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SlingshotPerson was signed in when posted
09:31 PM ET (US)
U.S. Department of Education Prevails In Case Where Employee's Disability Discrimination Charge Was Not the "But-For" Cause of the Department's Denial of an Official Accommodation

The U.S. Department of Education has prevailed in a case where a federal district court ruled that an employee's disability discrimination charge was not the "but-for" cause of the department's denial of an official accommodation.

In this case, the employee began working for the U.S. Department of Education in April of 1989. The employee alleges that he suffers from chronic pain, narcolepsy, and Post Traumatic Stress Disorder (PTSD), and that the department was aware of these disabilities when it hired him, and treated him as being handicapped by providing him with reasonable accommodation from approximately April 1, 1989 through November 22, 2004. At some point prior to October 1998, the employee took leave for some undisclosed reason, but subsequently engaged in "return-to-work" discussions with the department from October to December 1998. In December 1998, the employee returned to work pursuant to an agreement.

Several years later, in July and August of 2004, the employee alleges he disclosed some internal employee fraud to the Chief Financial Office and the Inspector General. In November 2004, the employee's supervisor notified the employee that the reasonable accommodations he had been provided would no longer be provided, prompting the employee to file a formal EEO complaint. The employee alleged that thereafter, it was increasingly difficult for him to secure a reasonable accommodation for his disabilities. The employee filed a formal complaint in March 2005, but that complaint ultimately was found to be without merit.

In September 2006, the employee sent an email to his then-current supervisor asking her for a reasonable accommodation, attaching medical documents that were between 9 and 16 years old, along with prior requests for reasonable accommodations that he had just located. Two weeks later, his supervisor replied that she was unable to locate any records granting him a reasonable accommodation. She stated that the department would consider his request for a reasonable accommodation upon receipt of updated, "i.e., last three months," medical documentation. The employee responded, among other things, that prior agency officials had determined he required a reasonable accommodation, that she had no right to revoke that accommodation, and that he had previously responded to requests for medical records.

The supervisor replied by stating that she had no record of an agency determination that the employee qualified for a reasonable accommodation and that without up-to-date medical information, she would not provide him with a reasonable accommodation. The record showed that the employee never submitted current medical documentation, as requested. The department provided evidence that no other employee under the new supervisor was granted a reasonable accommodation without medical documentation.

Nonetheless, the new supervisor authorized the employee to be given a private office and to be permitted to work at home on an "as needed" flex schedule, as a matter of "administrative discretion." Despite the work adjustments, the employee persisted with his claim that the department retaliated against him in violation of the Rehabilitation Act, and his case ended up before the District of Columbia federal district court.

In last month's decision, the D.C. federal district court explained that it is undisputed that the employee engaged in protected activity when he filed a formal complaint in March 2005 alleging disability discrimination arising from the department's refusal to continue existing accommodations for his disabilities. It is also undisputed, the court stated, that from 2005 to 2010, during his current supervisor's tenure, the department (1) did not provide the accommodations allegedly authorized by his previous supervisor; (2) asked the employee to submit current medical documentation as a precondition to processing a new accommodation request; and (3) declined to process or approve the employee's accommodation request in the absence of such information. The court went on to say that despite her demands for current medical documentation, the new supervisor authorized requested adjustments to the employee's working conditions as an matter of administrative discretion.

Thus, the court stated, the pending question in the case is whether the department made it more difficult for the employee to obtain a reasonable accommodation of his disability solely because he filed a discrimination charge in March 2005, before his current supervisor came on board.

Based on the evidence, the court found an insufficient connection between the March 2005 discrimination charge and the new supervisor's request for current medical documentation. The court explained that the new supervisor wanted to formalize the employee's situation - obtain up-to-date medical information, consider accommodations, and put it all in writing.

Thus, to prevail in this case - where the department filed a motion for summary judgment - the court stated that the employee must proffer specific facts showing that a genuine issue exists for trial. Here, the court concluded, the employee offered no specific facts to support his burden of persuasion that his engagement in protected activity in March 2005 was the "but-for" reason the department refused an official accommodation, rather than his own failure to provide current medical documentation as a precondition to a reasonable accommodation.

Accordingly, the court granted the department's motion for summary judgment.

The case is Gard v. U.S. Department of Education, U.S. District Court for the District of Columbia, Civil Action No. 07-2303 (RMC), November 23, 2010
Very Sad scenerio
11:53 PM ET (US)

I just hope that she will not be discouraged in life with this decision. She is young and can use this circumstance to encourage others, I hope she sees this. :(
Advice and interpretation
07:10 PM ET (US)
A must read!
11:10 PM ET (US)
You have to read this case. It is a Precedential opinion addressing the "mailbox rule" http://www2.ca3.uscourts.gov/opinarch/131843p.pdf
11:35 PM ET (US)
It is actually the first $15. But because I couldn't access my own documents that I needed, i had to do it over and over again and am to close to the limit. Also, i would have to go online on my regular computer to get it, in order to pull it up, at which point I would be allowing access to my documents which have previously been tampered with. I was hoping it was just my computer that was unable to get the case, and hoped that someone could pull it up on. Theirs, without having to go into the case directly, but I guess I was wrong! :(
SlingshotPerson was signed in when posted
11:21 PM ET (US)
Go to pacer.gov and sign up. This is a pay for pages site but you get the first 10.50 worth of pages for free. If you spend wisely, you will rarely go over the 10 bucks
11:04 PM ET (US)
Yes. I need the March 8, 2012 District a Court decision.
SlingshotPerson was signed in when posted
10:11 PM ET (US)
You need the district court decision?
09:33 PM ET (US)
This is part of the case:

Jacobs began working for GSA in June 1990 and Vrobel served as her supervisor from 1995 through 2010. Compl. 4–5 (Joint Appendix (JA) 2). Jacobs originally worked in another position but in 1999 GSA promoted her to “a Contract Specialist position ․ as a result of a successful Equal Employment Opportunity complaint that she filed.” Compl. 6 (JA 2). Jacobs alleges that, from 1992 to the present, she has received numerous awards and positive performance ratings from GSA. Compl. 7–8 (JA 2). Despite seeking other employment since September 1990, however, Jacobs has not received a job offer. Instead, she alleges, she “has been literally held prisoner at GSA ․ for the past 20 years.” Compl. 13 (JA 3). She believes that she has been unable to find a new job because Vrobel “defames [her] and criticizes her work abilities when [a] potential employer calls for a reference.” Compl. 21 (JA 4). She alleges that “[o]n numerous occasions when she was told that she had [a] new job [for which she interviewed], the new job disappeared after the hiring agency contacted GSA and Plaintiff's supervisor.” Compl. 20 (JA 4).
On May 2, 2011, Jacobs filed a two-count complaint in the District of Columbia Superior Court against Vrobel for defamation and “malicious intentional interference with plaintiff's alternative employment opportunities.”1 Compl. 12–32 (JA 3–5). Under the Westfall Act, however, if a plaintiff brings a tort suit against a federal employee in state court, the Attorney General may certify that “the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose.” 28 U.S.C. 2679(d)(1). Upon certification, the employee is dismissed from the action, the United States is substituted as the defendant, the claim is removed to federal district court and the claim becomes governed by the FTCA. Id. 2679(d)(1)-(2). As the United States Supreme Court has explained, “the purpose of the Westfall Act [is] to shield covered employees not only from liability but from suit.” Osborn v. Haley, 549 U.S. 225, 248 (2007).
On May 23, 2011 the Attorney General through his delegate certified that Vrobel “was acting within the scope of his employment ․ at the time of the alleged incidents.” Certification, Jacobs v. Vrobel, No. 11–cv–953 (D.D.C. May 23, 2011) (JA 14). The certification removed Jacobs's suit to the United States District Court for the District of Columbia and substituted the United States as the defendant. The next day, the United States moved to dismiss Jacobs's complaint for lack of subject matter jurisdiction and failure to state a claim, attaching an affidavit in which Vrobel declared that he acted within the scope of his employment at all relevant times and in all relevant actions. Mot. to Dismiss, Jacobs v. Vrobel, No. 11–cv–953 (D.D.C. May 24, 2011). On March 8, 2012, the court dismissed Jacobs's complaint for lack of subject matter jurisdiction. Mem. Op. 10, Jacobs v. Vrobel, No. 11–cv–953 (D.D.C. Mar. 8, 2012). Because Vrobel had acted in the scope of his employment, the court concluded, Jacobs's only recourse was to proceed under the FTCA against the United States, id. at 8, and, because Jacobs's claims were governed by the FTCA, it lacked subject matter jurisdiction for two independent reasons: first, Jacobs failed to exhaust administrative remedies under the FTCA and second, the United States had not waived its sovereign immunity from suit for the torts Jacobs alleged. Id. at 8–10. Jacobs timely appealed.
- See more at: http://caselaw.findlaw.com/us-dc-circuit/1...thash.UG7Uc4V6.dpuf
09:29 PM ET (US)
Ny guy and slingshot - this is the case you pulled up: caselaw.findlaw.com/us-dc-circuit/1640211.html That is the decision which was rendered on July 26, 2014, not the decision which was mentioned in that decision rendered on March 8, 2012, that's the one I need!
SlingshotPerson was signed in when posted
10:38 PM ET (US)
Help, So that I can try to help you, Where did you find this case?
NYC Wiseguy
10:17 PM ET (US)
I just typed in Jacobs v Vrobel and viola'...there she be. It was that easy. Give it a shot.
09:58 PM ET (US)
I need this case, but can't find it, can anyone help? Jacobs v. Vrobel, United States District Court for the District of Columbia Case #11-cv-953, Decision Issued on March 8, 2012, not the one issued by the a Appellate Court on July 26, 2013! Thanks!
SlingshotPerson was signed in when posted
04:15 PM ET (US)
Having trouble posting this message...I hope it works this time

Go to facebook put in USEEOC into the search field Post your questions and comments
Edited 11-04-2014 04:17 PM
NYC Wiseguy
02:02 PM ET (US)
Take another shot ok?
08:14 AM ET (US)
NYC Wiseguy: I just tried to send you a e-mail about the conversation with the Dept of Labor and they say your e-mail was not valid anymore. Did you change your e-mail account?
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