A critical issue for many persons who suffer any illness is recovery and treatment. That comes as no surprise. Yet, it seems to surprise many courts. The issue often arises when the employee asks to work from home. The employee and his/her doctor may not know to any degree of certainty how long the recovery will last or how the patient will react to particular forms of treatment. In Credeur v. State of Louisiana, No. 16-30658 (5th. Cir. 6/23/2017), the employee was an Assistant Attorney General for the state of Louisiana. Renee Credeur had a kidney transplant. That resulted in complications. She worked from home for several months, apparently without any problem. She then needed more time, so she used her FMLA leave, 12 weeks of unpaid leave on an intermittent basis.

When she still had not recovered, she asked to work from home as an ADA accommodation. A few months later in October, 2013, the employer said she could work from home. Yet, in January, 2014, the AG’s office asked for an accounting of her work hours and certification of her illness. Her three doctors gave different opinions, one stating she could work at the office no more than 3-4 hours per day, a second doctor saying she could work at the office “as tolerated,” and a third doctor saying she should not work at the office for another six months. Ms. Credeur told her employer her endurance was improving and she could now travel via airplane to depositions and attend hearings.

Later,  in February, 2014, Ms. Credeur’s supervisor transferred some of her files due to her reduced work load. And, she was told to use leave time to work from home. That requirement essentially meant she could no longer work from home. In March, 2014, she was given a “last chance” agreement to sign. She had to improve her performance, which referred to her attendance issues and other new, subjective performance issues, or suffer consequences. The “last chance” agreement specifically said she could not work from home.

Ms. Credeur’s condition worsened and she requested to work from home, again. The AG denied her request in August, 2014. At this point, her doctors had said she could not attend hearings, depositions and the like. She provided a medical note for her absences and then returned to work in late August, 2014. Reading between the lines, I interpret that to mean she returned to work because she had to. She worked until December and then resigned. She later filed suit against the AG’s office.

This is one of those rare cases that addresses working from home head on. The court credited the employer’s claim that to work as a litigation attorney, she had to work at the office. The plaintiff responded that she worked from home successfully for many months. She disputed the employer’s claim that face-to-face meetings with co-workers were essential. One supervisor said it was possible to work from home on a temporary basis. While another supervisor testified that to work as part of a team, she needed to work at the office frequently “to bounce ideas” off other members of the team. The court mentioned that Credeur “unilaterally” declared she had no problems when she worked from home earlier. The court also noted that she offered her own “unsupported” testimony that she need not work from the office every day. The panel cited EEOC v. Ford Motor Co., 782 F.3d 753 (6th Cir. 2015) (en banc) for the proposition that a plaintiff’s unsupported testimony that she could work from home does not create an issue of material fact. The panel also cited an unpublished decision, Rodriguez v. Mrs. Baird’s Bakery, 111 F.3d 893 (5th Cir. 1997) for the holding that subjective belief that discrimination occurred cannot create a material issue of fact.

The court was troubled by the lack of support for Ms. Credeur’s claims about her job. It also may be that the court felt qualified to discuss the possible limitations for the job of medical malpractice litigation attorney. But, this requirement that Ms. Credeur provide some corroboration of her observations about her job violates most rules of evidence. It also conflicts with the court’s recent decision in recent cases, such as  Heinsohn v. Carabin & Shaw, 832 F.3d 224 (5th Cir. 2016) (cautioning against requiring greater credibility from the plaintiff than from the defendant); Burton v. Freescale Semiconductor, Inc., 798 F.3d 222 (5th Cir. 2015); Tolan v. Cotton, 134 S.Ct. 1861 (2014) (finding it to be error to disregard the plaintiff’s testimony simply because it is “self-serving”).

A plaintiff is a witness like any other. There is nor rule of evidence that requires the plaintiff to have corroboration. If the court wa snot sure, it should have denied the motion for summary judgment. What the essential functions of a job are is a question for the jury.

The panel devoted much of its opinion to discussing whether the job was capable of working from home or not. It discussed testimony from co-workers that they or others had previously worked from home for brief times. Surely, so much discussion regarding what the testimony says about that issue would suggest that this is a fact question best decided by the jury.

The Fifth Circuit affirmed the grant of summary judgment. There are few cases finding working from home to be a viable accommodation. The few that do find telecommuting to be viable almost always involve a situation in which the telecommuting worked previously for some period of time, but was then cancelled by a new supervisor. See, e.g., DeRosa v. National Envelope Corp., 595 F.3d 99, 104 (2d Cir. 2010) (Acknowledging the employee’s prior accommodation of two years working from home). See the Credeur v. State of Louisiana decision here.

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