Sanchez v. Vilsack, No. 11-2118 (10th Cir. Sept. 19, 2012)

By Paul Mollica

The Tenth Circuit joins other circuits and the EEOC in holding, under the Rehabilitation Act, that the required “reasonable accommodation” of persons with disabilities is not limited to accommodations related to the essential functions of a job. Here, the court holds that it may be a reasonable accommodation to transfer an employee to a major metropolitan area to enable her to get Medical attention. “Considering the case law from this court and others, we conclude that a transfer accommodation for Medical care or treatment is not per se unreasonable, even if an employee is able to perform the essential functions of her job without it.”

Sanchez v. Vilsack, No. 11-2118 (10th Cir. Sept. 19, 2012):  As the opinion summarizes,

“Clarice Sanchez, a long-time secretarial employee of the United States Forest Service (‘Forest Service’), suffered irreversible brain damage after falling at work. As a result of her injury, Sanchez lost the left half of her field of vision. She requested a hardship transfer to Albuquerque, New Mexico, where she could better access ongoing Medical treatment.”

The agency denied the transfer and the employee brought her action her district court. The district court held that the employee could not prove that she was “disabled” because her condition – homonymous hemianopsia – did not substantially limit the major life activity of seeing.

The Tenth Circuit reverses. It first holds that the district court erred in holding as a matter of law that the employee did not suffer a disability as defined by the Rehabilitation Act:

“Sanchez provided a great deal of evidence attesting to the manner in which homonymous hemianopsia limited her ability to see as compared to the average person. Sanchez testified that her field of vision when looking straight ahead was half of what she could see prior to the injury. By way of example Sanchez explained in her affidavit that ‘when [she] look[s] at things, like an adding machine, [she] cannot see the entire machine.’ Sanchez addition ally averred-and Medical experts confirmed-that her vision loss is permanent and cannot be improved by lenses or surgery. [Medical expert] Dr. Watts stated that individuals who suffer from a homonymous hemianopsia find it difficult to accommodate for their loss of vision, instead ignoring the side of their bodies on which the vision is lost.”

The plaintiff addition ally offered testimony that the disability affected her in daily life:

“Sanchez also submitted evidence showing that her limited ability to see rendered other aspects of her life more ‘difficult, slower, and more dangerous.’ She described challenges in reading and performing basic financial math. She testified to her tendency ‘to injure [her]self while performing basic cleaning and maintenance’ at home, and explained that she relied on her daughter to fly from Albuquerque to Lufkin every few weeks to assist her with shopping and other tasks. She also presented evidence that it was unsafe for her to drive, and that she did so-against doctor’s orders-only when and where she could avoid traffic.”

After resolving the district court’s error on the threshold issue, the panel goes on to reach another issue: whether the duty to provide a “reasonable accommodation” extends to accommodations to allow treatment of a disability, including a transfer to another location. Lining up with case law in the First, Seventh and Ninth Circuits and the EEOC’s interpretative regulation, 29 C.F.R. § 1630.2(o)(ii) & (iii), the panel holds that such an accommodation is encompassed by the Rehabilitation Act (as well as the ADA):

“An employer’s duty to modify the work environment, for example, ‘even applies to nonwork facilities . . . such as restrooms and break rooms.’ 29 C.F.R. app. § 1630.2(o). These regulations comport with this court’s insistence that ‘[f]or federal employers, nondiscrimination requires more than mere ‘equal treatment’ of disabled employees and job applicants, and encompasses an affirmative duty to meet the needs of disabled workers and to broaden their employment opportunities.'” [Citations omitted]

Accordingly, the court remands the case for further development of the record on this issue.