an opportunity to furnish an accommodation. The panel notes that at some point in the interactive process, an employee might reasonably believe that all efforts have come to an end.  “To the extent the District implies that, had Ms. Lowe not resigned, it would have continued to work with her toward a reasonable accommodation, we note that the existence of a dispute concerning the status of the interactive process raises a genuine issue of material fact as to whether the District failed in its duty to reasonably accommodate Ms. Lowe.”

The panel also finds a genuine issue of material fact for Lowe’s constructive discharge claim, finding that the denial of an accommodation may constitute grounds for resigning.  “We conclude that a genuine issue of material fact exists as to whether a reasonable person, faced with a teaching assignment that will require much standing and moving about, and knowing that such activity will hasten her muscular degeneration and the need for a wheelchair, would have no other choice but to resign.”

Judge O’Brien concurs, but submits a separate opinion setting out a narrower ground for the trial:  whether the junior-high position was real, or a fabrication:

“An employer is not liable for failing to assure an employee reasonable accommodations will be made. The statute imposes liability for ‘not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee . . .’ 42 U.S.C. § 12112(b)(5)(A) (emphasis added). Lowe’s resignation may have short-circuited the process by not giving the school District an adequate time to respond. We cannot know whether a reasonable accommodation would or would not have been forthcoming.

“On the other hand, it could be that the junior high option was concocted, post hoc, as a convenient response to Lowe’s ADA complaint. If it was an option Simpson was actively considering at the time of the August meeting, it was not then communicated to Lowe or anyone else; perhaps with good reason, perhaps not. The record sheds no light.

       *      *      *      *

“This case comes down to whether the school District would have accommodated Lowe’s needs by reassignment to a non-laboratory classroom (as it could have done) had she not resigned in a huff. Since the record does not supply an answer to that question with reasonable certainty this case must be tried.”

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