Fedweek Legal

The MSPB recently overturned an initial decision that found disability discrimination and failure to accommodate a disabled employee resulting in her removal in Miller v. Dept. of the Army, NY-0752-12-0099-I-1 (May 30, 2014).The employee was a legal technician responsible for recording and transcribing proceedings of hearings took place on the fourth floor of a historic building with no elevator.The recording and transcription equipment the employee used weighed 20-30 pounds, and her position description required that she be able to carry it up the stairs of the building herself, which she did.However, following an injury to her knee, she was unable to continue carrying the equipment up the stairs.She requested, and the agency granted, a reasonable accommodation to allow her to continue to perform her duties, moving hearings assigned to her to a courtroom adjacent to her office.This accommodation continued for approximately five years.

In 2010, the agency notified the employee that the hearings could no longer be held in the courtroom adjacent to her office.The agency offered other accommodations, including assistance to allow her to conduct hearings in another office, or reassignment to a lower-graded position.The employee rejected these proposed accommodations, and insisted that the agency allow her to continue transcribing hearings in the courtroom adjacent to her office.When the employee refused alternative accommodations, the agency subjected her to a fitness-for-duty examination which found her disqualified for her position.As a result, the agency removed her from her position for medical inability to perform her duties.

The employee appealed her removal to the MSPB.In the initial decision, the administrative judge found that the agency had improperly removed the employee and engaged in disability discrimination, ordering the agency to cancel the removal and pay back pay.The agency petitioned for review of the decision.Ultimately, the Board found that the agency had proven its charge of inability to perform; the employee’s medical documentation stated that she could not climb stairs, walk long distances or on inclines, or stand for long periods.

It also found that the employee did not prove disability discrimination, finding instead that she refused viable reasonable accommodation options.For example, the employee refused an offer to conduct hearings in a building with an elevator that would not require her to climb stairs.The agency also offered a disability parking pass and made several appointments for the employee to be fitted for and trained on using a mobility scooter to help her get to the hearings.The employee refused these offers.As a result, the Board found that she failed to engage in the interactive process in good faith and upheld the employee’s removal for medical inability to perform.

This case serves as a warning for employees who require accommodations to perform their jobs.Employees should be as flexible as possible in working out what accommodation or accommodations will allow them to successfully perform their duties.If an employee refuses an offered accommodation, s/he should be certain that there is a sound and legally-justifiable reason for doing so.Employees should remember that they are not necessarily entitled to the accommodation that they would most prefer, but only to an effective accommodation.

Correction—The plaintiff’s name in a case cited in the June 11 Federal Legal Corner was spelled incorrectly. The case was Meuwissen v. Dept. of Interior.

* 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 http://www.passmanandkaplan.com/CM/Custom/Federal-Employees-Survival-Guide.asp. This book originally sold for $49.95 plus s&h, but is now available for $29.95 plus s&h.