### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

- 31338

JUDY SCHILLING,

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 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED October 4, 2016

Lyle W. Cayce Clerk Case: 14-31338 Document: 00513703597 Page: 1 Date Filed: 10/04/2016No. 14

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2 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 accommodatio n as unreasonable because th at 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 b e 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 offer ed Schilling a different office with a door , which Schilling declined. DOTD final ly 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 hel p 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 fo ot 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 wor kplace. One of Schilling’s supervisors testified that in April 2008, she gave Schilling permission to wear slipp er
- 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 Case: 14-31338 Document: 00513703597 Page: 2 Date Filed: 10/04/2016No. 14

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3 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 slipper s 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 t o timely provide her requested accommodations and that she was subjected to a hostile work environment in retaliation for req uesting 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

unr easonable 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 t o 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 employ ee contributed Case: 14-31338 Document: 00513703597 Page: 3 Date Filed: 10/04/2016No. 14

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4 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, t he district court declined to give these instruction s

. As the district court explained, it refused to give th e proposed instruction s 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 fa vor 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 t his appeal followed

. II. DISCUSSION On appeal, Schilling challenges the district court ’ s decision not to give her requested jury instruction s 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 cou rts “ 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, 28 5 (5th Cir. 2010)). And w e will only reverse a district court based on its de cision not to give a requested instruction i f 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 unsup ported 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. Case: 14-31338 Document: 00513703597 Page: 4 Date Filed: 10/04/2016No. 14

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5 instruct t he 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 instruction s at issue here

. Essentially, t he proposed instruction s 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 ar gues that because this “delay” instruction ha d no basis in Fifth Circuit precedent, it was not a s ubstantially correct statement of law. Indeed, the proposed instructions were all drawn from o ut

- of

- circuit decisions and non binding 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 wa s necessarily incorrect , a lthough 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 appro priate reasonable accommodation it may be necessary . . . to init iate an informal, interactive process with the [disabled employee].” 29 C. F.R. § 1630.2(o)(3). We have held that o nce an employee ha s 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 Case: 14-31338 Document: 00513703597 Page: 5 Date Filed: 10/04/2016No. 14

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6 (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 acti ng in good faith. ” ). In this way, “ unreasonable delay may amount to a failure to pro vide 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] n necessary delays can result in a violation of the ADA. ” E qual 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. a t 737 n.6 . We cautioned, however, that “[n]othin g 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, a lthough our precedent is no t 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 co urt 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 Case: 14-31338 Document: 00513703597 Page: 6 Date Filed: 10/04/2016No. 14

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7 abuse its discretion b y 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 Kani da , 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 request s for accommodation and when they were realized

. She questioned DOTD employees about how long it took to accommodate her requests

. And most i mportantly, undue delay was one of Schilling’s principal themes at closing. For example, Schilling ’s counse l 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 bro ken the law. And so the delay . . . is important in determining whether the defend ants 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 instruction s regarding delay did not seriously impair her ability to present thi s 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 Case: 14-31338 Document: 00513703597 Page: 7 Date Filed: 10/04/2016No. 14

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8 dialogue between the employer and the employee in which they both communicate with each other with the goal of determining an appropriate and reasonable accommodatio n. W hen 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 impl ied that f ailure 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.
II I. CONCLUSION For the foregoing reasons, the district court is AFFIRMED

. Case: 14-31338 Document: 00513703597 Page: 8 Date Filed: 10/04/2016