Smithson v. Austin, No. 22-2566 (7th Cir. 2023)
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The Department of Defense Education Activity (DODEA) operates schools for military families. Smithson has worked as a DODEA science teacher since 2004. Smithson’s medical conditions include migraines, intracranial hypertension, affective disorder, vertigo, and ADHD. These conditions, with the required medications, have caused her problems with balance, walking, driving, breathing, vision, speech, and memory. In 2010, Smithson first obtained accommodations–an occasional flexible start time and permission to be seated during part of the teaching day. In 2014-2016, Smithson's requests for additional accommodations were largely granted. Principal Villareal's response to Smithson’s request for a flexible duty reporting time of up to two hours was, “The employee is approved to use sick leave for any absence from school up to two hours, barring any undue hardship to the school schedule.” Later, Smithson indicated that she would be late every day but would arrive before her first instructional section. Smithson then used sick leave as needed. During the pandemic, Smithson began to work from home, full-time, in DODEA’s Virtual School.
Smithson sued under the Rehabilitation Act for disability discrimination and failure to accommodate when she was required to use a half-day of sick leave whenever she arrived late. The Seventh Circuit affirmed summary judgment in favor of DODEA. In-person attendance was an essential function of Smithson’s position and her need to miss up to two hours each morning demonstrated that she could not perform this essential function. A frequent two-hour delay at the beginning of the school day is not the same as an infrequent 15-minute delay, as permitted under her original accommodation.
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