2. Reasonable Accommodation
OPIC's awareness of plaintiff's disability did not trigger its statutory duty to accommodate, in the absence of proof that OPIC was aware, or should have been aware, of the limitations the disability imposed upon plaintiff's ability to work. See Taylor v. Principal Financial Group, Inc., 93 F.3d 155 (5th Cir.), cert. denied, 136 L. Ed. 2d 515, 117 S. Ct. 586 (1996); Gallagher v. Catto, 778 F. Supp. 570, 578 (D.D.C. 1991), aff'd mem., 300 U.S. App. D.C. 322, 988 F.2d 1280 (D.C. Cir. 1983). OPIC's duty to accommodate any limitations imposed by plaintiff's depression thus did not arise until plaintiff asked for an accommodation, which she did not do until December 1994 at the earliest.
When plaintiff did request an accommodation, OPIC was required to engage in an interactive process to determine appropriate accommodations. 29 C.F.R. Pt. 1630, App. As part of that process, OPIC was entitled to request medical documentation of the need for an accommodation, if the need, and the appropriate accommodation, were neither obvious nor specified in the request. Id.; see also Carter v. Watkins, 57 Empl. Prac. Dec. (CCH) P 41,217 (D.D.C. Dec. 23, 1991).
OPIC sent a notice of proposed removal to plaintiff on January 30, 1995. The letter recited criticisms of plaintiff's performance, but it also included a request for more specific information regarding plaintiff's diagnosis and prognosis and for the nature of the accommodation she was requesting. Plaintiff did not respond to OPIC's inquiry of January 30, 1995, nor to subsequent letters (both to her and to her lawyer) requesting the same kind of information. On March 16, 1995, plaintiff was informed that her sick leave would soon expire, and that she must submit medical documentation if she wished to be placed on a leave of absence. Again, there was no response. On April 25, 1995, plaintiff was terminated.
Plaintiff's failure to respond to OPIC's inquiries or otherwise to participate in the process of identifying appropriate accommodation is fatal to her reasonable accommodation claim. See Hunt-Golliday v. Metropolitan Water Reclamation District of Greater Chicago, 104 F.3d 1004, 1012 (7th Cir. 1997). Plaintiff's mere assertion that a response would have been "futile" will not avoid the consequence of her failure to respond. There is no evidence of bad faith on OPIC's part. Id.
Post-trial review of the record makes it clear, moreover, that there was no evidence upon which a reasonable juror could have found that, at the time of her termination, plaintiff was able to perform her job with reasonable accommodation. The evidence, in fact, all pointed the other way. Plaintiff filed a sworn social security application (dated June 25, 1996) reciting that as of January 5, 1995, she was "unable to work" because of her "disabling condition." Plaintiff's doctor testified that, by January 1995, she was suffering from severe depression requiring indefinite sick leave; that no date of recovery could be estimated; and that there was nothing OPIC could have done in particular to enable her to work. Plaintiff's statements to the Social Security Administration, taken together with the medical testimony she adduced, bar her assertion for ADA purposes that accommodation would have allowed her to perform her job. See Swanks v. WMATA, 325 U.S. App. D.C. 238, 116 F.3d 582, 1997 U.S. App. LEXIS 14811, 1997 WL 335143, at *5 (D.C. Cir. 1997).
Entry of judgment for the defendant on one of plaintiff's two claims requires consideration of the impact of that ruling on the $ 75,000 damages award. The verdict form had only one space for entering an award, and it did not provide a method for allocating any award between the disparate treatment claim and the reasonable accommodation claim. There was no objection to that verdict form. Indeed, defendant's proposed special verdict form also provided only one space for the entry of a damages award, if the jury found for plaintiff on her disparate treatment claim "and/or" her reasonable accommodation claim. Accordingly, the jury's award will not be disturbed.
An appropriate order accompanies this memorandum.
United States District Judge
Dated: July 17, 1997
Upon consideration of defendant's motion for judgment as a matter of law, plaintiff's opposition thereto, and the entire record, for the reasons stated in the accompanying memorandum, it is this 17th day of July, 1997,
ORDERED that defendant's motion for judgment as a matter of law will be denied as to the disparate treatment claim and granted as to the reasonable accommodation claim. It is
FURTHER ORDERED that judgment is hereby entered for defendant on the reasonable accommodation claim.
United States District Judge