IAADP
International Association of
Assistance Dog Partners


WORKPLACE ACCESS CASE

by Joan Froling

Nolan is an energetic Labrador Retriever who would love to assist his partner, Dr. Chris Branson, M.D., to get around the VA hospital where she is employed. He could pull her wheelchair, open heavy doors, retrieve dropped objects and perform a number of other tasks that would help Chris to conserve energy and substantially reduce the amount of fatigue and pain she suffers on a daily basis. Unfortunately, this benefit and other benefits to be gained through partnership with a highly trained service dog have been denied to Chris by her employer. Nolan sits at home, his skills going to waste, while Chris struggles to meet the tough physical demands of her job without her service dog at her side. Lakeside VA refuses to allow Chris Branson to utilize this form of assistive technology in the workplace. This denial of access forced Chris into an embittering civil rights battle with her employer, one that engulfed the last four years of her life.

One of the goals of federal legislation like the Rehabilitation Act and the Americans With Disabilities Act was to empower disabled citizens to obtain jobs that pay a living wage and to maintain competitive employment. These acts require employers in the USA to grant an employee's request for a reasonable accommodation of a disability in the workplace. Sometimes, however, the intent and scope of that legislation is perverted by a self serving interpretation of what is "reasonable" by a corporation or federal bureaucracy like the VA. Such was the case here.

The reasonable accommodation involved in this instance was a request in Dec. 1994 for the VA hospital to modify its policies so Chris Branson could have a service dog assist her in the workplace. She had lost the use of her legs in an accident in 1985 and like other paraplegic wheelchair users, she relies on her arms in a way that Nature never intended. As the years went by, the excessive wear and tear on her upper extremities was taking a painful physical toll. After consultation with her physicians, Chris chose partnership with a highly skilled service dog as the best way for her to address these problems, slow down the degenerative process and prolong her independence. She did not anticipate any problems with access rights, since the VA already had a policy of granting patients with guide dogs access to the facility.

The hospital knew from her request that she planned to commence training with the service dog in May 1995. She expected to be certified by the program that prepared Nolan for this career in November and bring him to work with her after the Thanksgiving holiday. The hospital administration did not immediately turn down her request for an accommodation. It waited till Nov. 24, 1995 to hit her with a formal letter denying her access to the workplace.

Greatly distressed by the news she could not bring Nolan to work with her as planned, Chris wrote to the Chief of Staff on Dec. 4, 1995, asking for an explanation. She attached relevant material from the Health and Human Services Department on service animal access in federal facilities. Failing to get anywhere with this approach, on May 3, 1996, she appealed the decision to the VA's Equal Employment Opportunity Office. On Feb. 28, 1997, this internal review process rendered its final determination, rubber stamping the Lakeside VA hospital administration's rationale for denying access.

The VA adopted the position that partnership with a service dog is a lifestyle choice, not a necessity. It argued Chris Branson did not require a service dog in order to perform her actual job duties and therefore she does not have a legal right to this accommodation at her place of employment. It claimed that written statements from Branson's physicians about her increasing problems with carpal tunnel syndrome and other problems caused by years of overuse of her upper extremities were insufficient to prove the paraplegic doctor was disabled enough to need a service dog in the workplace. It dismissed her testimony about all the useful tasks her dog could perform to alleviate the stress on her upper extremities and prolong her independence as irrelevant. Since she failed to prove to the VA's satisfaction that a service dog was necessary in order for her perform her job duties as a physician, the VA hospital decided it was under no legal obligation to grant this accommodation.

Chris Branson took the VA hospital to federal court, suing them for denial of access. The months and years went by. The hostility she endured from her some of her superiors for persisting in her civil rights battle for this reasonable accommodation was corrosive and exhausting, but she would not cave in and withdraw the suit.

Finally IAADP received the phone call that was long overdue and extremely welcome. We have been following this case since first bringing it to the attention of IAADP members several years ago. Along the way, we were able to supply Chris and her lawyers with some relevant information, thanks to other IAADP members who have gone through litigation and thoughtfully shared a copy of the verdict with our Information and Advocacy Center. We were as anxious as she was about the outcome, recognizing the implications a negative verdict could have on future cases involving a request for access with an assistance dog in the workplace. On May 7, 1999, a federal district judge gave Chris and other IAADP members a reason to celebrate.

Both the plaintiff and the defendant had asked the judge for a Summary Judgement. Both sides felt their own case was so strong, it did not need to go to trial. The judge agreed the issue was so black and white, one side in this dispute definitely deserved a Summary Judgement. She ruled in favor of the assistance dog partner, not the VA hospital on the "reasonable accommodation" issue.

As you might imagine, Chris was elated to receive a Summary Judgement on the "reasonable accommodation" issue. The twenty seven page decision she faxed to us was most instructive. The judge took pains to refute the precedents cited by the VA's lawyers and to cite other precedents from the Seventh Circuit Court in support of her ruling. She believes that Dr. Branson is entitled to have a service dog in the workplace as a reasonable accommodation of her disability as a matter of law.

Apparently judges in prior court cases have held that a reasonable accommodation of a disability under the Rehabilitation Act does not have to be directly tied to specific job duties. The intent of the Act was much broader in scope, seeking to help disabled persons lead as normal a life as possible. A request for an accommodation might be considered reasonable if it allows a disabled employee to live a more normal life or if it furthers that person's right to equal enjoyment of the facilities or if it enables the person to perform the job in reasonable comfort. Does this mean a person with a disability can have anything he or she wants? No. The nature of the disability, the purpose of the requested accommodation, the issue of cost or undue hardship, an alternative accommodation an employer may propose and other factors can be weighed in determining if the employee's request is reasonable and should be granted.

The judge made it clear that the VA hospital's Chief of Staff had erred in the very narrow way he had construed the meaning of "reasonable accommodation." He focused solely on the specific tasks Chris performed as a physician, refusing to take a look at any other aspects of her working environment. He ignored the letters from Branson and her physicians about her need for an accommodation to address the problems of pain, fatigue and joint deterioration arising from excessive stress on her upper extremities. Wearing self imposed blinkers might have been "a misunderstanding" of the law, but when the judge took a look at the hospital's portrayal of Dr. Branson as the one who allegedly made it impossible for the VA administration to grant her request, the issue of "good faith" in the negotiating process or lack thereof, comes to the surface.

Five months after sending Branson the formal letter denying her access, the Chief of Staff, inexplicably sent a letter on April 17, 1996, to a third party, the head of the Rehabilitation Institute. He demanded new letters from her physicians detailing what job duties could not be performed unless she had a service dog to assist her. He also requested her medical records. Because Chris Brandon and her attorney did not respond by turning over her medical records when the request finally filtered down to them, the VA hospital later tried to claim she made it impossible for the negotiations to continue and thus, the denial of access was her fault. Judge Nolan did not agree. The judge disputed the timing and the sincerity of that request for the plaintiff's medical records. She quoted from the April 17, 1996 letter which revealed the Chief of Staff had not changed his position one iota. The judge ruled that after 18 months of making no headway with the Chief of Staff, it was entirely understandable for Chris Branson and her attorney to conclude that further "negotiation" with him was futile and Chris needed to look elsewhere for help in resolving the issue of reasonable accommodation.

It was to take three grueling years of perseverance, but eventually, Chris found that help in a federal courtroom from a judge who could see the forest for the trees.

This decision is a tremendous affirmation of the spirit of the Rehabilitation Act and ADA in interpreting a disabled employee's right to a reasonable accommodation.

Reprinted from Partners Forum Volume 6 Number 1

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