Nick Hurston//October 2, 2023
Nick Hurston//October 2, 2023//
An elementary school principal with asthma who claimed that her school violated the Americans with Disabilities Act, or ADA, by not letting her work remotely after students returned to class saw her failure to accommodate claim dismissed by the Eastern District of Virginia.
The school said remote work during the pandemic didn’t mean the principal’s physical presence at the school was no longer an essential function of her job. After allowing her to transfer schools, albeit not to the school she requested, the principal said that was retaliation.
U.S. Magistrate Judge Douglas E. Miller found a genuine dispute regarding the principal’s retaliation claim, but dismissed her claim for failure to accommodate her request to work remotely.
“[T]he undisputed facts demonstrate that physical presence was an essential function of [the plaintiff’s] job as elementary school principal during the time she sought accommodation by fully remote work,” the judge said. “Because [she] 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.”
The opinion is Jordan v. School Board of the City of Norfolk (VLW 023-3-548).
Cheryl Jordan worked for Norfolk Public Schools, or NPS, as a principal at Sherwood Forest Elementary School from 2007 until 2021.
Sherwood was 100% virtual during the COVID pandemic. Jordan performed most of her duties remotely and received positive performance evaluations.
In November 2020, Jordan gave NPS a letter from her pulmonologist confirming that her asthma symptoms were exacerbated by environmental exposures at the school and recommending that she be accommodated with remote work as feasible.
Using the ADA interactive process, Jordan requested to work remotely for six months due to her severe asthma, sick building syndrome and mild restrictive lung disease. Three doctors supported her request that her physical presence at Sherwood exacerbated her symptoms.
Pointing to extensive remediation at Sherwood, NPS denied Jordan’s requests and instead offered her an air purifier.
When Jordan requested leave under the Family Medical Leave Act, or FMLA, she also asked to be transferred away from Sherwood. NPS refused.
Jordan specifically requested that she be reassigned to a newly vacant principal position at Richard Bowling Elementary School, where the building was only a few years old.
Soon after returning from FMLA leave, Jordan suffered a medical setback. She asked that NPS reconsider letting her work remotely and reiterated her desire for transfer to a school with a “healthy and safe environment,” but didn’t identify a preferred school.
On the same day Jordan filed a formal charge of discrimination, NPS told her that voluntary transfers weren’t “automatically approved.” Of 147 requests, NPS said it could only approve 34.
Upon learning of her transfer to Lindenwood Elementary School, Jordan protested that she had requested Richard Bowling because it was a newer, healthier building. She believed NPS hadn’t considered or prioritized her health when making its decision.
After working in Lindenwood for one week, Jordan’s doctor held her out of work entirely “due to mental illness.” Per the opinion, Jordan hasn’t worked since, but NPS renewed her employment contract through the 2023-2024 school year.
Contractors hired by NPS to inspect Lindenwood showed the air quality didn’t present an elevated risk of exposure to mold.
When her formal discrimination charge was dismissed, Jordan filed a timely suit alleging that NPS violated the ADA by failing to accommodate her remote work and transfer requests, as well as retaliation for not transferring her to Richard Bowling.
NPS moved for summary judgment, arguing that the evidence was insufficient for a reasonable jury to conclude that Jordan was denied any reasonable accommodation or was retaliated against.
Jordan requested summary judgement for her failure to accommodate claim.
Miller said the undisputed facts demonstrated that physical presence was an essential function of Jordan’s job.
“Because 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,” he wrote.
Responding to Jordan’s point that NPS didn’t ask for more information or discuss alternatives, Miller said she had the burden to identify a reasonable accommodation that would allow a qualified individual to perform the job.
“[T]he Fourth Circuit has specifically stated that ‘an employer will not be liable for failure to engage in the interactive process if the employee ultimately fails to demonstrate the existence of a reasonable accommodation that would allow her to perform the essential functions of the position,’” he explained.
NPS relied on testimony from its superintendent that a principal must have some regular physical presence in the school. NPS also pointed to Jordan’s testimony about walking through the school daily before COVID and returning regularly during the pandemic.
Jordan pointed to three NPS job descriptions that didn’t indicate the job couldn’t be performed remotely. Her performance during COVID bolstered that position, she claimed.
Miller was unconvinced.
“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,” he noted.
After pointing out that employers’ temporary relaxation of some essential functions during the pandemic didn’t change the fact that those functions were essential, Miller granted summary judgment to NPS and dismissed Jordan’s failure to accommodate claim.