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A federal judge has overturned a jury’s verdict of $1.5 million in a suit brought under the Americans with Disabilities Act after finding that the employer had reasonably accommodated the plaintiff for years and that the plaintiff herself had refused to participate in the “interactive process” when a new accommodation was proposed. In his 17-page opinion in Davis v. Guardian Life Insurance Company of America, U.S. District Judge Ronald L. Buckwalter found that the jury should never have found in favor of Denise Davis because she had flatly rejected her employer’s proposal without even discussing it and instead opted to apply for long-term disability benefits. Buckwalter found that participation in the interactive process “is an obligation of both parties” and that “neither can be faulted if the other does not supply information or answer requests of the other.” The ruling is a victory for attorney Richard G. Rosenblatt of Morgan Lewis & Bockius, who was hired after the verdict to draft and argue post-trial motions. Davis worked as a disability insurance underwriter in Guardian’s northeast regional home office in Bethlehem, Pa. In 1989, she was diagnosed with Crohn’s disease, an inflammatory bowel disorder that produces a variety of symptoms including abdominal pain, fever, diarrhea, extreme pain and dehydration. Victims of Crohn’s disease suffer from “flare-ups” that make it difficult to travel. Guardian accommodated Davis by allowing her to work from home three days each week on a schedule chosen by her. And to accommodate her three days at home, Davis was given a fax machine, a computer and a private messenger service from office to home. By simply calling her supervisor, she could switch the two days that she was required to work at the office. But in 1997, when Davis was preparing to return from work after an extended absence, the company asked that she begin naming the two days she would work in the office on the Friday before a week began. Davis refused to go along with the new proposal and instead filed for disability benefits. She claimed that the company retaliated against her by cutting off the disability pay soon after she filed a complaint with the Equal Employment Opportunity Commission. But Buckwalter found that it was Davis who had failed to comply with the ADA. “Despite the fact that defendant had accommodated her for years, despite the fact that defendant had willingly deviated from its schedule to accommodate plaintiff in the past, despite the fact that plaintiff had an excellent relationship with [her supervisor], and despite the fact that she continued to get good ratings, she simply closed the door on even attempting merely a week or at least some period of time under the [new] schedule,” Buckwalter wrote. In his brief, Rosenblatt argued that “the crux of this case relates to whether Guardian failed to reasonably accommodate plaintiff.” The evidence at trial, he said, showed that “there is no basis in law or fact for the jury to have concluded that Guardian failed to do so.” But Davis’ lawyer, Mardi Harrison of Doylestown, Pa., argued that Guardian had removed an essential element of its accommodation — flexibility — by requiring Davis to name her two days in the office in advance. Buckwalter found that until April 1997, Davis “was quite pleased with the accommodations” that Guardian had provided her. But Buckwalter found that when Guardian attempted to “memorialize” its arrangement with Davis in writing, she “refused to even try from the very first time it was suggested.” Instead, Buckwalter said, the company’s proposal “fell on deaf ears.” Buckwalter found that Davis “subjectively feared” that she was not going to be able to adhere to the new terms, and also feared that she would be charged sick days that might lead to her termination. But he said the evidence also showed that she never expressed that concern to Guardian. “What the record does show is that although the alternative work schedule proposed to her in October 1996 and again in December 1996 threatened her flexibility, she actually continued to have the flexibility,” Buckwalter wrote. Although the proposed arrangement was not as flexible as her previous one, Buckwalter found that Davis “did not even try to see how it would work in practice.” Legally, Buckwalter said, Davis’ “subjective and unsubstantiated belief that the … proposal would not work is insufficient to establish the accommodation was unreasonable.” Davis’ failure to even try the new plan, he said, “resulted in the total breakdown of any kind of interactive process which should take place between an employer and the qualified employee with a disability.” The ADA’s interactive process requires more of employees, Buckwalter found. “To reject out of hand a proposal to name her two office days on the Friday prior to each work week is not engaging in the type of interaction contemplated by the ADA to arrive at an accommodation that is fair and reasonable. This constituted a failure to comply with plaintiff’s duty to cooperate in the interactive process so that defendant cannot be faulted for a failure on its part with regard to finding a reasonable accommodation after its [proposal] was rejected,” Buckwalter wrote. Guardian was represented at trial by attorney R. Michael Carr of Stevens & Lee, based in Reading, Pa.

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