In 2002, an employee who suffered major depression was terminated by the Dept. of Treasury (agency). The removal was primarily based upon many instances of “AWOL” and failing to properly request leave, as well as two confrontational incidents between the employee and her supervisor. An MSPB administrative judge (AJ) reversed the removal because of the agency’s failure to provide reasonable accommodation and ordered the employee reinstated with a short suspension.
The agency never contested that the employee was a “qualified individual with a handicap” entitled to “reasonable accommodation” under the Rehabilitation Act. In fact, for many years, the agency had provided the employee with an accommodation: a later tour of duty. The agency’s Procedures to Facilitate the Provision of Reasonable Accommodation uses this situation as an example of an “accommodation that can easily be provided” — “an employee, who takes anti-depressants that make it hard for him/her to get up in time to get to the office, requests that he/she be allowed to start work at 10:00 am and still put in an 8 hour day.”
However, things changed for the employee after she was transferred to another work location, which had the effect of increasing her commute. The increased commute made the 30-minute accommodation insufficient to ensure that the employee arrived at work on time. At first, the employee would come in late and stay late to make up the time. After her supervisor complained about this practice, the employee requested a revised accommodation. The supervisor ignored the request. After several months of insisting that the employee adhere to her work schedule, the supervisor began charging the employee AWOL and then issuing weekly memoranda detailing the AWOL charges and threatening disciplinary action.
The supervisor’s actions had the opposite effect than that intended – worsening the employee’s depression, and making it harder and harder for her to come in on time, resulting in her coming in later and later, and increasing the instances of AWOL. Despite her escalating depression, the employee requested revised accommodation many times, to various agency officials. None of these requests were acted upon. The employee provided medical information when requested, and the agency’s doctor recommended that the agency accommodate the employee. This recommendation was ignored. Finally, after documenting the employee for over a year, the agency removed her from her position.
The employee filed her appeal with the MSPB, alleging that the agency’s failure to accommodate her disability led directly to the misconduct and thus, the removal should be overturned. The AJ found a direct connection between the employee’s medical condition and the misconduct and that the employee had requested and articulated a reasonable accommodation under which she could perform her job. Moreover, the AJ found that the agency had not shown that accommodation would be an “undue hardship” and that the agency’s position was a “pretext for discrimination.”
In addition, as to the charge that the employee engaged in “unprofessional outbursts” to her supervisor, the AJ did not condone such “outbursts,” but noted that the deciding official had “failed to consider” “whether the employee’s behavior was provoked by [the supervisor’s] insensitivity towards her condition and his continual harassment with memos about her AWOL.” Taking this into consideration, the AJ mitigated the disciplinary action from a removal to a short suspension.
“The cautionary tale for both employees and supervisors,” said Sandra Mazliah of Passman & Kaplan, P.C., attorney for the employee, “is to follow the requirements of the reasonable accommodation procedures carefully.” Ms. Mazliah noted that while she “cautions clients to document their requests in writing and provide reasonable medical information to justify the accommodation, supervisors should also be aware of their obligations under the law.” Ms. Mazliah suggests that supervisors “become familiar with their agency’s policies regarding accommodation and consider each request carefully, leaving their personal opinions regarding the employee’s need for accommodation out of the equation.” Also, noted Ms. Mazliah, supervisors should be aware that they have an obligation to engage in an interactive process with employees. “Even if the employee’s initial suggested accommodation is totally unworkable, this does not eliminate management’s obligation to engage in a dialogue to determine if a workable accommodation can be agreed upon.”
* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.
The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to https://www.fedweek.com/pub/index.php
