Johnson v. Shalala

991 F.2d 126, 1993 WL 120296
CourtCourt of Appeals for the Fourth Circuit
DecidedApril 20, 1993
DocketNos. 92-1109, 92-1815, 92-1816 and 92-1846
StatusPublished
Cited by57 cases

This text of 991 F.2d 126 (Johnson v. Shalala) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Shalala, 991 F.2d 126, 1993 WL 120296 (4th Cir. 1993).

Opinion

OPINION

WILKINSON, Circuit Judge:

In this case we must ask when an employer’s failure to accommodate an employee under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., amounts to a constructive discharge of that employee. Dr. Sharon Johnson left her employment with the National Institutes of Health; she now claims that she was constructively discharged from her job. The district court agreed, holding that NIH had constructively discharged Dr. Johnson because her supervisors knew of her handicapped condition but failed to give her the accommodation that she requested and to which she was entitled under the Rehabilitation Act. We believe that this legal standard would convert every violation of the Rehabilitation Act into a potential claim for constructive discharge. Applying the proper stan[128]*128dard for constructive discharge, we find no evidence that NIH intended to force Johnson to resign, and accordingly we reverse the judgment of the district court.

I.

The record in this case demonstrates an employment relationship that was beset on all sides by strains and difficulties. The plaintiff lived some distance from her place of employment, and she suffered from a variety of genuine medical ailments, which did not yield readily to treatment. These problems were exacerbated by a demanding job that by its nature engendered a fair degree of stress. Reviewing the history of this employment relationship, it seems plain (and NIH now concedes) that while NIH accommodated plaintiffs handicaps in some respects, it did not do all that was required under the Rehabilitation Act. When reviewing these facts for a claim of constructive discharge, however, the question becomes whether NIH sought to force the plaintiff to resign.

Dr. Sharon Johnson worked from 1984 to 1986 as the Executive Secretary of the Pathobiochemistry Study Section in the Division of Research Grants for the National Institutes of Health, a branch of the Department of Health and Human Services. The Study Section is a group of scientists who review biomedical research grant applications to determine which applicants should receive NIH grants. Dr. Johnson’s duties included organizing and attending meetings for the review of grant proposals, preparing written reports of those meetings, and making site visits to grant applicants. She was also responsible for processing appeals of grant denials and for selecting members of the Study Section. Dr. Johnson’s position as chair of the Study Section meetings required that she attend them in their entirety. 5 U.S.C. Appendix 2, § 10(e). The meetings sometimes lasted all day and often went beyond normal business hours.

Unfortunately, Dr. Johnson had a medical condition which made the performance of a demanding job even more difficult. She suffered from idiopathic CNS hyper-somnolence, a form of narcolepsy or excessive sleepiness that required her to sleep nine or more hours per night and to take short naps during the day when she became tired. The condition often caused Johnson to fall asleep during the meetings she was conducting. Dr. Johnson also suffered from cardiac arrhythmia, a condition that causes a rapid, erratic heartbeat and that precluded her from taking medication to control her narcolepsy. In addition, Dr. Johnson had had surgery for breast cancer and needed periodic checkups to ensure that the cancer did not recur.

The situation was further complicated by commuting problems. Dr. Johnson and her husband moved to Annapolis, Maryland in 1982. She drove daily from Annapolis to NIH’s Bethesda offices, a trip that takes approximately one hour each way. Her narcolepsy, however, frequently required that she pull over for fifteen-minute naps, making it difficult for her to arrive at work at a fixed time.

By memorandum of August 22, 1985, Dr. Johnson requested flexible starting and ending times for her work. At the same time, she requested authorization to change her scheduled work hours more frequently than the permitted July 1 and December 1 dates, so that she could take advantage of “seasonal traffic patterns.” In a reply memorandum, Dr. Asher Hyatt, her immediate supervisor, informed Johnson that her request required medical documentation. This memo also stated: “[Njote that the medical supporting information may be used as documentation in a disability retirement action. Disability retirement may be offered if accommodation cannot be reached.” Dr. Johnson sent Hyatt a reply memo with a letter attached from her physician. The letter recommended:

[Sjhe will need to have flexible working hour schedule with due regard given to possible late arrival and late departure .... She is never expected to obtain full or partial recovery and will always be hampered by this condition. If the patient were given a regular work schedule wherein she could participate in a car pool arrangement where she would not [129]*129be responsible for driving to and from work the above recommendations would not be necessary. However, I understand that she needs to work late at times to attend meetings associated with her current job situation.

After consulting with his supervisor and a physician from Occupational Medical Services at NIH, Hyatt sent Johnson a note saying “The only further accommodation I can make is to the hours of a car-pool. I strongly suggest you try to find an appropriate car-pool. There is a locator in Bldg. 31.” No adjustment was made to Johnson’s work hours to make them more regular, but around this time all employees were sent a memo informing them of the agency’s “Flextime Policy,” which permitted up to fifteen minutes variance in arrival and departure times. In addition, Dr. Johnson was permitted to change her work hours four times a year, rather than the standard two times permitted for other employees.

Dr. Johnson joined a carpool soon after receiving the memo from Hyatt. Meeting the carpool required a twenty-five to thirty minute drive, which, on those days when it was her turn to drive the carpool, made her drive longer than before. In addition, Johnson’s duties as chair of the Study Section did not permit her to drive every day with the carpool. She did not, however, communicate her dissatisfaction to Dr. Hyatt.

In February 1986, Dr. Johnson requested that she be allowed to stay in a hotel in Bethesda at government expense for two nights during a three-day Study Section meeting. Dr. Hyatt refused this request, which was contrary to NIH policy.

On April 7, 1986, Dr. Johnson requested five weeks of Leave Without Pay (“LWOP”) to begin April 9. Accompanying this request was a letter from Johnson’s psychologist advising that Johnson needed at least a month off because she was suffering from “extreme physical and psychological exhaustion,” which the psychologist attributed to Johnson’s long commute and stress from her NIH workload. On April 8, Dr. Friedman, Johnson’s second-level supervisor, approved that request, which would become effective when Johnson completed the summaries of the last meetings and reported on the status of grant applications scheduled to be considered at the next round of meetings.

On April 11, Dr. Johnson requested fifty-two hours of advance sick leave for routine medical examinations. In a memo, Dr. Hyatt approved twenty-nine hours of leave that Johnson had already taken, but informed her that in the future she would have to comply with NIH rules and first request in writing any advance sick leave.

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Bluebook (online)
991 F.2d 126, 1993 WL 120296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-shalala-ca4-1993.