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Failure to Reassign Violates Rehabilitation Act

In Petted v. Department of Veterans Affairs, EEOC Appeal No. 0120090266 (Dec. 14, 2011), the Equal Employment Opportunity Commission (EEOC) held that the Dept. of Veterans Affairs (agency) failed to make a good faith effort to accommodate Raymond Petted (complainant) when it failed to reassign him to an available vehicle operator position, for which Petted was qualified to perform the essential functions, and which carried the same grade level as Petted's current position. As a result of its decision, the EEOC ordered the agency: to offer Petted a position as a vehicle operator, or substantially equivalent position; for the agency to award Petted back pay, benefits, and interest; and also to conduct a supplemental investigation to determine whether he was entitled to compensatory damages.

Petted was an air conditioning equipment mechanic, WG-10, at the agency's Atlanta Medical Center in Decatur, Ga. In 2001, Petted suffered an on-the-job injury, which resulted in his contracting asthma and his subsequent sensitivity to mold, dust, bacteria, and harsh chemicals. Petted submitted requests for reasonable accommodation in both December 2005 and April 2006. His requested accommodation was that the amount of time he spent exposed to the irritants be reduced. A reasonable accommodation review committee was convened to determine whether Petted could be accommodated. In March 2006, the committee concluded that there was no apparatus available to shield Petted from the irritants in his position as an air conditioning equipment mechanic. However, it determined that Petted was a "qualified individual with a disability," and recommended that he be reassigned to a new position.

In June 2006, the agency reassigned Petted to a GS-6 clerical position-a significant reduction in grade level. Petted refused to work in this position as he had sleep apnea, which was a problem for this position. Moreover, the Department of Labor deemed the new position to be unsuitable for the complainant as a reasonable accommodation. In December 2006, Petted filed an EEO complaint, based in part upon the agency's failure to offer him reasonable accommodation. After a hearing, the administrative judge found that the agency had taken sufficient steps to reasonably accommodate Petted, and found the offered GS-6 clerical position to be acceptable.

On appeal, the EEOC noted that a "qualified individual," which is defined as a disabled person who, with or without reasonable accommodation, can perform the essential functions of the position held or desired, included not only the position held by the employee, but also positions that the employee could have held as a result of reassignment. The EEOC noted that the agency did not contest the fact that Petted could have performed the duties of the vehicle operator position. Moreover, it noted that this position was available when the review committee had deemed Petted to be a qualified individual with a disability, and recommended that the agency perform a search for all vacant positions. Thus, the EEOC ruled that Petted should have been reassigned to the vehicle operator position. The EEOC further added that the GS-6 clerical position was inappropriate, as it was not equivalent in terms of pay, status, and other related factors, as required by the Rehabilitation Act.

This case, which was based on a complaint filed prior to the amended Rehabilitation Act, emphasizes the role that reassignment plays in the reasonable accommodation process. Termed "reassignment of last resort," by many agencies, federal employees seeking reasonable accommodation should be aware of this avenue and should ensure that their respective agencies are exercising due diligence in exploring this option.

* 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/.

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