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Kiburz v. England

July 13, 2008


The opinion of the court was delivered by: Yvette Kane, Chief Judge United States District Court

(Chief Judge Kane)


Plaintiff Howard Kiburz brought this action under the Rehabilitation Act, 29 U.S.C. § 701 et seq., alleging that his former employer, the United States Department of the Navy ("Navy"), discriminated against him on the basis of his disability-severe arthritis in the back and spine. Kiburz alleges that the Navy failed to provide him with two reasonable accommodations: a request to work from home and a request for a special chair. The Navy argues that his first request was unreasonable because he would not be able to fulfill the essential functions of his job from home. It argues that his second request was actually provided, but that despite the Navy's efforts, Kiburz could not be satisfied. Kiburz also claims that the Navy's alleged failure to accommodate him constituted a constructive discharge.

Before the Court is the Navy's motion for summary judgment. (Doc. No. 38.) The parties have fully briefed the motion. For the reasons that follow, the motion will be granted.


A. Factual Background*fn1

Before the termination of his employment at the Navy Supply Information Systems Activity, formerly known as the Navy Fleet Material Support Office ("FMSO"), in Mechanicsburg, Pennsylvania, Plaintiff Howard Kiburz worked for the Navy as an Information Technology Specialist. SMF ¶¶ 4-5. In that capacity, Kiburz performed a variety of duties related to relatively complicated computer programming in Information Technology ("IT"). SMF ¶ 19. Specifically, as described in his job description, Kiburz performed the following principal duties: he worked on "complicated IT special projects and/or with significant IT design, modification and/or non-routine maintenance assignments [which involved] responsibility for one or more applications/operations (A/Os) (or their equivalents) which are complicated by extensive/significant interactions with other IT systems/applications/operations"; he provided "technical advice/assistance to customers/sponsor, user representatives, subject-matter experts and IT personnel regarding a wide variety of IT matters"; and he developed "problem resolutions, recommendations or other products related to IT special projects, unique maintenance situations and/or design/modification assignments." R. 196-202; SMF ¶ 21.

Between 1998 and 1999, Kiburz began to miss work frequently due to back pain caused by severe arthritis in his spine. SMF ¶ 27. Kiburz asked his supervisor, Ed Ferguson, for a more flexible work schedule. SMF ¶ 28. Ferguson suggested that Kiburz submit a written request with the FMSO for a schedule that would better suit Kiburz. Id. In September 1999, Kiburz requested that he be allowed to work a schedule with a starting time window of 6:30 a.m. to 12:00 p.m. and a departing time window of 3:30 p.m. to 8:30 p.m., but with no more than an eight-hour workday. SMF ¶ 31. Kiburz also requested that he be permitted to work on weekends, if necessary. Id. FMSO approved of Kiburz working a flexible schedule, but not the hours suggested by him; rather, FMSO agreed to permit Kiburz to have start times from 6:30 a.m. to 11 a.m. and stop times between 3:30 p.m. to 7:30 p.m., Mondays through Fridays. SMF ¶ 33.

As Kiburz's back condition worsened and as he experienced intermittent periods of severe pain, he was only able to work a few days per week. SMF ¶¶ 38, 39, 41. As such, Kiburz emailed his new department supervisor, Don Humphrey, about the possibility of disability retirement. SMF ¶ 40. He also indicated that he would "be willing to take home a [computer] and give [working at home] a try. . . . [but that] [i]f this work at home doesn't work out successfully then it will need to be documented that there was an inability to make a reasonable accommodation for me." R. 214.

Kiburz's email was then forward to Starr Lehman, who worked in the Equal Employment Oportunity Office/Workforce Diversity Office and handled reasonable-accommodation requests by employees with medical needs. SMF ¶¶ 45-46. Lehman replied to Kiburz, indicating that he would need to complete additional paperwork, including an employee's statement and a physician's statement, in order to make a formal request to work from home. SMF ¶ 47.

In the meantime, Kiburz's continued to miss work due to his back condition. Humphrey documented that between June 1999 and July 2000, Kiburz had used 475 hours of annual leave, 92 hours of sick leave, and 159.5 hours of leave without pay, with his work attendance record only getting worse. SMF ¶ 51. Humphrey believed that Kiburz's "lack of attendance, although any isolated incident or absence or incidents of absences in total do not represent unsatisfactory work performance (read that his current workload is low and he is just making required delivery dates), has caused problems." SMF ¶ 63; R. 216.

1. Work-from-home Request

In July 2000, Kiburz submitted to Lehman his first proposed accommodation-to be permitted to work from home-pursuant to the Navy's Flexiplace program.*fn2 SMF ¶ 59. Attached to the proposal were documents from Kiburz's doctor, Dr. MacKellar, informing Lehman of the severity of Kiburz's condition and that it required almost complete immobility for pain control. SMF ¶¶ 66-69. Dr. MacKellar stated that the frequency and length of the episodes was extremely variable and unpredictable, and that Kiburz's condition would likely worsen over time. Id. Based on these submissions, and reasoning that Kiburz would be unable to perform his duties even if he were permitted to work from home, the Workforce Diversity Office denied his proposed request. SMF ¶¶ 72-73.

On January 31, 2001, Kiburz again requested permission to work from home. SMF ¶ 87. Kiburz again attached a letter from Dr. MacKellar informing Lehman of the state of Kiburz's back condition. SMF ¶¶ 87-89. The Workforce Diversity Office again denied the request to work from home. SMF ¶¶ 91, 95. It was determined that Kiburz's request lacked medical documentation indicating that, "as a full-time employee, Mr. Kiburz could successfully perform his duties contributing to FMSO's mission by working at home on an intermittent basis, at his convenience." RSMF ¶ 92.

2. Orthopedic-Chair Request

In addition to his work-from-home request, Kiburz proposed a second accommodation-to obtain a more orthopedic chair for use at work, specifically a chair that was "fairly plush, has a high straight back and most important the high back inclines back so my spine is not in a vertical position." SMF ¶ 60; R. 225. On September 19, 2000, Kiburz's chair request was approved. SMF ¶ 73.

Kiburz was put in touch with Wendy Beecher, the Health and Occupation Specialist, who assisted employees in chair selections. SMF ¶¶ 74, 99. Beecher asked Kiburz to submit to her specifications specific to his condition from Kiburz's doctor for a chair that would enable him to work comfortably at his computer. SMF ¶ 100. In February 2001, Kiburz submitted to Beecher a recommendation from Dr. MacKellar for an appropriate chair. Id. Dr. MacKellar recommended a "high-backed, tilting, executive type chair with significant padding on both back and seat areas with arm rests on each side." RSMF ¶ 101.

In response to Dr. MacKellar's recommendation, Beecher permitted Kiburz to seek a suitable chair. SMF ¶¶ 102, 165. Kiburz's search was to no avail and, subsequently, Beecher attempted to find Kiburz a suitable chair. SMF ¶ 171. Beecher's efforts included her performing an ergonomic evaluation of Kiburz's work station, taking Kiburz's doctor's description of an appropriate chair, taking Kiburz's description of the chair, and contacting various venders to try to find chairs that could accommodate Kiburz. SMF ¶¶ 172, 173. Despite Beecher's efforts, Kiburz did not ...

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