Lawsuit alleging agency failed to accommodate disability tossed

A Minnesota state agency has prevailed in a failure-to-accommodate and retaliation suit brought by a former employee who has a narcolepsy diagnosis. In Deanna Fosness v. Minnesota Sex Offender Program, filed May 26, 2023, the U.S. District Court for the District of Minnesota threw out the employee’s claim.

Deanna Fosness was employed as a special teacher with the Minnesota Sex Offender Program (MSOP). Fosness struggled with fatigue for many years, but it was not until 2015 that she was diagnosed with narcolepsy. Each night, she requires 10 to 16 hours of sleep.

While Fosness’ job performance itself was not affected by her narcolepsy, it did cause Fosness to arrive late for work. However, when Fosness arrived late, she would make up that time by “flexing” her time — that is, making it up what she missed at the beginning of her shift later in the shift. This was apparently not an issue with Fosness’ supervisor.

Fosness’ doctor recommended she work four 10-hour shifts per week instead of five 8.5-hour shifts, allowing Fosness to get more sleep. Fosness asked her supervisor for an accommodation, but it was denied. Subsequently, Fosness filed a Charge of Discrimination with the EEOC. In the 2017 charge, Fosness alleged that her employer had not accommodated her disability. However, the MSOP approved the accommodation a couple of months later.

Following this modification, Fosness alleged that her employer’s attitude toward her began to change. While her employer previously approved her requests to attend professional development training, Fosness claimed that those were denied after the modification. A couple years later, Fosness requested three months of professional development leave to attend summer classes at Minnesota State University, Mankato, which is where Fosness was pursuing a Ph.D. MSOP denied the request citing staffing needs and the impact on client program.

Two weeks after this request was denied, Fosness resigned from her position. She initiated action against MSOP in July 2020, alleging failure to accommodate in violation of the ADA and Minnesota Human Rights Act, as well as retaliation in violation of the ADA. Fosness claims that she was forced to leave her position, preventing her from retiring when she intended and losing benefits. She also argued that she never received all the accommodations requested. Defendants moved for summary judgment.

Fosness alleged that MSOP failed to accommodate her because, although they did grant her request for work four days a week, they did not accommodate her disability fully as they did not allow her to flex her time. MSOP responded by arguing that Fosness never explicitly asked for flex time as part of her accommodation. However, they also maintained that, had Fosness explicitly asked for it, they would have denied it. As classes began promptly at 8 a.m., MSOP expressed concerns about Fosness’ ability to adequately prepare for the class.

However, Fosness replied that her doctor mentioned that her start time should be between 7:30 and 8:30 a.m. the four days a week she worked.

The court rejected Fosness’ argument: “[T]he doctor’s mention of a start time within that range is not the same as allowing her to arrive anytime within that timeframe and allowing her to extend her workday as needed,” the court wrote. It reasoned that the request to flex time was never a specific part of Fosness’ accommodation request. The court granted summary judgment on the failure to accommodate claims.

The court also granted summary judgment for MSOP on the retaliation claims. Fosness cited her denial of flex time, different approaches to professional development requests, and constructive discharge as examples of adverse actions. However, the court determined that the defendants provided legitimate reasons for their actions. Regarding flex time, the court found that it would not have benefited the program for Fosness to flex her schedule. As far as the training time-off requests, the court found that a new policy requiring Fosness to formally request time off for training was a minor annoyance rather than an injury. Nor did the court find constructive discharge, concluding that Fosness resigned on her own after being denied the ability to take time off to take summer classes rather than being actively pushed out.

Similarly, the court was unpersuaded by Fosness’ arguments that there was pretext. Fosness alleged that because she was denied permission to bring a metal ice cream scoop, and prohibited from bringing plants into the library, there was evidence of pretext. The court determined that these were petty slights and did not constitute evidence of pretext.