Virginia Lawyers Weekly//September 25, 2023
Virginia Lawyers Weekly//September 25, 2023//
Where an elementary school principal alleged that she was denied a reasonable accommodation when her request for entirely remote work was denied, but physical presence was an essential function of the position, the school district prevailed on the failure to accommodate claim.
In this disability discrimination and retaliation suit, the School Board of the City of Norfolk and Norfolk Public Schools, or NPS, moved for summary judgment against Cheryl R. Jordan, an NPS school principal. NPS argues that the evidence is insufficient as a matter of law to permit a reasonable juror to conclude that Jordan was denied a reasonable accommodation, both in regard to her request for entirely remote work and for reassignment, or that Jordan was retaliated against for engaging in protected activity. Jordan has filed a partial motion for summary judgment on the failure to accommodate claim.
Jordan argues NPS failed to provide a reasonable accommodation when it denied her request to work entirely remotely from Jan. 3, 2021, to June 30, 2021. NPS argues that it is entitled to summary judgment on this claim because Jordan could not perform the essential functions of her job as principal – after students and teachers returned to the classroom – with the requested accommodation to work fully remotely for six months.
The reasonableness of Jordan’s request for remote work can therefore be narrowed to one controlling question: whether physical presence was an essential function of Jordan’s position – elementary school principal. Because the undisputed facts demonstrate that physical presence was an essential function of Jordan’s job as elementary school principal during the time she sought accommodation by fully remote work, and Jordan was unable to perform the essential functions of her job fully remotely, she was not a “qualified individual with a disability,” and NPS was not required to grant her request for fully remote work.
While it is true that NPS’s job announcements (all of which predate her request for accommodation) lack the specific words “physical presence” and do not explicitly prohibit remote work, the duties described in each of them clearly imply that physical presence is necessary. The court is also not persuaded by Jordan’s argument that since she performed remotely during the COVID-19 pandemic, she can work remotely again and accomplish all essential functions of her position.
Jordan also argues that NPS failed to provide a reasonable accommodation by transferring her to Lindenwood, and not Richard Bowling. Jordan’s position is that her reassignment to principal of Lindenwood was not a reasonable accommodation under the ADA because she requested a transfer to a “healthy environment,” specifically Richard Bowling, but was instead reassigned “to an even older and potentially more run-down school” than Sherwood that “was known to be in poor condition.” NPS argues that Lindenwood was a reasonable accommodation and Jordan has “no evidence that the environment in Lindenwood was unhealthy and thus not a reasonable accommodation.”
The records cited by each party demonstrate genuine disputes of material fact concerning Lindenwood’s condition and preclude summary judgment for either party on Jordan’s request for reassignment. Jordan has testified that her health worsened after trying to work in-person at Lindenwood. Her doctors have attributed this to exacerbation of her condition by environmental factors. But a factfinder might also rely on the complete absence of evidence of the environmental conditions at Richard Bowling, or any documented condition at Lindenwood known to have exacerbated Jordan’s symptoms, to conclude that the transfer to Lindenwood was reasonable.
Genuine disputes of material fact preclude the court from entering summary judgment on the retaliation claim. Jordan and NPS have conflicting evidence concerning the condition of Lindenwood. Reasonable jurors might rely on this evidence to conclude a transfer to Lindenwood made things worse, not better. Therefore, there is a genuine dispute regarding whether Jordan’s reassignment to Lindenwood was materially adverse.
The parties also dispute whether Dr. Byrdsong had knowledge of Jordan’s EEOC charge (or her other protected activity) prior to deciding to reassign her to Lindenwood, or if she did, whether the evidence of her knowledge is sufficient to demonstrate causation.
Defendants’ motion for summary judgment granted in part, denied in part.
Jordan v. School Board of the City of Norfolk, Case No. 2:22-cv-167, Sept. 7, 2023. EDVA at Norfolk (Miller). VLW 023-3-548. 27 pp.