Failure to Accommodate Disability

On March 3, 2011, the Equal Employment Opportunity Commission's Office of Federal Operations (OFO) issued its decision in Bartron v. Department of Defense, EEOC Appeal No. 0720100054. Finding the agency's efforts to reasonably accommodate Bartron deficient, OFO held the agency liable for failure to accommodate Bartron.

Bartron was a GS-13 auditor with the agency's office of inspector general in Arlington, Va. Bartron was diagnosed with cancer in March 2005, and underwent surgery the next month for her condition. After recuperation, Bartron began telecommuting four days per week to transition her back to work. Bartron then began chemotherapy in June 2005. Within a week, Bartron suffered an extreme allergic reaction to the chemotherapy drugs, resulting in severe neuropathy across her entire body. In September 2006, Bartron's first-level supervisor informed Bartron that she needed to be in the office three days per week, and that Bartron could no longer continue on her interim telecommuting arrangement.

In January 2007, Bartron underwent medical testing on her neuropathy. Bartron applied for disability retirement in March 2007. The medical report from the January 2007 testing, which was provided to Bartron's first-level supervisor in March 2007, found disability retirement premature and recommended reasonable accommodations. Eleven days later, Bartron submitted her first request for reasonable accommodation, seeking telework three days per week, simplification of her duties and removal of time constraints in performing her work. Bartron's first-level supervisor denied the reasonable accommodation request in April 2007, and denied reconsideration in May 2007.

In its deliberations, the agency followed its then-standard policy of never looking at possible reassignments as a reasonable accommodation, with the agency's personnel office specifically instructing Bartron's first-level supervisor to ignore Bartron's request for reassignment as a reasonable accommodation. Although the agency did at some point look at possible reassignment positions in connection with Bartron's disability retirement application, it only looked at positions in Bartron's grade level; no examination was made of lower graded positions which Bartron might be able to perform. In May 2007, Bartron received a negative interim performance evaluation. Later that month, Bartron (through her attorney) requested that Bartron's first- and second-level supervisors look at reassignment as a reasonable accommodation. The agency never responded to this second reasonable accommodation request. Bartron then left the agency on disability retirement in July 2007.

Bartron filed an EEO complaint, challenging the denial of her reasonable accommodation request, the interim performance evaluation, agency delays in submitting her request for disability retirement, and the agency's providing the Office of Personnel Management with the wrong date for Bartron's last day on duty (which cost Bartron several weeks of back pay). After a hearing, an EEOC administrative judge found the agency to have failed to accommodate Bartron and to have discriminated against Bartron in providing the wrong date to OPM. The administrative judge ordered Bartron's reinstatement with back pay and attorneys' fees and costs. As evidence of record indicated that Bartron was unable to perform auditing duties at the GS-13 level but would have been able to perform at the GS-9 level, the administrative judge ordered Bartron reinstated to a GS-9 position.

Finding that the agency had not made a good faith effort to accommodate Bartron, the administrative judge awarded Bartron over $93,000 in compensatory damages. The administrative judge further found the agency liable for providing the incorrect date to OPM, noting that the agency proffered no legitimate nondiscriminatory reason for its error. However, the administrative judge found no discrimination in the interim performance evaluation, holding that the mere fact that the poor rating stemmed from an accurate appraisal of Bartron's performance under the effects of Bartron's disability did not render the appraisal into a discriminatory act. The administrative judge further found no evidence of pretext in the agency's professed confusion regarding proper processing of Bartron's disability retirement application (the alleged cause of the delays). The agency rejected the administrative judge's findings and appealed to OFO.

On appeal, OFO affirmed the administrative judge's decision. OFO found that the agency, by failing to examine reassignment positions, failed to accommodate Bartron. In particular, OFO focused on the agency's failure to look for positions at lower grades, noting that while the record showed that Bartron's disabilities would prevent her from performing time-sensitive audits at the GS-13 level, those concerns would not apply to lower level auditor positions which Bartron could have performed at the time. OFO found that Bartron had provided sufficient evidence that a GS-9 auditor position likely would have been available at the time, even though Bartron did not point to any specific such vacancy. Accordingly, OFO ordered Bartron reinstated to a GS-9 position which she would be able to perform given the limitations of her disability, with back pay and interest. In doing so, OFO found that reinstatement was a proper remedy even though Bartron's complaint did not involve an express constructive discharge claim. OFO further found this failure to conduct a proper position search for reassignment posts constituted a failure by the agency to make a good faith effort to accommodate Bartron, rendering the agency liable to Bartron for compensatory damages as awarded by the administrative judge.

* 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.