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 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 4, 2016

Lyle W. Cayce

Clerk

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I. BACKGROUND

There is no dispute that Schilling is disabled within the meaning of the 

ADA. During her employment, Schilling requested several accommodations. 

In 2007, Schilling requested a handicapped parking spot. Following this 

request, DOTD converted a spot into a handicapped space for her. Schilling, 

however, characterizes this accommodation as unreasonable because that spot 

was far from her office, which was located in the rear of the building. DOTD

provided a handicapped parking space in the rear of the building around 

October 2009. 

Also in 2007, Schilling requested that a door be installed on the office

that she shared with another employee because ambient office noise distracted 

her. While this request was initially denied, DOTD sought to accommodate 

Schilling’s needs by instructing other employees not to make as much noise 

and by closing the door to the main hallway. One of Schilling’s supervisors, 

Connie Standige, testified that she offered Schilling a different office with a 

door, which Schilling declined. DOTD finally installed a door in March 2011.

In March or April 2008, Schilling requested that she be allowed to wear 

slippers or slipper-like shoes to help with her pain and balance. A note from 

one of her doctors supported this request and recommended that she be allowed 

“to wear light weight, non-binding foot wear, something slipper like. This is to 

keep any compression off of her legs and feet, while seated at a desk.” DOTD’s 

formal safety policy explicitly prohibited employees from wearing slippers at 

the workplace. One of Schilling’s supervisors testified that in April 2008, she 

gave Schilling permission to wear slipper-like shoes while at her desk, and “soft 

rubber sole” shoes in the hallways. Schilling testified that she began wearing 

slippers at her desk before asking for permission to do so, and continued 

wearing slippers after April 2008. She also testified that she was never 

disciplined for wearing slippers at work. Nevertheless, Schilling contends that 

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DOTD failed to accommodate her request because it did not amend its formal

workplace policies to allow for her to wear slippers at her desk and did not 

permit her to wear slippers in all areas of the workplace. 

In May 2012, Schilling was terminated after she exhausted her available 

leave under the Family Medical Leave Act. After filing a claim with the Equal 

Employment Opportunity Commission (“EEOC”) and receiving a right-to-sue 

letter, Schilling filed suit in Louisiana state court alleging that DOTD failed to 

timely provide her requested accommodations and that she was subjected to a 

hostile work environment in retaliation for requesting accommodations. DOTD

removed the case to federal court. After several of her claims were dismissed 

at summary judgment, Schilling’s case proceeded to trial.

Prior to trial, Schilling submitted Joint Proposed Jury Instructions. As 

part of the instruction for failure to accommodate under the ADA, the proposal 

included several instructions regarding the effect of an employer’s alleged

delay in addressing an employee’s requests for accommodation. Specifically, 

these proposed instructions provided: 

7. “A party that obstructs or delays the interactive process is not 

acting in good faith.” “An absence of good faith, including 

unreasonable delays caused by an employer, can serve as evidence 

of an ADA violation.”

8. The EEOC Enforcement Guide, at 10 mandates that “an 

employer respond expeditiously to a request for a reasonable 

accommodation.”

9. An employer may also violate the ADA where the employer’s 

failure to reasonably accommodate an employee’s disability causes 

the employee’s condition to worsen or to be aggravated.

10. Unnecessary delays can result in a violation of the ADA. Delay 

alone may give rise to liability for failure to accommodate even 

where a reasonable accommodation ultimately is provided. Factors 

to consider in determining whether the accommodation was 

unnecessarily delayed include: the reasons for delay, the length of 

the delay, how much the employer and the employee contributed 

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to the delay, the employer’s actions during the delay, and whether 

the requested accommodation was simple or complex to provide.

Over Schilling’s objection, the district court declined to give these instructions. 

As the district court explained, it refused to give the proposed instructions

because they were not based on Fifth Circuit case law and were already covered 

by the court’s other instructions. 

Following a three-day trial, the jury returned a verdict in favor of DOTD. 

Schilling filed a motion to alter the judgment or, in the alternative, for a new 

trial, arguing that (1) the verdict was clearly erroneous and (2) the district 

court erred by refusing to give the above jury instructions. The district court 

denied Schilling’s motion and this appeal followed.

II. DISCUSSION

On appeal, Schilling challenges the district court’s decision not to give 

her requested jury instructions regarding delay.1

A. Standard of Review

“This Court reviews a district court’s refusal to provide a requested jury 

instruction for abuse of discretion.” Kanida v. Gulf Coast Med. Pers. LP, 363 

F.3d 568, 578 (5th Cir. 2004) (quoting United States v. McClatchy, 249 F.3d 

348, 356 (5th Cir. 2001)). We afford district courts “substantial latitude . . . in 

describing the law to the jury.” United States v. Wright, 634 F.3d 770, 774 (5th 

Cir. 2011) (quoting United States v. Williams, 610 F.3d 271, 285 (5th Cir. 

2010)). And we will only reverse a district court based on its decision not to 

give a requested instruction if that instruction “1) was a substantially correct 

statement of law, 2) was not substantially covered in the charge as a whole, 

and 3) concerned an important point in the trial such that the failure to 

 

1 In Schilling’s opening brief, she also challenges the jury’s verdict as being 

unsupported by the evidence and thus clearly erroneous. In her reply, however, she states 

that she “does not seek reversal of the jury verdict based on insufficiency of the evidence.”

Schilling has accordingly abandoned this argument, and we will not address it here.

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instruct the jury on the issue seriously impaired the [party’s] ability to present 

a given [claim].” Kanida, 363 F.3d at 578 (alterations in original) (quoting 

McClatchy, 249 F.3d at 356).

B. Analysis

The district court did not abuse its discretion by declining to give the 

proposed jury instructions at issue here. Essentially, the proposed instructions

sought to direct the jury that “[d]elay alone may give rise to liability for failure 

to accommodate even where a reasonable accommodation ultimately is 

provided.” DOTD argues that because this “delay” instruction had no basis in 

Fifth Circuit precedent, it was not a substantially correct statement of law. 

Indeed, the proposed instructions were all drawn from out-of-circuit decisions 

and nonbinding EEOC guidance, discussed below. Schilling concedes that her 

proposed delay instruction was not based on Fifth Circuit precedent, but asks 

us to decide this issue as res nova. 

Schilling’s proposed delay instruction was not a substantially correct 

statement of law in this Circuit such that it was abuse of discretion to exclude 

it. This does not mean the instruction was necessarily incorrect, although we 

do not decide whether delay alone may rise to the level of an ADA violation. By 

way of background, an employer’s failure to make “reasonable 

accommodations” for a disabled employee may constitute unlawful 

discrimination under the ADA. 42 U.S.C. § 12112(b)(5)(A). For an employer 

“[t]o determine the appropriate reasonable accommodation it may be necessary 

. . . to initiate an informal, interactive process with the [disabled employee].” 

29 C.F.R. § 1630.2(o)(3). We have held that once an employee has made a 

request for an accommodation of her disability, “the employer is obligated by 

law to engage in an ‘interactive process’: ‘a meaningful dialogue with the 

employee to find the best means of accommodating that disability.’” Equal 

Emp’t Opportunity Comm’n v. Chevron Phillips Chem. Co., 570 F.3d 606, 621 

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(5th Cir. 2009) (quoting Tobin v. Liberty Mut. Ins. Co., 433 F.3d 100, 108 (1st 

Cir. 2005)). “When an employer does not engage in a good faith interactive 

process, that employer violates the ADA . . . .” Id.

Several courts have elaborated that an employer’s (or employee’s) delay 

in providing reasonable accommodation may show a lack of good faith in the 

interactive process. See, e.g., Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 

1135 (7th Cir. 1996) (“A party that obstructs or delays the interactive process 

is not acting in good faith.”). In this way, “unreasonable delay may amount to 

a failure to provide reasonable accommodations.” Valle–Arce v. P.R. Ports 

Auth., 651 F.3d 190, 200 (1st Cir. 2011). In line with this authority, EEOC 

enforcement guidance states that “[u]nnecessary delays can result in a 

violation of the ADA.” Equal Emp’t Opportunity Comm’n, Enforcement 

Guidance: Reasonable Accommodation and Undue Hardship Under the 

Americans with Disabilities Act (2002).

This Court has discussed only in dicta whether delay alone may 

constitute an ADA violation. In Loulseged v. Akzo Nobel Inc., 178 F.3d 731 (5th 

Cir. 1999), we suggested that in certain circumstances “[a]n employer’s 

delaying of the [interactive] process . . . might create liability” under the ADA. 

Id. at 737 n.6. We cautioned, however, that “[n]othing in the regulations or the 

cases indicates to us that an employer must move with maximum speed to 

complete this process and preempt any possible concerns.” Id. at 737.

Therefore, although our precedent is not opposed to Schilling’s delay 

instruction, neither is the instruction required by it. 

A district court may only abuse its discretion when it fails to instruct the 

jury on the law of the circuit. See Ratliff v. City of Gainesville, 256 F.3d 355, 

363 (5th Cir. 2001) (holding that the district court did not err in rejecting a 

“taint” instruction not required by our precedent). Because Schilling’s proposed 

instructions were not based on this Court’s precedent, the district court did not 

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abuse its discretion by declining to give them to the jury. Thus, we affirm the 

district court’s denial of Schilling’s motion for a new trial.

Our conclusion is supported by the fact that Schilling was able to—and 

did—argue at trial that DOTD’s delay violated the ADA. See Kanida, 363 F.3d 

at 579 (explaining that counsel could argue an inference of pretext even if the 

judge did not include a “permissive pretext” instruction). She raised this 

argument in her opening statement. She testified about the time that elapsed 

between her requests for accommodation and when they were realized. She

questioned DOTD employees about how long it took to accommodate her

requests. And most importantly, undue delay was one of Schilling’s principal 

themes at closing. For example, Schilling’s counsel stated: “I want to remind 

the jury as to what we are talking about here are reasonable accommodations. 

That’s the key word, reasonable. If it’s not reasonable they have broken the 

law. And so the delay . . . is important in determining whether the defendants 

acted reasonably.” Schilling later argued that DOTD’s accommodations, “if 

provided at all[,] . . . were provided too late to be effective.” While it is possible 

that counsel’s arguments were not as impactful as an instruction from the 

judge would have been, Schilling clearly presented her claim that DOTD’s 

unreasonable delay violated the ADA. Accordingly, the district court’s refusal 

to give Schilling’s specific instructions regarding delay did not seriously impair 

her ability to present this claim to the jury. 

In addition, the delay instruction was arguably covered by the jury 

instructions as a whole. The district court instructed the jury in relevant part:

When a qualified individual with a disability requests a reasonable 

accommodation[,] the employer and employee should engage in a 

flexible interactive discussion to determine the appropriate 

accommodation. The interactive process is an informal one 

requiring input not only from the employee but also from the 

employer. The process requires communication and good faith 

exploration. A meaningful interactive process should involve 

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dialogue between the employer and the employee in which they 

both communicate with each other with the goal of determining an 

appropriate and reasonable accommodation.

When an employer fails to engage in a good faith interactive 

process which leads to a failure to reasonably accommodate an 

employee, the employer violates the Americans with Disabilities 

Act. 

Schilling argues that the above instructions implied that failure to engage in 

a good faith interactive process only violates the ADA when there is no 

accommodation at all. These instructions accurately summarized the law of 

this Circuit regarding the interactive process, however. Indeed, undue delay is 

only an ADA violation to the extent it renders an accommodation (if any) 

unreasonable; the statute provides no separate claim for undue delay. As this 

Court has observed, the manner in which an employer engages in the 

interactive process and the speed at which that process occurs inform whether 

the employer has acted in good faith. See Loulseged, 178 F.3d at 737 & n.6. 

These “good faith” instructions therefore substantially encompassed Schilling’s

claim that DOTD’s undue delay in accommodating her disabilities violated the 

ADA.

III. CONCLUSION

For the foregoing reasons, the district court is AFFIRMED. 

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