                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-1228

                                 Filed: 21 March 2017

Wake County, No. 14 CVS 9915

JENNIFER RITTELMEYER, Petitioner

               v.

UNIVERSITY OF NORTH CAROLINA at CHAPEL HILL, Defendant.


      Appeal by petitioner from order entered on or about 19 June 2015 by Judge

Paul G. Gessner in Superior Court, Wake County. Heard in the Court of Appeals 21

February 2017.


      Edelstein and Payne, by M. Travis Payne, for petitioner-appellant.

      Attorney General Joshua H. Stein, by Special Deputy Attorney General
      Kimberly D. Potter, for respondent-appellee.


      STROUD, Judge.


      This case arises from petitioner’s appeal from a trial court order affirming the

administrative law judge’s decision to affirm respondent’s termination of petitioner’s

employment.         Because the administrative law judge’s order was based upon

substantial evidence and was in accord with the applicable law, and the trial court

conducted a proper review of the administrative law judge’s order, we affirm the trial

court order.

                                     I.    Background
                    RITTELMEYER V. UNIV. OF N. CAROLINA AT CHAPEL HILL

                                          Opinion of the Court



        This summary of the facts is based upon the administrative law judge’s (“ALJ”)

findings of fact in the final agency decision (“decision”). The ALJ made 260 findings

of fact -- approximately 40 pages, single-spaced -- detailing the history of petitioner’s

light sensitivity all the way back to her “late teens” when she first noticed the

problem, through her employment with respondent, and up to the inception of her

claim. Upon petition to Superior Court, the trial court found that there was

substantial evidence to support all of the findings of fact. Petitioner has, in one

cursory final issue, challenged many of these extensive findings of fact on appeal, but

because she has failed to properly present this argument on appeal, as discussed

below, we accept the ALJ’s findings of fact as binding upon this Court.1 Garrett v.

Burris, 224 N.C. App. 32, 34, 735 S.E.2d 414, 416 (2012), aff'd per curiam, 366 N.C.

551, 742 S.E.2d 803 (2013) (“Plaintiff does not challenge any of the trial court’s

findings of fact as unsupported by the evidence.                   These findings, therefore, are

binding on appeal.”).         The decision shows that petitioner’s employer took many

actions to accommodate her light sensitivity throughout the entire process of their

working relationship. We will not list every single accommodation respondent made

for petitioner for the sake of brevity but will note many of them.




        1Petitioner notes in her statement of the facts in her brief that she has relied upon “Petitioner's
Proposed Decision submitted at OAH, which is included in the Rule 11(c) Supplement[.]” (Emphasis
added.) As discussed below, we deem petitioner’s arguments regarding the findings of fact abandoned,
and we have relied upon the ALJ’s order.

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                                        Opinion of the Court



      In August of 2002, petitioner was hired by respondent’s Department of

Medicine and Genetics to work as a part-time, temporary administrative assistant.

Petitioner informed Ms. Sikes, petitioner’s supervisor, that exposure to fluorescent

lights caused her to have migraine headaches.2                 In 2004, petitioner became a

permanent employee as a social clinical research assistant. Between approximately

2002 and 2004, Ms. Sikes informally accommodated petitioner’s light sensitivity by

allowing her to work in an office with a window where petitioner could use the natural

light and avoid turning on her overhead lights.                  In 2005, petitioner’s entire

department moved to a new building where petitioner’s new work station was in a

cubicle. To accommodate petitioner, the overhead lights in the general work area

remained off and this lack of lighting did to some extent affect other employees. In

2010, the department was scheduled to move again and Ms. Sikes suggested

petitioner check out the new workspace and allowed her “to design her own work

space[.]”

      In February 2010, the department moved and for “the first time all [of] the

genetic counselors were working together in one shared space.”                        Most of the

employees were in cubicles. Petitioner was working in a cubicle directly across a

corridor from Ms. Sikes’s office. In her office, Ms. Sikes used only one of her two sets

of overhead florescent lights. The overhead lights over the entire cubicle area were



      2   We have used pseudonyms for the other employees to protect their privacy.

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initially kept off, while another department, sharing the same overall space but not

grouped with petitioner’s department, kept the lights on over their workspace.

Although the main lights over petitioner’s workspace were turned off, petitioner was

still exposed to fluorescent lights from the other department’s lights, the emergency

lights, bathroom lights, and lights by the elevator. Respondent then disengaged some

of the emergency lights around petitioner’s cubicle. Other employees began using

floor and desk lamps in their workspaces to accommodate the dark conditions.

Petitioner also began complaining about sensitivity to fragrances, so respondent

posted signs asking the employees to cease wearing scented products. Overall, during

the time period from moving into the new space in February of 2010, until November

of 2011, the department effectively completed its work.

      During this same time period, respondent also had to make constant

adjustments to the lighting due to complaints by other employees that their work

areas were too dark. Petitioner specifically complained that she had headaches

caused by the supplemental lighting in the cubicle adjoining hers, where Ms. Lee

worked. Because it was closest to petitioner’s cubicle, Ms. Lee’s cubicle was the

darkest workspace. Ms. Lee tried different combinations of lighting and changed

light bulb wattages, but petitioner remained dissatisfied.

      In November of 2011, while petitioner was on vacation and without Ms. Sikes’s

knowledge, Ms. Lee submitted a work order to have the overhead lights above



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                                   Opinion of the Court



petitioner’s cubicle and directly to the left and right of it disabled. Once this was

done, the department began using the overhead lights again since the overhead lights

in petitioner’s immediate vicinity were disabled. On 19 November 2011, petitioner

went to work but eventually got a headache that lasted until the next day. On 21

November 2011, petitioner informed Ms. Sikes that the new lighting conditions would

not work for her. Ms. Sikes contacted respondent’s disability office for assistance. A

formal request from petitioner was needed to begin disability accommodations, so on

27 November 2011, petitioner expressed her desire to move forward with the formal

accommodation process.

      On 30 November 2011, Ms. Phillips, the employee working with petitioner and

respondent from the disability’s office, responded to petitioner about beginning the

formal process of accommodation. On 6 December 2011, petitioner submitted a form

to Ms. Phillips requesting accommodations and provided a letter from her doctor

regarding her sensitivity to light. Ms. Phillips began corresponding with many

individuals about accommodations, and during this time petitioner asked on multiple

occasions that all overhead lights be turned back off, but this request was not initially

allowed. Ms. Phillips then suggested perhaps petitioner could work from home, but

petitioner refused. In December of 2011, Ms. Lee was moved to a different workspace

so that all of the lights could remain off while petitioner was at work.




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                                   Opinion of the Court



      On 12 January 2012, respondent installed panels on top of petitioner’s cubicle

to block out the overhead lights from other areas. Tack boards were then added on

top of the panels to block more light. The lights immediately above and around

petitioner’s cubicle remained disengaged, but the following day, petitioner said the

modification did not work. On 17 January 2012, petitioner again requested the

overhead lights in the entire area remain off until a solution could be found. Ms.

Phillips informed Ms. Sikes that petitioner would come back to work on 19 January

2012, if the lights were turned off for her, but Ms. Sikes did not agree.

      Petitioner then refused to allow Ms. Phillips to speak to her healthcare

provider about other possible accommodation options and rejected the idea of room-

darkening glasses. Petitioner also again rejected the idea of working from home. On

20 January 2012, taller partitions were installed to the cubicle to raise the walls; new

tack boards were also installed. Petitioner’s cubicle walls were approximately nine

feet high at this point.

      During January and February of 2012, petitioner attended work sporadically

and suffered from a migraine “essentially every day she tried to work[.]” During

February of 2012, petitioner still refused to work from home or to allow Ms. Phillips

to speak with her healthcare provider. On 10 February 2012, solid panels were

installed from the floor to the ceiling on petitioner’s cubicle; part of the cubicle had




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                                  Opinion of the Court



been left open during the prior modification at petitioner’s request because she

wanted to allow natural light from that area.

       On 14 February 2012, petitioner claimed the accommodation did not work,

continued to complain about Ms. Lee’s supplemental lighting, and claimed she could

not walk to areas like the copier and scanner. Respondent then moved the copier and

scanner into petitioner’s “darkened area[.]” Petitioner then requested Ms. Sikes put

up black paper to block the lights from her office, although these lights had never

been a problem before, and she also requested breaks. The next day, on 15 February

2012, all of the cubicle walls were raised to the ceiling; this same day petitioner

requested that the gaps where the walls touched the ceiling be duct taped and that

Ms. Sikes keep her office door closed. Petitioner still believed Ms. Lee’s supplemental

lighting was part of her problem though petitioner was never clear on the source of

her problem and complained about issues which she had originally not mentioned.

       On 17 February 2012, petitioner requested a door and a roof for her cubicle,

but Ms. Phillips declined these accommodations since petitioner’s workspace was now

much darker than it had been before November of 2011 when the formal

accommodation process began.      Also, the additions to the walls already reached the

ceiling.   Petitioner also made modification requests prior to the previous set of

requests even being made. Ultimately in late February 2012, petitioner requested

leave under the Family Medical Leave Act which was approved from 22 February



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2012 to 21 May 2012. The communications regarding modifications continued and

respondent made numerous other modifications.

      On 9 March 2012, petitioner requested a transfer to another position;

respondent denied this request but informed her that she was free to apply for any

position she desired.   During her leave, petitioner wore special room-darkening

glasses to block fluorescent light, although when she had been at work she

complained they made her nauseous. On 21 May 2012, petitioner returned to work

and acknowledged her workspace was much darker than it had been in November of

2011, but petitioner’s sensitivity to light had increased. On 24 May 2012, petitioner

left work early due to a migraine; the next day, petitioner left work at 9:00 a.m. On

29 May 2012, petitioner again requested that Ms. Sikes be required to keep her door

closed, and this accommodation was denied.

      After 1 June 2012, petitioner began reporting to work even less than she had

been despite her workspace being its darkest yet. On 13 June 2012, petitioner

received a written warning due to her absences. On 18 June 2012, petitioner applied

for Family Illness Leave which was approved for two days. Thereafter, petitioner

continued to miss work frequently. On 24 July 2012, respondent gave petitioner four

weeks of leave without pay from 16 July 2012 until 12 August 2012. After 24 July

2012, petitioner stopped communicating with respondent and failed to return to work.




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On 14 August 2012, petitioner’s employment was terminated. Up until this point,

the accommodation process was still ongoing and had not stopped.

      On 4 September 2012, petitioner filed a petition for a contested case hearing

contending that respondent “failed to accommodate” her disability. Petitioner further

explained that respondent

             [g]ave her an unjustified final written warning, and
             terminated her as of August 14, 2012, when she could not
             return to her job following a period of leave without pay.
             Petitioner was unable to return to her job because of her
             Employer’s failure to appropriately and adequately
             accommodate her disability, which resulted in Petitioner
             suffering server[e] migraine headaches and eye pain after
             a short time each day at her job.
                    Petitioner has initiated a grievance concerning her
             discharge and under the UNC Grievance Procedure. That
             grievance raises the issue of lack of just cause for the
             discharge as well as the issues that the discharge violates
             Petitioner’s rights under the Americans with Disabilities
             Act and the Family Medical Leave Act. To the extent that
             grievance is unsuccessful, once the process is complete,
             Petitioner will file a Petition for a Contested Case on those
             matters and move to join them with this petition.

On 31 January 2013, petitioner did just that and filed a petition for a contested case

hearing regarding her grievance which had been denied; petitioner moved to have the

two petitions joined. On or about 26 February 2013, the chief ALJ consolidated the

two petitions.

      Over the course of five days in October and November of 2013, an ALJ heard

petitioner’s case. In June of 2014, the ALJ entered a 60-page decision ultimately



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determining all issues in favor of respondent. On 24 July 2014, petitioner filed a 54-

page petition with the Superior Court for review from the ALJ decision. On 22 August

2014, respondent responded to petitioner’s petition, requesting that the trial court

affirm the ALJ decision. In June of 2015, the trial court entered an order affirming

the ALJ decision. Petitioner appeals.

                              II.     Standard of Review

      When the trial court considered the final agency decision its standard of review

was provided by North Carolina General Statue § 150B-51:

                    (b)    The court reviewing a final decision may
             affirm the decision or remand the case for further
             proceedings. It may also reverse or modify the decision if
             the substantial rights of the petitioners may have been
             prejudiced because the findings, inferences, conclusions, or
             decisions are:
                           (1)    In    violation     of     constitutional
                    provisions;
                           (2)    In excess of the statutory authority or
             jurisdiction of the agency or administrative law judge;
                           (3)    Made upon unlawful procedure;
                           (4)    Affected by other error of law;
                           (5)    Unsupported by substantial evidence
             admissible under G.S. 150B-29(a), 150B-30, or 150B-31 in
             view of the entire record as submitted; or
                           (6)    Arbitrary, capricious, or an abuse of
             discretion.
                    (c)    In reviewing a final decision in a contested
             case, the court shall determine whether the petitioner is
             entitled to the relief sought in the petition based upon its
             review of the final decision and the official record. With
             regard to asserted errors pursuant to subdivisions (1)
             through (4) of subsection (b) of this section, the court shall
             conduct its review of the final decision using the de novo


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             standard of review. With regard to asserted errors
             pursuant to subdivisions (5) and (6) of subsection (b) of this
             section, the court shall conduct its review of the final
             decision using the whole record standard of review.

N.C. Gen. Stat. § 150B-51 (2013).

      As to this Court’s review,

                   [a] party to a review proceeding in a superior court
             may appeal to the appellate division from the final
             judgment of the superior court as provided in G.S. 7A-27.
             The scope of review to be applied by the appellate court
             under this section is the same as it is for other civil cases.
             In cases reviewed under G.S. 150B-51(c), the court’s
             findings of fact shall be upheld if supported by substantial
             evidence.

N.C. Gen. Stat. § 150B-52 (2013). Furthermore,

                    [a]n appellate court reviewing a superior court order
             regarding an agency decision examines the trial court’s
             order for error of law. The process has been described as a
             twofold task: (1) determining whether the trial court
             exercised the appropriate scope of review and, if
             appropriate, (2) deciding whether the court did so properly.
             When, as here, a petitioner contends the agency’s decision
             was based on an error of law, de novo review is proper.

Holly Ridge Assocs., LLC v. N.C. Dep’t of Env’t & Natural Res., 361 N.C. 531, 535,

648 S.E.2d 830, 834 (2007) (citations, quotation marks, and brackets omitted).

      In summary, as this case is being reviewed pursuant to North Carolina

General Statute § “150B-51(c), the [trial] court’s findings of fact shall be upheld if

supported by substantial evidence.” N.C. Gen. Stat. § 150B-52. Alleged errors of law

will be reviewed de novo. Holly Ridge Assocs., LLC., 361 N.C. at 535, 648 S.E.2d at


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834. Furthermore, we will review the trial court order to determine “whether the

trial court exercised the appropriate scope of review and, if appropriate, . . . whether

the court did so properly[.]” Id.

       More specifically, as to our review of the trial court’s scope of review, if the

argument raised before the trial court asserted an error with the agency decision

which was “(1) [i]n violation of constitutional provisions; (2) [i]n excess of the

statutory authority or jurisdiction of the agency or administrative law judge; (3)

[m]ade upon unlawful procedure; [or] (4) [a]ffected by other error of law[,]” we will

review to consider whether the trial court properly used “the de novo standard of

review.” N.C. Gen. Stat. § 150B-51(c). If the argument raised before the trial court

asserted an error with the agency decision which was “[u]nsupported by substantial

evidence admissible under G.S. 150B-29(a), 150B-30, or 150B-31 in view of the entire

record as submitted; or . . . [a]rbitrary, capricious, or an abuse of discretion[,]” we will

review to consider whether the trial court properly used “the whole record standard

of review.” Id.

                      III. Petitioner’s Appeal of Findings of Fact

       Petitioner raises 14 issues on appeal. Petitioner’s brief puts the cart before the

horse by waiting until the last issue to raise any challenges to the findings of fact.

Since findings of fact are required to support conclusions of law, see Beaufort Cty. Bd.

of Educ. v. Beaufort Cty. Bd. of Comm’rs, 184 N.C. App. 110, 116, 645 S.E.2d 857, 861



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(2007) (“The trial court’s findings of fact must support its conclusions of law in order

to enter a lawful order.”), if the findings of fact were not supported by substantial

evidence, see generally N.C. Gen. Stat. § 150B-52, it would have been helpful for

petitioner to challenge those facts before addressing alleged errors of law. After all,

if material facts in the findings were not supported by the evidence, we might never

need to reach at least some of the arguments regarding errors of law. Thus, we will

first address the last issue which purports to challenge many of the ALJ’s findings of

fact. Petitioner’s entire argument is as follows:

                    Petitioner excepted in whole or in part to Findings
             13, 24, 29, 30, 33, 36, 37, 53, 62, 67, 86, 90, 114, 115, 122,
             123, 125, 127, 136, 137, 138, 140, 141, 142, 143, 144, 145,
             146, 152, 189, 196, 203, 205, 209, 221, 222, 258, 259 and
             260 [R. pp. 9-20]. The specifics as to what portion of each
             Finding exception was taken, is set out in each of the
             paragraphs of the Petition. Additionally, evidence that
             each Finding is at least in part wrong, is cited in each of
             the paragraphs. The exceptions to the specified Findings
             are well taken, and under the whole record test they should
             have each been modified or deleted.
                    At pages 17-45 of her Petition [R. pp. 20-48],
             Petitioner set forth 99 additional proposed Findings that
             are supported by the Record. Each of those proposed
             Findings cites to the evidence that supports it. They are all
             appropriate and they should be adopted.

      As tempting as it may be, we decline petitioner’s invitation to comb through

over 1,000 pages of exhibits and her “99 additional proposed Findings” to find the

substantial evidence, or lack thereof, to support the ALJ’s 260 findings of fact or some

portions of those findings; that is petitioner’s job. See generally Carlton v. Oil Co., 206


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                                   Opinion of the Court



N.C. 117, 172 S.E. 883, 884 (1934) (“[O]n appeal the burden is on appellant to show

error[.]”) Petitioner likely relegated her challenge to the findings of fact to her last

issue because even she acknowledges that the changes to the findings she requests

are not really material changes that would make any difference in the legal analysis;

she recognizes this in footnote 22 of her brief:

             The reference to “FOF” is to the Findings of Fact in the
             Decision. While Petitioner has asserted that some findings
             are not supported by the evidence, and that other findings
             should have been made, the Decision appears to contain
             sufficient findings to support the errors of law that
             Petitioner has raised. It is possible this Court could agree
             with Petitioner regarding the legal errors that she has
             raised, and fashion conclusions of law that are supported
             by the existing Findings of Fact.

(Emphasis added.) We also note that our rules impose page limitations on briefs, see

N.C.R. App. P. 28(j), as petitioner pointed out in her statement of the facts, but

petitioner’s argument essentially seeks to add many, many pages to her brief by

referring us to her lengthy submissions to the ALJ and trial court.

      But as to petitioner’s argument which refers us to the other documents in the

record, we have read petitioner’s petition to the trial court from the ALJ order and

most of petitioner’s contentions are not that the ALJ’s findings of fact were not

supported by the evidence, but rather further details petitioner would like to add to

each finding of fact. For example, finding of fact 33 in the ALJ decision was as follows:

                   33. At first, [Ms. Lee] had only one supplemental
             lamp, but that amount of light was insufficient. (Tr. 608).


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             [Ms. Lee] then tried two lamps, but the lighting bothered
             Petitioner, so [Ms. Lee] switched the bulbs to a lower
             wattage. Id. Petitioner continued to express dissatisfaction
             with the lights used by [Ms. Lee].

Petitioner’s exception to this finding was as follows:

                    21. To Finding of Fact #33 in that it does not
             accurately reflect the number and type of supplemental
             lights that [Ms. Lee] had, which were 2 floor lamps and 2
             desk lamps; and it ignores the evidence that every cubicle
             had an under-the-shelf fluorescent light that allowed
             employees to have substantial light shine on matters on
             which they were working, which [Ms. Lee’s] cubicle also
             had.

      In the context of this order, in which many other findings of fact describe the

lighting conditions over time in great detail, we cannot see how the additional details

of exact numbers of lamps and bulb types would have any effect upon the result. As

to petitioner’s highly detailed argument to portions of the findings of fact, we note

that the findings of fact do not need to include every evidentiary fact, but only those

necessary for the ultimate determination. See generally Kelly v. Kelly, 228 N.C. App.

600, 606–07, 747 S.E.2d 268, 276 (2013) (“[T]he trial court need not recite all of the

evidentiary facts but must find those material and ultimate facts from which it can

be determined whether the findings are supported by the evidence and whether they

support the conclusions of law reached.” (citation omitted)).

      Because petitioner has failed to specifically raise an argument on appeal to any

particular finding of fact, has failed to direct us to any particular portion of the record



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to consider a challenge to even one finding of fact, has failed to address any particular

finding of fact as not supported by the evidence, and has failed to raise any issues

with the findings of fact which she contends are material, we conclude that petitioner

has abandoned her argument challenging the findings of fact. We will therefore

accept all of the findings of fact made by the ALJ as supported by substantial

evidence, see generally Garrett, 224 N.C. App. at 34, 735 S.E.2d at 416, and we will

proceed to address petitioner’s legal arguments.

                   IV.    Petitioner’s Appeal of Conclusions of Law

      Petitioner challenges many of the ALJ’s 49 conclusions of law in her remaining

13 issues presented in her brief on appeal. The conclusions of law she challenges are

as follows:

                     9.     In this case, Petitioner was “unavailable” as
              (1) she was unable to return to all the position’s essential
              duties and work schedule due to her medical condition that
              caused headaches and eye pain to be triggered by
              fluorescent lights, and (2) Petitioner and Respondent were
              unable to agree upon a return to work arrangement that
              met the agency’s needs and Petitioner’s medical condition.
              By the date of her separation, Petitioner had no leave time
              to cover her absence.

                    10.    Respondent met the requirements for
              properly separating Petitioner due to her unavailability
              after leave was exhausted. Respondent provided the
              appropriate notifications to Petitioner, awarded her four
              weeks of additional leave once Petitioner informed her
              supervisors that she was applying for short-term disability,
              and informed Petitioner that she was to return to work
              August 13, 2012 if she hadn’t notified them of her short-


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term benefit application.

       11.    The facts are clear and disputed that
Respondent took reasonable efforts to avoid separating
Petitioner from employment by notifying Petitioner that
she had exhausted all applicable leave. Respondent
granted Petitioner four additional weeks of leave without
pay when it was not required to do so. Respondent’s efforts
to avoid separating Petitioner from employment were
unsuccessful, because Petitioner, by her own volition,
ceased contact with Respondent, and failed to return to
work. Petitioner knew she needed to contact [Ms. Sikes] . .
. regarding her short-term disability application, or return
to work by August 13, 2012. Petitioner understood that her
failure to report on August 13, 2012 would result in her
being involuntarily separated from employment due to
unavailability. Yet, Petitioner did not report to work on
August 13, 2012 or contact her supervisors. The
preponderance of the evidence proved that Petitioner’s
actions justified Respondent involuntarily separating
Petitioner from employment.

       12.  Based on a preponderance of the evidence, all
foregoing Findings of Fact and Conclusions of Law,
Respondent    properly   separated    Petitioner   from
employment due to Petitioner’s unavailability after
approved leave was exhausted under 25 NCAC .01C. 1007.

....

      19.    The Fourth Circuit has held that an employee
who cannot meet the attendance requirements of a job is
not considered a qualified individual covered by the ADA.
(See Tyndai v. Nat'l Educ. Ctrs., 31 F.3d 209, 213 (4th Cir.
1994)) In Bell, supra. at 1-3, the US District Court for the
Middle District of North Carolina held that since the
Plaintiff had been absent without leave for months, and
indicated she would continue to be out indefinitely,
Defendant was not as a matter of law required to offer
Plaintiff leave as a reasonable accommodation for her


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disability. Id. That Court further provided that, because
the Plaintiff was not able to perform the essential functions
of any job, the Defendant could not be liable because “an
employer who fails to engage in the interactive process will
not be held liable if the employee cannot identify a
reasonable accommodation that would have been possible.”
Id. at 20. (quoting Wilson v. Dollar Gen. Corp., 717 F.3f[d]
337, 347 (4th Cir. 2013)[.]

       20.    In this case, Petitioner was employed on a
full-time basis by Respondent yet routinely failed to work
even 32 hours in a workweek. (Pet. Exs. 61-62) Her poor
attendance alone means that she is not a qualified
individual. However, she claims that her absences were
due to exposure to fluorescent lighting in her work
environment, even though she was exposed to fluorescent
lighting in the same building for more than one year before
November 2011. Petitioner admitted that after late
November 2011, she would come to work and routinely
notify her supervisor that she had a migraine and had to
leave. Respondent had to rely, necessarily, on Petitioner’s
subjective reports regarding her pain. Even with these
reports, Respondent was still entitled to have reasonable
work expectations for Petitioner’s attendance.

       21.    After returning without any restrictions from
her twelve weeks of FMLA in May 2012, Petitioner
immediately had attendance problems, and was counseled
about the importance of being at work. Respondent made
it clear to Petitioner that she must adhere to her approved
work schedule to “ensure we have the office and phone
coverage necessary during normal/working business
hours.” (Resp. Ex. 79) Petitioner’s attendance continued to
be sporadic, and fell considerably short of either a 32 or 40-
hour workweek requirement. (Pet. Exs. 61 & 62) Since
Petitioner refused to allow Respondent to speak with the
medical providers, Respondent did not know that Dr.
Kylstra meant Petitioner remained unable to work with
fluorescent lights.



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      22.  Petitioner failed to produce any binding legal
precedent to support her allegation that her work
environment aggravated her disability, and caused her
absences.

       23.    Cases in the Fourth Circuit have held that the
cause of Petitioner’s incapacity is irrelevant to whether she
is able to perform the essential duties of her job, especially
in absen[ce of] any bad faith on Respondent’s part. An
employer does not violate the ADA[] when it “discharges an
individual based upon the employee’s misconduct, even if
the misconduct is related to a disability.” Rocha v. Coastal
Neuropsychiatric Crisis Servs. PA, 7:12-CV-2-D, 2013 WL
5651801 (ED NC Oct 16, 2013) (citing Jones [v]. Am. Postal
Workers Union, 192 F.2d 417, 429 (4th Cir. 1999)).

       24.    Discharging an individual because of the
specific attributes of a disease, (for instance, firing an
employee with epilepsy for seizures) is fundamentally
different than firing an employee for disability-related
misconduct that is not itself the disability. Martinson v.
Kinney Shoe Corp.[,] 104 F.3d 683, 686 (4th Cir. 1997) The
Martinson Court further held that, “By contrast,
misconduct - even misconduct related to a disability - is not
itself a disability, and an employer is free to fire an
employee on that basis.” Id. at 686. (citing Tyndall, supra.
at 214). The Tyndall Court ruled that:
       Because     [the    employee’s]     attendance
       problems rendered her unable to fulfill the
       essential functions of her job, and because
       these problems occurred even with [her
       employer’s]      more      than     reasonable
       accommodations for her own disability, we
       hold that she was not a [“]qualified individual
       with a disability[]” as required by § 12111(a)
       of the ADA.
(Tyndall, supra. at 214)[.]

      25.   In the present case, the preponderance of the
evidence proved that Petitioner was not separated from


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                     Opinion of the Court



employment because of her light sensitivity, but she was
separated from employment because she failed to report to
work, an essential element of her office position. For the
foregoing reasons, Petitioner is not a “qualified individual
with a disability.”

       26.    Assuming that Petitioner met the first
criterion of being a qualified individual entitled to the
protection of the ADA, Petitioner still did not establish the
second criterion that Respondent discriminated against
Petitioner. Even if Petitioner is a qualified individual with
a disability, Respondent met its obligations to
accommodate her in a reasonable manner. “Reasonable
accommodation” is defined as:
       modifications or adjustments to the work
       environment, or to the manner or
       circumstances under which the position is
       held or desired, is customarily performed,
       that enable a qualified individual with a
       disability to perform the essential functions of
       that position.
29 C.F.R. § 1630.2(o) (2012) The ADA affirms that the
employer’s judgment is a major factor in the Court’s
assessment of what constitutes a job’s “essential
functions.” 42 USC §12111(8). The reasonableness of an
accommodation is assessed objectively, not subjectively
from the concerns of either party. See Williams v. Channel
Master Satellite Sys., Inc., 101 F.3d 346 (4th Cir. 1996)[.]

       27.     The employer is not required to provide an
accommodation that reallocates an essential job function or
that causes an undue hardship. “Undue hardship” means:
       [Significant difficulty or expense incurred by
       [an employer], taking into consideration
       factors such as the nature and cost of
       accommodation, the type of operation of the
       covered entity, and the impact of the
       accommodation upon the operation of the
       facility, including the ability of other
       employees to perform their duties and the


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     facility’s ability to conduct business.
29 CFR § 1630.2(p)(1)-(2)[.]

       28.    The preponderance of evidence at hearing
established that Respondent engaged in an extensive,
interactive process with Petitioner to determine what
accommodations would be reasonable. Petitioner
consistently requested accommodation that the overhead
lights over the entire Genetics Counseling Group remain
turned off. However, under the applicable case law,
Respondent is not required to provide Petitioner the exact
accommodation requested, but only to provide an
objectively reasonable accommodation, which Respondent
did in this case. Throughout the entire interactive process,
Petitioner was provided an opportunity to participate in
the accommodation process.

       29.   Respondent physically modified Petitioner’s
workspace per Petitioner’s request and specifications.
Respondent deemed Petitioner’s requests - to hang black
curtain as a door to Petitioner’s office, to keep Ms. [Sike’s]
door closed at all times, and to turn off all overhead lights
(pre-November 2011 lighting conditions)- unreasonable
due to the impact on other employees’ abilities to perform
their work, and the unit’s ability to conduct business.
Ultimately, Respondent modified Petitioner’s workspace to
be darker than it was before November 2011. (Resp. Ex. 78)

       30.    The interactive accommodation stopped only
because Petitioner ceased contact with her supervisors
once she left work on July 2, 2012. Petitioner admitted she
knew Respondent would continue to work with her upon
her return to work, but Petitioner failed to return to work
by her own volition.

      31.    A preponderance of the evidence proved that
Respondent provided a series of modifications to
accommodate Petitioner reasonably, while reducing the
impact    on   her   coworkers,    despite   Petitioner’s
unwillingness to allow Respondent to speak with her


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                       Opinion of the Court



treating physicians.

        32.     To the extent Petitioner attempted to bring a
retaliation claim pursuant to ADA, Petitioner failed to
establish a causal link between her seeking
accommodations and her separation. Although Petitioner’s
supervisors, and coworkers certainly expressed frustration
and personal hostility toward Petitioner and with the
lengthy accommodation process, there was no credible
evidence Respondent retaliated against Petitioner for
seeking that accommodation. The evidence at hearing
established that Respondent followed each modification
that . . . [the disability office] suggested.

       33.   Petitioner relied on McMillian v. City of New
York, 711 F.3d 120 (2nd Cir. 2013) to argue that
Respondent must show that the informal lighting
accommodation before November 2011 is no longer
reasonable, and was a[n] undue burden on Respondent.
However, Petitioner’s reliance is misplaced for several
reasons. First, McMillian is not a 4th Circuit case, and
therefore, is not binding in this case, but merely
persuasive. Second, Petitioner failed to cite any North
Carolina or 4th Circuit case applying the ruling in
McMillian in this State. Third, the McMillian Court ruled
that a previous arrangement with an employee could be a
factor in determining what constituted a reasonable
accommodation. It did not rule that the employer was
required to prove that an informal accommodation is
unduly burdensome to the employer before the employer
can remove the accommodation without violating the ADA.

       34.    Despite Petitioner’s argument, a previous
accommodation does not tie the employer’s hands and force
the employer to continue to offer the accommodation. “The
fact that certain accommodations may have been offered by
the County [employer] to some employees as a matter of
good faith does not mean that they must be extended to
Myers [another employee] as a matter of law.” Myers v.
Hose, 50 F.2d 278, 284 (4th Cir. 1995)[.] Similarly, in


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                     Opinion of the Court



Perrin v. Fennell, No. 1:10-CV-810, 2011 US Dist. LEXIS
21730, *1-*6 (ED Va. Mar. 2, 2011), the Fourth Circuit held
that:
       [T]he fact that FLSS [the employer] had previously
       granted Perrin [employee] a similar request is
       irrelevant. An employer’s one time, goo[d] faith offer
       of accommodations does not bind the employer to
       extend similar offers in the future. . . . [s]uch a
       regime would discourage employers from treating
       disabled employees in a spirit that exceeds the
       mandates of federal law.
Id. at *19-*20.

       35.     Based on the above case law, Respondent in
this case is not bound by the ADA to continue to offer
Petitioner the previous accommodation of having all the
overhead lights over the Genetic Counseling Group turned
off. From a policy standpoint, holding employers liable for
prior efforts that went beyond federal law would discourage
them from accommodating above the bare minimum
federal requirements.

      36.    Based on all foregoing Findings of Fact and
Conclusions of Law, Respondent met its obligations to
provide Petitioner with reasonable accommodations under
the ADA.

       37.   For the foregoing reasons, Petitioner failed to
establish that Respondent terminated her from
employment based on her disability. (See EEOC v. Stowe-
Pharr Mill Inc., 216 F.3d 373, 377 (4th Cir. 2000)).

      Retaliation for Requesting an Accommodation

       38. The third issue is whether Respondent
retaliated against Petitioner for requesting an
accommodation pursuant to the ADA.

       39.   The ADA prohibits employers from
retaliating against employees who seek accommodations


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                                  Opinion of the Court



             pursuant to the statute. 42 U.S.C. 12203(a) provides that
             “[n]o person shall discriminate against any individual
             because such individual . . . made a charge . . . under this
             Chapter.”). (See 42 U.S.C. § 12203(a); A Soc’y Without a
             Name, for People without a Home, Millennium Future-
             Present v. Virginia, 655 F.3d 342, 350 (4th Cir. Va. 2011)
             (holding that an employee claiming retaliation claim under
             the ADA, must establish a causal link exists between the
             protected conduct and the adverse action).

                    40.    A preponderance of the evidence showed that
             Petitioner did not establish a causal link between her
             protected activity and any adverse action by Respondent.
             Petitioner was separated from employment due to her
             unavailability for work. At the time of her separation, the
             ADA accommodation process was still ongoing.

Each of petitioner’s 13 remaining issues on appeal relates to one or more of the

contested conclusions of law.

A.    Petitioner’s Brief

      We have had some difficulty determining which conclusions of law were

addressed by each argument. For example, petitioner notes Conclusions of Law No.

26 and/or 36 in her “ISSUES PRESENTED” numbered 1, 4, 5, 6, 7 and 8. But the

argument section of her brief has sections lettered A through N, instead of numbered

as they were in the “issues presented” section; furthermore, the numbered issues do

not necessarily coincide with the lettered sections of the argument. For example, the

first issue presented, issue number 1, argues the ALJ and Superior Court erred in

determining respondent had made a reasonable accommodation while the first

argument, letter A, is entitled “Discrimination Under Title I of the ADA” and provides


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                                        Opinion of the Court



the general framework for making a claim under the ADA, the American With

Disabilities Act. Even if we ignore the “ISSUES PRESENTED” section entirely, the

headings of the lettered sections also do not directly relate to particular issues; again,

letter A in the argument section is a general restatement of the law and the facts

from petitioner’s perspective without any contentions for this Court to review.3 But

with that caveat, we have attempted to match up petitioner’s arguments to the issues

as best we can.

B.     Title I of the ADA

       Petitioner’s arguments are based almost entirely upon Title I of the ADA.

               To prevail on an ADA claim, the plaintiff must prove that:
               (1) she has a disability as defined by the ADA; (2) she is
               qualified for the job; and (3) she was unlawfully
               discriminated against by an employer because of her
               disability.
                      Under the ADA, the term disability is defined as a
               physical impairment that substantially limits one or more
               of the major life activities of such individual. . . .
                      Only a qualified individual with a disability may
               prevail on a discrimination claim under the ADA. The term
               qualified individual with a disability means an individual
               with a disability who, with or without reasonable
               accommodation, can perform the essential functions of the
               employment position that such individual holds or desires.

       3  North Carolina Rule of Appellate Procedure 28(b)(2) requires that the brief set forth “[a]
statement of the issues presented for review” and (6) requires “[a]n argument, to contain the
contentions of the appellant with respect to each issue presented.” N.C. App. P. R. 28. We must admit
that Rule 28 does not specifically require that the issues be addressed in the same sequence in both
portions of the brief, although that seems to be nearly the universal practice in briefs filed in this
Court, but in this case our initial assumption that the numbered issues were intended to coincide
directly with the lettered arguments was apparently wrong; it was simply a coincidence that there are
14 issues presented and 14 arguments.


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                                  Opinion of the Court



             Essential functions of the job are the fundamental job
             duties of the person with the disability that bear more than
             a marginal relationship to the job at issue.
                    The term reasonable accommodation may include—
                           (A) making existing facilities used by
                    employees readily accessible to and usable by
                    individuals with disabilities; and
                           (B) job restructuring, part-time or modified
                    work schedules, reassignment to a vacant position,
                    acquisition or modification of equipment or devices,
                    appropriate adjustment or modification of
                    examinations, training materials or policies, the
                    provision of qualified readers or interpreters, and
                    other similar accommodations for individuals with
                    disabilities.

Johnson v. Trustees of Durham Tech. Cmty. Coll., 139 N.C. App. 676, 684–85, 535

S.E.2d 357, 363 (2000) (citations, quotation marks, ellipses, and brackets omitted).

      Petitioner brought claims under the ADA for her wrongful discharge arguing

that respondent’s failure to make reasonable accommodations for her disability so

that she could continue working ultimately led to her discharge. The ALJ determined

that petitioner’s claims failed because

             Petitioner was not separated from employment because of
             her light sensitivity, but she was separated from
             employment because she failed to report to work, an
             essential element of her office position. For the foregoing
             reasons, Petitioner is not a “qualified individual with a
             disability” [pursuant to the ADA,]

and even

             [a]ssuming that Petitioner met the first criterion of being a
             qualified individual entitled to the protection of the ADA,
             Petitioner still did not establish the second criterion that


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                                         Opinion of the Court



               Respondent discriminated against Petitioner. Even if
               Petitioner is a qualified individual with a disability,
               Respondent met its obligations to accommodate her in a
               reasonable manner.

       Again, “[t]o prevail on an ADA claim, the plaintiff must prove that: (1) she has

a disability as defined by the ADA; (2) she is qualified for the job; and (3) she was

unlawfully discriminated against by an employer because of her disability.” Id. at

684, 535 S.E.2d at 363. The parties do not dispute that petitioner’s light sensitivity

which leads to migraine headaches is a “disability” as defined by the ADA, and for

purposes of this opinion we will assume petitioner “is qualified for the job.”4 Id. Thus,

all that remains to consider is plaintiff’s contention that “she was unlawfully

discriminated against by an employer because of her disability.”                       Id.    In this

particular case, the alleged discrimination is petitioner’s termination. Therefore, the

crucial issue is whether “Respondent met its obligations to provide Petitioner with

reasonable accommodations under the ADA” because if respondent met its obligation

to “provide Petitioner with reasonable accommodations under the ADA[,]” then

petitioner’s failure to return to work would be without legal justification and that

would be a proper ground for termination, not a discriminatory one, as the ALJ

determined.       Thus, we will therefore first address the issue of reasonable

accommodation under the ADA.


       4  There is a question of whether petitioner was qualified for the job, but because petitioner’s
claim fails if she does not meet any one of the three prongs for her claim, we choose to address only
the third prong. See generally Johnson, 139 N.C. App. 676, 684–85, 535 S.E.2d 357, 363.

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                                  Opinion of the Court



C.    Reasonable Accommodation

      Petitioner’s arguments on appeal which relate to the issue of reasonable

accommodations under the ADA are scattered throughout several sections of her

brief. Petitioner contends as follows:

                    At Conclusions 9 through 12, the Decision finds that
             Ms. Rittelmeyer was properly “separated due to
             unavailability”, and the just cause issue she raised was
             never reached. These conclusions constitute error because
             Respondent did not prove “that reasonable efforts were
             taken to avoid separation” as required by 25 NCAC
             01C.1007(c)(2). Ms. Rittelmeyer stopped coming to work
             because her disability had never been effectively
             accommodated by Respondent, and essentially each time
             she tried to work, she was subjected to a painful migraine
             attack. As a result of the repeated and severe migraine
             attacks, her health was suffering, she was becoming more
             and more susceptible to migraine attacks, and the attacks
             were more severe and lasting longer. It was the failure of
             Respondent to put in place an accommodation that would
             allow her to work without these very serious medical
             consequences, that caused her to miss work and ultimately
             stop coming to work. The “reasonable efforts” that
             Respondent should have engaged in to “avoid separation”
             would have been to implement an effective accommodation,
             which officials of Respondent refused to do right from the
             beginning of the accommodation process. To say, as the
             Decision does, that sending Ms. Rittelmeyer letters
             demanding that she report to work, where she knew she
             would again be subjected to long lasting, painful migraine
             attacks triggered by the lights, constituted “reasonable
             efforts”, is the height of sophistry.

(Footnote omitted.)    Thus, petitioner claims that respondent failed to make

“reasonable efforts” to accommodate her disability, and due to that failure, she should



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                                  Opinion of the Court



prevail on this issue.

      42 U.S.C.A. § 12111(9) defines reasonable accommodation:

             The term “reasonable accommodation” may include—
                    (A)     making existing facilities used by employees
             readily accessible to and usable by individuals with
             disabilities; and
                    (B) job restructuring, part-time or modified work
             schedules, reassignment to a vacant position, acquisition
             or modification of equipment or devices, appropriate
             adjustment or modifications of examinations, training
             materials or policies, the provision of qualified readers or
             interpreters, and other similar accommodations for
             individuals with disabilities.

42 U.S.C.A. § 12111(9) (West 2013).

      42 U.S.C.A. 12112 defines discrimination as

             not making reasonable accommodations to the known
             physical or mental limitations of an otherwise qualified
             individual with a disability who is an applicant or
             employee, unless such covered entity can demonstrate that
             the accommodation would impose an undue hardship on
             the operation of the business of such covered entity.

42 U.S.C.A. § 12112(b)(5)(A) (West 2013).

      Petitioner’s main argument is that although respondent did make

modifications to her work area to accommodate her disability, those modifications

were not effective – because they did not work – so therefore they were not

“reasonable” accommodations as a matter of law. In other words, respondent argues

that the only accommodations that qualify as “reasonable” are those that would have

been effective in eliminating her migraines at work. Petitioner relies primarily upon


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                                   Opinion of the Court



US Airways, Inc. v. Barnett, 535 U.S. 391, 152 L. Ed. 2d 589 (2002), contending that

“[a]s recognized by the Supreme Court in US Airways, Inc. v. Barnett, 535 U.S. 391,

400 (2002), ‘An ineffective “modification” or “adjustment” will not accommodate a

disabled individual’s limitations.’ (emphasis in original). Ineffective accommodations

therefore are not accommodations.” Petitioner’s argument quotes US Airways, Inc.

v. Barnett, out of context; in fact, the Supreme Court specifically rejected the idea that

a “reasonable accommodation” and an “effective accommodation” are one and the

same:

                    Barnett argues that the statutory words “reasonable
             accommodation” mean only “effective accommodation,”
             authorizing a court to consider the requested
             accommodation’s ability to meet an individual’s disability-
             related needs, and nothing more. . . .
                    ....
                    These arguments do not persuade us that Barnett’s
             legal interpretation of “reasonable” is correct. For one
             thing, in ordinary English the word “reasonable” does not
             mean “effective.” It is the word “accommodation,” not the
             word “reasonable,” that conveys the need for effectiveness.
             An ineffective “modification” or “adjustment” will not
             accommodate a disabled individual's limitations. Nor does
             an ordinary English meaning of the term “reasonable
             accommodation” make of it a simple, redundant mirror
             image of the term “undue hardship.” The statute refers to
             an “undue hardship on the operation of the business.” 42
             U.S.C. § 12112(b)(5)(A). Yet a demand for an effective
             accommodation could prove unreasonable because of its
             impact, not on business operations, but on fellow
             employees—say, because it will lead to dismissals,
             relocations, or modification of employee benefits to which
             an employer, looking at the matter from the perspective of
             the business itself, may be relatively indifferent.


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                       Opinion of the Court



       Neither does the statute’s primary purpose require
Barnett’s special reading. The statute seeks to diminish or
to eliminate the stereotypical thought processes, the
thoughtless actions, and the hostile reactions that far too
often bar those with disabilities from participating fully in
the Nation’s life, including the workplace. See generally §§
12101(a) and (b). These objectives demand unprejudiced
thought and reasonable responsive reaction on the part of
employers and fellow workers alike. They will sometimes
require affirmative conduct to promote entry of disabled
people into the work force. See supra, at 397-98. They do
not, however, demand action beyond the realm of the
reasonable.
       Neither has Congress indicated in the statute, or
elsewhere, that the word “reasonable” means no more than
“effective.” The EEOC regulations do say that reasonable
accommodations “enable” a person with a disability to
perform the essential functions of a task. But that phrasing
simply emphasizes the statutory provision’s basic
objective. The regulations do not say that “enable” and
“reasonable” mean the same thing. And as discussed below,
no court of appeals has so read them. But see 228 F.3d, at
1122–1123 (Gould, J., concurring).
       Finally, an ordinary language interpretation of the
word “reasonable” does not create the “burden of proof”
dilemma to which Barnett points. Many of the lower courts,
while rejecting both U.S. Airways’ and Barnett’s more
absolute views, have reconciled the phrases “reasonable
accommodation” and “undue hardship” in a practical way.
       They have held that a plaintiff/employee (to defeat a
defendant/employer’s motion for summary judgment) need
only show that an “accommodation” seems reasonable on
its face, i.e., ordinarily or in the run of cases. See, e.g., Reed
v. LePage Bakeries, Inc., 244 F. 3d 254, 259 (CA1 2001)
(plaintiff meets burden on reasonableness by showing that,
“at least on the face of things,” the accommodation will be
feasible for the employer); Borkowski v. Valley Central
School Dist., 63 F. 3d 131, 138 (CA2 1995) (plaintiff
satisfies “burden of production” by showing “plausible
accommodation”); Barth v. Gelb, 2 F. 3d 1180, 1187 (CADC


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                                  Opinion of the Court



             1993) (interpreting parallel language in Rehabilitation Act,
             stating that plaintiff need only show he seeks a “method of
             accommodation that is reasonable in the run of cases”
             (emphasis in original)).
                    Once the plaintiff has made this showing, the
             defendant/employer then must show special (typically
             case-specific) circumstances that demonstrate undue
             hardship in the particular circumstances. See Reed, supra,
             at 258 (“ ‘undue hardship inquiry focuses on the hardships
             imposed . . . in the context of the particular [employer’s]
             operations’ ”) (quoting Barth, supra, at 1187); Borkowski,
             supra, at 138 (after plaintiff makes initial showing, burden
             falls on employer to show that particular accommodation
             “would cause it to suffer an undue hardship”); Barth,
             supra, at 1187 (“undue hardship inquiry focuses on the
             hardships imposed . . . in the context of the particular
             agency’s operations”).
                    Not every court has used the same language, but
             their results are functionally similar. In our opinion, that
             practical view of the statute, applied consistently with
             ordinary summary judgment principles, see Fed. Rule Civ.
             Proc. 56, avoids Barnett’s burden of proof dilemma, while
             reconciling the two statutory phrases (“reasonable
             accommodation” and “undue hardship”).

535 U.S. 391, 399-402, 152 L.Ed.2d 589, 601-03 (emphasis added). Thus, we reject

petitioner’s contention that because the accommodations were not effective for her,

they were per se not reasonable. See id.

      Under Barnett, an “ineffective modification” is one which “will not

accommodate a disabled individual's limitations.” See id. at 400, 152 L. E. 2d at 601.

The most obvious modification to accommodate light sensitivity is to eliminate an

employee’s exposure to lights, if possible, and otherwise to reduce exposure to light

as much as possible without excessive interference with the ability of other employees


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                                   Opinion of the Court



to do their work.

      The determination of reasonableness is

             an objective analysis, not a subjective one dominated by
             either party’s concerns. In assessing objective
             reasonableness, the governing statute provides guidance.
             See 42 U.S.C. § 12111(9). It provides that reasonable
             accommodation’ may include a number of listed measures;
             obviously    Congress    considered    these   types  of
             accommodations to be reasonable.

Williams v. Channel Master Satellite Systems, Inc., 101 F.3d 346, 350 (4th Cir. 1996)

(quotation marks omitted).

      Respondent tried many of the listed measures in 42 U.S.C.A. § 12111(9). See

42 U.S.C.A. § 12111(9).      For example, respondent offered “job restructuring” by

proposing that petitioner work from home; she rejected this proposal more than once.

Respondent also “modif[ied] . . . equipment or devices” by making many changes to

petitioner’s cubicle and to lights throughout the work area. The modifications were

objectively reasonable in that they lessened petitioner’s exposure to light, while

allowing other employees adequate light to work. Over the course of several months

respondent made many accommodations, including some based on petitioner’s own

requests for changes which she believed would accommodate her needs, and others

identified by respondent. The accommodations included turning off various sets of

lights, light bulb watt changes, disabling lights, several modifications to petitioner’s

cubicle, and movement of shared office equipment to petitioner so she would not need



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                                         Opinion of the Court



to leave her cubicle. At the same time, respondent also had to address complaints of

other employees who were having difficulty seeing in the darkened areas of the

workplace. Respondent was also trying to hit a moving target, since petitioner’s light

sensitivity increased over time.5               Even petitioner admitted that after the

modification, her cubicle was darker than it had ever been yet she began requesting

accommodations for light sources that had not previously been a problem, such as

Ms. Sikes’s office. Furthermore, petitioner rejected requests to work from home and

the option of wearing room-darkening glasses, although she admitted that she used

them elsewhere. Given the binding findings of fact, see generally Garrett, 224 N.C.

App. at 34, 735 S.E.2d at 416, it is clear that respondent made numerous reasonable

accommodations.

D.      Undue Hardship

        Petitioner further contends that

                where an employer has informally accommodated an
                employee’s disability, and the employee performs their job
                satisfactorily, that establishes that the accommodation is
                reasonable and if the employer revokes that
                accommodation, they must prove that continuation of the
                accommodation would cause it undue hardship[, and]

        5  One of petitioner’s arguments is that her exposure to light in the workplace actually
“aggravated” her light sensitivity, so that respondent’s failure to find the right accommodation earlier
in the process worsened her condition. Even if we assume this to be true, respondent had no way of
knowing or predicting if petitioner’s light sensitivity would increase, decrease, or stay the same based
upon the modifications made. The only medical information on this increase in sensitivity was
presented at the hearing; petitioner would not permit respondent to communicate with her healthcare
providers during the interactive process. This additional information regarding petitioner’s increasing
sensitivity may have helped respondent do a better job of accommodating petitioner’s condition, but
petitioner chose not to share her medical information during the accommodation process.

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                                   Opinion of the Court



             morale issues of other employees do not constitute undue
             hardship to the employer, where the evidence shows that
             the work of the employees was getting completely done[.]

(Quotation marks omitted.) Again, petitioner is incorrect in her legal analysis. In a

related issue, the Fourth Circuit clarified that

             [t]he fact that certain accommodations may have been
             offered by the County to some employees as a matter of good
             faith does not mean that they must be extended to Myers as
             a matter of law. See Traynor v. Turnage, 485 U.S. 535, 549,
             108 S.Ct. 1372, 1384, 99 L. Ed. 2d 618 (1988) (“There is
             nothing in the Rehabilitation Act that requires that any
             benefit extended to one category of handicapped persons
             also be extended to all other categories of handicapped
             persons.”). Moreover, such a regime would discourage
             employers from treating disabled employees in a spirit that
             exceeds the mandates of federal law. If an employer
             undertook extraordinary treatment in one case, the same
             level of accommodation would be legally required of it in all
             subsequent cases; in other words, a good deed would
             effectively ratchet up liability, and thus not go unpunished.
             See Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d
             538, 545 (7th Cir. 1995). Discouraging discretionary
             accommodations would undermine Congress’ stated
             purpose of eradicating discrimination against disabled
             persons. See 42 U.S.C. § 12101(b). Accordingly, we do not
             accept the proposition that Myers is ipso facto entitled to
             the precise accommodations afforded other disabled
             County employees.

Myers v. Hose, 50 F.3d 278, 284 (4th Cir. 1995) (emphasis added).

      While Myers was addressing different employees, the logic also applies here.

Compare id. The fact that Ms. Sikes was willing to try certain accommodations does

not mean she was then bound to continue an accommodation even if it ended up being



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                                   Opinion of the Court



untenable. See generally id. Ms. Sikes tried turning off all overhead florescent lights

but she later determined that this accommodation could not continue due to other

employees’ complaints. See generally id. Petitioner’s interpretation would do exactly

what Myers warns about causing “a good deed [to] effectively ratchet up liability[;]”

an employer should not be punished for being willing to try an accommodation which

ends up not working or being discontinued for other reasons, whether due to the

disabled employee, other employees, or the employer. Id. Again, reasonableness is

an objective standard, and it is not objectively reasonable to require all other

employees to work without overhead lights in this particular situation. See Williams,

101 F.3d at 350. U.S.C.A. § 12112(b)(5)(A) mandates that the employer must

demonstrate undue hardship if refusing a reasonable accommodation, not an

unreasonable accommodation proposed by the disabled employee. See U.S.C.A. §

12112(b)(5)(A).    Therefore, we need not further address petitioner’s arguments

regarding undue hardship.

E.    Interactive Process

      Closely related to petitioner’s challenge of the reasonableness of respondent’s

accommodations are her arguments that respondent failed to use good faith in

engaging in the interactive process of finding a reasonable accommodation.

Specifically, petitioner argues:

                  6.     Did the ALJ and the Superior Court Judge
             commit errors of law when they failed to recognize that


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                                    Opinion of the Court



               under the ADA the employer must propose additional
               possible reasonable accommodations when it is aware that
               the accommodations[] it has implemented are not effective,
               and also when the employee proposes additional
               accommodations, and the failure to do so constitutes a
               failure to engage in the interactive process required by the
               ADA? COL 28, 29, 30, 36 & 37 [R. pp.155-56], aff'd, R.
               p.163]

                      7.    Did the ALJ and the Superior Court Judge
               commit errors of law when they failed to recognize the bad
               faith of Respondent in the interactive process as shown by
               numerous      statements     by    managers      indicating
               discriminatory intent, and the refusal to consider the
               reasonable accommodation of turning off the fluorescent
               lights? COL 28, 29, 30, 32, 36 & 37 [R. pp.155-56], aff’d, R.
               p.163.

                      8.    Did the ALJ and the Superior Court Judge
               commit errors of law when they failed to recognize that
               when the lack of an effective accommodation for a disabled
               employee causes the employee to have deficiencies in their
               work performance such as excessive absenteeism, under
               the ADA a discharge for those deficiencies is a discharge
               based on disability? COL 19, 20, 21, 23, 24, 25, 36 & 37
               [R. pp.153-54 & 156], aff’d, R. p.163.

         The parties were engaged in a formal interactive process to find a reasonable

accommodation and both employee and employer are required to participate in good

faith:

               Once an employee has made a request for an
               accommodation, the ADA’s regulations state that “it may
               be necessary for the employer to initiate an informal,
               interactive process with the qualified individual with a
               disability in need of the accommodation” in order to craft a
               reasonable accommodation. 29 C.F.R. § 1630.2(o)(3). The
               EEOC’s interpretive guidelines reinforce this directive, but


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                     Opinion of the Court



also stress that the interactive process requires the input
of the employee as well as the employer. See 29 C.F.R. Pt.
1630, App. § 1630.9 at 359 (“flexible, interactive process
that involves both the employer and the qualified
individual with a disability”). See also Taylor v. Principal
Financial Group, Inc., 93 F.3d 155, 165 (5th Cir.), cert.
denied, 519 U.S. 1029, 117 S.Ct. 586, 136 L. Ed. 2d 515
(1996) (duty to launch interactive process is triggered by
request for an accommodation). The need for bilateral
discussion arises because “each party holds information
the other does not have or cannot easily obtain.” See Taylor
v. Phoenixville School Dist., 174 F.3d 142, 162 (3rd
Cir.1999) (noting that employers will not always
understand what the disabled employee is capable of and
the employee will not always understand what
accommodations are reasonably available). Courts
interpreting the interactive process requirement have held
that when an employer’s unwillingness to engage in a good
faith interactive process leads to a failure to reasonably
accommodate an employee, the employer violates the ADA.
See Taylor v. Phoenixville School Dist., 174 F.3d 142, 165;
Bultemeyer v. Fort Wayne Community Schools, 100 F.3d
1281, 1285 (7th Cir.1996). However, recognizing that “the
responsibility for fashioning a reasonable accommodation
is shared between the employee and the employer,” see
Principal Financial Group, 93 F.3d at 165 (emphasis
added), courts have held that an employer cannot be found
to have violated the ADA when responsibility for the
breakdown of the “informal, interactive process” is traceable
to the employee and not the employer. See Beck v.
University of Wisconsin Bd. Of Regents, 75 F.3d 1130, 1135
(7th Cir.1996); Templeton v. Neodata Services, Inc., 162
F.3d 617 (10th Cir.1998). This reasoning flows naturally
from our recognition in Principal Financial Group that
responsibility for the interactive process is shared. Since on
the evidence here no reasonable jury could find Akzo at
fault for the breakdown of the interactive process, the
district court was correct to grant judgment as a matter of
law in Akzo’s favor.



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                                     Opinion of the Court



Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 735–36 (5th Cir. 1999) (emphasis added)

(footnotes and brackets omitted).

      Petitioner’s issues here are all based upon the “failure” of the ALJ and Superior

Court to “recognize” certain things. While petitioner’s issues are framed as legal

issues they really ask this Court to re-weigh the evidence and make different factual

determinations.     But we have already determined that the findings of fact are

binding upon this Court.     See Garrett, 224 N.C. App. at 34, 735 S.E.2d at 416.

Furthermore, to the extent that petitioner’s issues regarding the ALJ’s and Superior

Court’s “failures” are based upon a legal determination, petitioner’s legal arguments

also fail because the numerous findings of fact regarding the many reasonable

accommodations made by respondent demonstrate that respondent engaged in the

interactive process in good faith.

      The findings of fact also establish that it was petitioner who ended the

interactive process. Thus, even generously assuming arguendo that respondent’s

arguments may raise some interesting legal points, the fact remains that petitioner’s

actions ultimately caused the interactive process to stop before finding an effective

accommodation. Though petitioner argues that she disengaged from the process

because she could no longer return to work without risking a migraine being

triggered, this point ignores the evidence and findings that petitioner was given the

opportunity to work from home as the interactive process continued. Petitioner chose



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                                 Opinion of the Court



not to work from home; petitioner chose not to return to work; petitioner’s choices

were the reason the interactive process failed to continue. “No matter how earnestly

one party attempts to engage in an interactive process, its efforts can always be

superficially characterized as unilateral if the other party refuses to interact. One

cannot negotiate with a brick wall.” Loulseged, 178 F.3d at 737. These arguments

are overruled.

F.    Termination

      Petitioner’s final subset of arguments run the gamut touching on

“discrimination,” “retaliation,” and the failure of the ALJ and Superior Court to

“adopt” her findings of fact and cited law and to award her damages.           All of

petitioner’s arguments are based upon the premise that respondent failed to properly

engage in the interactive process and failed to make reasonable accommodations, so

ultimately respondent retaliated against petitioner by terminating her employment

on the discriminatory basis of her disability. But petitioner was not terminated for

her disability; she was terminated because she stopped coming to work without even

letting respondent know that she would not report to work as scheduled, after she

also repeatedly refused to work from home. Petitioner’s arguments fail.

                                 V.     Conclusion

      For the foregoing reasons, we affirm.

      AFFIRMED.



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                       Opinion of the Court



Judges BRYANT and CALABRIA concur.




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