7th Circuit rejects disability discrimination argument brought by teacher who wanted to regularly arrive late

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A military teacher who said her health issues meant she needed to come into work two hours late each day could not convince the 7th Circuit Court of Appeals that her employer engaged in disability discrimination.

The Department of Defense Education Activity operates 160 schools across the globe to educate the children of military families.

Plaintiff-Appellant Tamica Smithson has worked for DODEA as a science teacher since 2004. She has been stationed at a high school in Vilseck, Germany since 2006.

Smithson has a number of medical conditions including migraines, intracranial hypertension, affective disorder, vertigo and attention-deficit/hyperactivity disorder. Those conditions, together with the medications that she takes to control them, have adverse effects on her major life activities, including problems with balance, difficulty walking and driving, breathing problems, and impaired vision, speech and memory.

In 2010, Smithson asked her employer for accommodations to address her challenges.

Specifically, she requested a flexible start time so that if she came in late, she could make up the time at the end of the day. She also requested permission to be seated during part of the teaching day due to her migraines that cause dizziness. She informed the principal that her delayed start time would not occur frequently.

Her employer approved the accommodations.

In 2014, Smithson requested immediate relief in the classroom during anxiety attacks; immediate communication of any performance concerns that required correction; specific solutions to decrease the anxiety of unknown expectations regarding her performance; to be excused from frustrating situations such as irate parents or co-workers; continued use of memory aids such as Outlook calendar, organizers and email reminders; extra time to complete certain tasks such as grading, paperwork and trainings; and to keep the first period of the day as her planning period.

According to the 7th Circuit, it is unclear from the record how the request was resolved, but it appears that Smithson was able to perform her job to DODEA’s satisfaction that year.

In 2015, Smithson requested an alternate work area outside of the building; continued flexible duty reporting time; the ability to be seated in the classroom throughout much of the day; immediate relief during anxiety attacks; immediate communication of performance issues; to be excused from frustrating situations; extra time for completing the tasks she listed in 2014; and the continued assignment of the first period for her planning period.

The principal granted most of the requests and informed Smithson that she should notify the administration when she used an alternate work area, when she used flexible reporting time, when she experienced an anxiety attack and when she needed to be excused from frustrating situations.

The principal also approved her use of a chair throughout the day, agreed to communicate any performance issues, afforded her the continued use of memory aids and granted the requested extra time to complete tasks.

However, the principal told Smithson that first-period planning periods could not be guaranteed due to the needs of the students, the needs of the school and the complexity of the School Master Schedule.

Smithson was able to carry out her duties to her employer’s satisfaction during this time period.

The next year, a new principal was hired.

Then in 2017, the school changed its Master Schedule and assigned Smithson to teach five sections of biology.

Smithson asked for an accommodation: having her regular schedule of varied classes because of a need to avoid boring situations, which worsened her affective disorder and her headaches. Principal Marc Villareal offered to switch one or two sections of biology with human anatomy and physiology, but Smithson declined that offer.

In 2018, Smithson requested certain software that would allow her to monitor students conducting research without leaving her desk. She also requested a tablet computer for the same purpose, stating that she needed the technology because she could no longer move about the classroom without getting dizzy.

Villareal forwarded the request to Laura Tronge, the new diversity/disability coordinator program manager for DODEA in Europe. He then attempted to set up a meeting with Tronge and Smithson in order to update the school’s records for her accommodation requests.

Smithson questioned whether such a meeting was necessary because she was updating already-granted accommodations. She noted that her condition had worsened since she had first requested accommodations.

Tronge responded that because Smithson’s medical condition had changed over time, the school was obligated to periodically review previous accommodations under the Rehabilitation Act. After Tronge met with Smithson, Tronge asked Smithson to provide medical documentation to support her requests.

Smithson submitted a doctor’s letter indicating that she required a flexible reporting time that included as much as a two-hour delay — admittedly much more than the 15 minutes Smithson initially requested in 2010.

The doctor also indicated Smithson’s continued need to avoid classroom instruction during the first period of the day so that she could work from home during that time in a dark area to alleviate the effects of her medical conditions and drug side effects. Additionally, the doctor recommended that Smithson be allowed to remain seated during classes, and that she receive assistive software and hardware that would allow her to remain seated.

Finally, Smithson’s doctor recommended prompt communication of performance issues, extra time to complete certain tasks, and that she be allowed to continue a course load that was familiar and recently instructed.

Smithson was approved to use a chair while teaching unless it was determined to be an undue hardship for the employee to perform the essential functions of the position. In response to Smithson’s need for performance feedback, Villareal committed to providing feedback quarterly for the upcoming school year.

As for her request for extra time to perform certain tasks, Villareal offered to be flexible but indicated that the request would be granted on a “project/product by project/product deadline.” He added that his response was not a denial.

In response to her request to teach only particular classes, Villareal indicated that the school would do its best to give her the assignments that she requested, but that outcome could not be guaranteed based on the school’s needs and teacher accreditations.

Smithson’s technology requests would be provided if DODEA had the products available, Villareal said. Two of the items Smithson had requested weren’t available, but Villareal pledged to look for alternatives that would serve the same functions.

Finally, as to Smithson’s request for a flexible reporting time, Villareal responded, “The employee is approved to use sick leave for any absence from school up to two hours, barring any undue hardship to the school schedule.”

A few weeks after receiving Villareal’s response, Smithson informed him that she would be late every day. Smithson had never had to use sick leave for her morning delays, and she had to take half-day increments due to the school’s policy on sick leave.

However, the COVID-19 pandemic resolved the situation in a way that was acceptable to both DODEA and Smithson.

“DODEA suddenly had a great need for virtual instruction because of the pandemic and Smithson was hired to work from home, full-time, as a teacher in DODEA’s Virtual School in August 2020,” the 7th Circuit wrote. “She apparently continued to do so as of the time the appellate briefs were filed.”

Meanwhile, Smithson filed suit under the Rehabilitation Act, alleging disability discrimination and failure to accommodate for the time she was required to use sick leave whenever she arrived late.

The U.S. District Court for the Southern District of Indiana granted summary judgment in favor of DODEA, and Smithson appealed.

On appeal, Smithson argued that the district court erred in finding that she was unable to fulfill the essential functions of her position as a teacher, with or without an accommodation, because of her need to delay her arrival at school.

Specifically as to her failure-to-accommodate claim, Smithson agreed that attendance during school hours is essential but argued that early-morning attendance is not essential.

The 7th Circuit rejected that argument.

First, “… her employer is allowed to designate in-person attendance as an essential function, she has conceded that in-person attendance was necessary for teachers, and she was regularly unable to attend for up to a quarter of the designated school day, a significant part of the workday,” Judge Ilana Rovner wrote. “That means that she is not a qualified individual as a matter of law.”

Further, “DODEA has now accommodated Smithson by placing her in a position where she teaches from home at a virtual school. But at a time when these technologies were not in wide use, and in the context of teaching at a school where both students and teachers regularly attended in person, DODEA adequately accommodated Smithson’s needs by granting her delayed arrivals through the use of sick leave, which allowed DODEA to cover her absences with substitute teachers.

“The same analysis applies to her claim for disability discrimination,” Rovner continued. “As with her accommodation claim, she must show that she is a qualified individual with a disability.

“Because she cannot show that she could fulfill the essential requirement of in-person attendance on a regular basis in the first two hours of the school day, with or without a reasonable accommodation, her discrimination claim fails as a matter of law.”

The case is Tamica J. Smithson v. Lloyd J. Austin, III, United States Secretary of Defense, 22-2566.

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