     Case: 14-31338      Document: 00513703597         Page: 1    Date Filed: 10/04/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals

                                      No. 14-31338
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          October 4, 2016

JUDY SCHILLING,                                                            Lyle W. Cayce
                                                                                Clerk
              Plaintiff–Appellant,

v.

LOUISIANA DEPARTMENT OF TRANSPORTATION AND
DEVELOPMENT,

              Defendant–Appellee.




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:12-CV-611


Before JONES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Judy Schilling appeals following a trial in which the
jury returned a verdict for Defendant–Appellee Louisiana Department of
Transportation and Development (“DOTD”) on Schilling’s claim under the
Americans with Disabilities Act (“ADA”). For the reasons stated below, we
AFFIRM.



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                              I. BACKGROUND
      There is no dispute that Schilling is disabled within the meaning of the
ADA. During her employment, Schilling requested several accommodations.
      In 2007, Schilling requested a handicapped parking spot. Following this
request, DOTD converted a spot into a handicapped space for her. Schilling,
however, characterizes this accommodation as unreasonable because that spot
was far from her office, which was located in the rear of the building. DOTD
provided a handicapped parking space in the rear of the building around
October 2009.
      Also in 2007, Schilling requested that a door be installed on the office
that she shared with another employee because ambient office noise distracted
her. While this request was initially denied, DOTD sought to accommodate
Schilling’s needs by instructing other employees not to make as much noise
and by closing the door to the main hallway. One of Schilling’s supervisors,
Connie Standige, testified that she offered Schilling a different office with a
door, which Schilling declined. DOTD finally installed a door in March 2011.
      In March or April 2008, Schilling requested that she be allowed to wear
slippers or slipper-like shoes to help with her pain and balance. A note from
one of her doctors supported this request and recommended that she be allowed
“to wear light weight, non-binding foot wear, something slipper like. This is to
keep any compression off of her legs and feet, while seated at a desk.” DOTD’s
formal safety policy explicitly prohibited employees from wearing slippers at
the workplace. One of Schilling’s supervisors testified that in April 2008, she
gave Schilling permission to wear slipper-like shoes while at her desk, and “soft
rubber sole” shoes in the hallways. Schilling testified that she began wearing
slippers at her desk before asking for permission to do so, and continued
wearing slippers after April 2008. She also testified that she was never
disciplined for wearing slippers at work. Nevertheless, Schilling contends that
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                                  No. 14-31338
DOTD failed to accommodate her request because it did not amend its formal
workplace policies to allow for her to wear slippers at her desk and did not
permit her to wear slippers in all areas of the workplace.
      In May 2012, Schilling was terminated after she exhausted her available
leave under the Family Medical Leave Act. After filing a claim with the Equal
Employment Opportunity Commission (“EEOC”) and receiving a right-to-sue
letter, Schilling filed suit in Louisiana state court alleging that DOTD failed to
timely provide her requested accommodations and that she was subjected to a
hostile work environment in retaliation for requesting accommodations. DOTD
removed the case to federal court. After several of her claims were dismissed
at summary judgment, Schilling’s case proceeded to trial.
      Prior to trial, Schilling submitted Joint Proposed Jury Instructions. As
part of the instruction for failure to accommodate under the ADA, the proposal
included several instructions regarding the effect of an employer’s alleged
delay in addressing an employee’s requests for accommodation. Specifically,
these proposed instructions provided:
      7. “A party that obstructs or delays the interactive process is not
      acting in good faith.” “An absence of good faith, including
      unreasonable delays caused by an employer, can serve as evidence
      of an ADA violation.”
      8. The EEOC Enforcement Guide, at 10 mandates that “an
      employer respond expeditiously to a request for a reasonable
      accommodation.”
      9. An employer may also violate the ADA where the employer’s
      failure to reasonably accommodate an employee’s disability causes
      the employee’s condition to worsen or to be aggravated.
      10. Unnecessary delays can result in a violation of the ADA. Delay
      alone may give rise to liability for failure to accommodate even
      where a reasonable accommodation ultimately is provided. Factors
      to consider in determining whether the accommodation was
      unnecessarily delayed include: the reasons for delay, the length of
      the delay, how much the employer and the employee contributed
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       to the delay, the employer’s actions during the delay, and whether
       the requested accommodation was simple or complex to provide.
Over Schilling’s objection, the district court declined to give these instructions.
As the district court explained, it refused to give the proposed instructions
because they were not based on Fifth Circuit case law and were already covered
by the court’s other instructions.
       Following a three-day trial, the jury returned a verdict in favor of DOTD.
Schilling filed a motion to alter the judgment or, in the alternative, for a new
trial, arguing that (1) the verdict was clearly erroneous and (2) the district
court erred by refusing to give the above jury instructions. The district court
denied Schilling’s motion and this appeal followed.
                                   II. DISCUSSION
       On appeal, Schilling challenges the district court’s decision not to give
her requested jury instructions regarding delay. 1
A.     Standard of Review
       “This Court reviews a district court’s refusal to provide a requested jury
instruction for abuse of discretion.” Kanida v. Gulf Coast Med. Pers. LP, 363
F.3d 568, 578 (5th Cir. 2004) (quoting United States v. McClatchy, 249 F.3d
348, 356 (5th Cir. 2001)). We afford district courts “substantial latitude . . . in
describing the law to the jury.” United States v. Wright, 634 F.3d 770, 774 (5th
Cir. 2011) (quoting United States v. Williams, 610 F.3d 271, 285 (5th Cir.
2010)). And we will only reverse a district court based on its decision not to
give a requested instruction if that instruction “1) was a substantially correct
statement of law, 2) was not substantially covered in the charge as a whole,
and 3) concerned an important point in the trial such that the failure to


       1  In Schilling’s opening brief, she also challenges the jury’s verdict as being
unsupported by the evidence and thus clearly erroneous. In her reply, however, she states
that she “does not seek reversal of the jury verdict based on insufficiency of the evidence.”
Schilling has accordingly abandoned this argument, and we will not address it here.
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instruct the jury on the issue seriously impaired the [party’s] ability to present
a given [claim].” Kanida, 363 F.3d at 578 (alterations in original) (quoting
McClatchy, 249 F.3d at 356).
B.     Analysis
       The district court did not abuse its discretion by declining to give the
proposed jury instructions at issue here. Essentially, the proposed instructions
sought to direct the jury that “[d]elay alone may give rise to liability for failure
to accommodate even where a reasonable accommodation ultimately is
provided.” DOTD argues that because this “delay” instruction had no basis in
Fifth Circuit precedent, it was not a substantially correct statement of law.
Indeed, the proposed instructions were all drawn from out-of-circuit decisions
and nonbinding EEOC guidance, discussed below. Schilling concedes that her
proposed delay instruction was not based on Fifth Circuit precedent, but asks
us to decide this issue as res nova.
       Schilling’s proposed delay instruction was not a substantially correct
statement of law in this Circuit such that it was abuse of discretion to exclude
it. This does not mean the instruction was necessarily incorrect, although we
do not decide whether delay alone may rise to the level of an ADA violation. By
way     of   background,         an   employer’s   failure   to    make     “reasonable
accommodations”        for   a    disabled   employee    may      constitute   unlawful
discrimination under the ADA. 42 U.S.C. § 12112(b)(5)(A). For an employer
“[t]o determine the appropriate reasonable accommodation it may be necessary
. . . to initiate an informal, interactive process with the [disabled employee].”
29 C.F.R. § 1630.2(o)(3). We have held that once an employee has made a
request for an accommodation of her disability, “the employer is obligated by
law to engage in an ‘interactive process’: ‘a meaningful dialogue with the
employee to find the best means of accommodating that disability.’” Equal
Emp’t Opportunity Comm’n v. Chevron Phillips Chem. Co., 570 F.3d 606, 621
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(5th Cir. 2009) (quoting Tobin v. Liberty Mut. Ins. Co., 433 F.3d 100, 108 (1st
Cir. 2005)). “When an employer does not engage in a good faith interactive
process, that employer violates the ADA . . . .” Id.
      Several courts have elaborated that an employer’s (or employee’s) delay
in providing reasonable accommodation may show a lack of good faith in the
interactive process. See, e.g., Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130,
1135 (7th Cir. 1996) (“A party that obstructs or delays the interactive process
is not acting in good faith.”). In this way, “unreasonable delay may amount to
a failure to provide reasonable accommodations.” Valle–Arce v. P.R. Ports
Auth., 651 F.3d 190, 200 (1st Cir. 2011). In line with this authority, EEOC
enforcement guidance states that “[u]nnecessary delays can result in a
violation of the ADA.” Equal Emp’t Opportunity Comm’n, Enforcement
Guidance: Reasonable Accommodation and Undue Hardship Under the
Americans with Disabilities Act (2002).
      This Court has discussed only in dicta whether delay alone may
constitute an ADA violation. In Loulseged v. Akzo Nobel Inc., 178 F.3d 731 (5th
Cir. 1999), we suggested that in certain circumstances “[a]n employer’s
delaying of the [interactive] process . . . might create liability” under the ADA.
Id. at 737 n.6. We cautioned, however, that “[n]othing in the regulations or the
cases indicates to us that an employer must move with maximum speed to
complete this process and preempt any possible concerns.” Id. at 737.
Therefore, although our precedent is not opposed to Schilling’s delay
instruction, neither is the instruction required by it.
      A district court may only abuse its discretion when it fails to instruct the
jury on the law of the circuit. See Ratliff v. City of Gainesville, 256 F.3d 355,
363 (5th Cir. 2001) (holding that the district court did not err in rejecting a
“taint” instruction not required by our precedent). Because Schilling’s proposed
instructions were not based on this Court’s precedent, the district court did not
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                                   No. 14-31338
abuse its discretion by declining to give them to the jury. Thus, we affirm the
district court’s denial of Schilling’s motion for a new trial.
      Our conclusion is supported by the fact that Schilling was able to—and
did—argue at trial that DOTD’s delay violated the ADA. See Kanida, 363 F.3d
at 579 (explaining that counsel could argue an inference of pretext even if the
judge did not include a “permissive pretext” instruction). She raised this
argument in her opening statement. She testified about the time that elapsed
between her requests for accommodation and when they were realized. She
questioned DOTD employees about how long it took to accommodate her
requests. And most importantly, undue delay was one of Schilling’s principal
themes at closing. For example, Schilling’s counsel stated: “I want to remind
the jury as to what we are talking about here are reasonable accommodations.
That’s the key word, reasonable. If it’s not reasonable they have broken the
law. And so the delay . . . is important in determining whether the defendants
acted reasonably.” Schilling later argued that DOTD’s accommodations, “if
provided at all[,] . . . were provided too late to be effective.” While it is possible
that counsel’s arguments were not as impactful as an instruction from the
judge would have been, Schilling clearly presented her claim that DOTD’s
unreasonable delay violated the ADA. Accordingly, the district court’s refusal
to give Schilling’s specific instructions regarding delay did not seriously impair
her ability to present this claim to the jury.
      In addition, the delay instruction was arguably covered by the jury
instructions as a whole. The district court instructed the jury in relevant part:
      When a qualified individual with a disability requests a reasonable
      accommodation[,] the employer and employee should engage in a
      flexible interactive discussion to determine the appropriate
      accommodation. The interactive process is an informal one
      requiring input not only from the employee but also from the
      employer. The process requires communication and good faith
      exploration. A meaningful interactive process should involve
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                                 No. 14-31338
       dialogue between the employer and the employee in which they
       both communicate with each other with the goal of determining an
       appropriate and reasonable accommodation.
             When an employer fails to engage in a good faith interactive
       process which leads to a failure to reasonably accommodate an
       employee, the employer violates the Americans with Disabilities
       Act.
Schilling argues that the above instructions implied that failure to engage in
a good faith interactive process only violates the ADA when there is no
accommodation at all. These instructions accurately summarized the law of
this Circuit regarding the interactive process, however. Indeed, undue delay is
only an ADA violation to the extent it renders an accommodation (if any)
unreasonable; the statute provides no separate claim for undue delay. As this
Court has observed, the manner in which an employer engages in the
interactive process and the speed at which that process occurs inform whether
the employer has acted in good faith. See Loulseged, 178 F.3d at 737 & n.6.
These “good faith” instructions therefore substantially encompassed Schilling’s
claim that DOTD’s undue delay in accommodating her disabilities violated the
ADA.
                             III. CONCLUSION
       For the foregoing reasons, the district court is AFFIRMED.




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