Telecommuting as Reasonable Accommodation

On July 10, 2007, a District of Columbia federal judge ordered the Department of Commerce to pay $303,881 in additional relief for Lisa Bremer, a disabled federal employee, who worked at the Department of Commerce until the Department revoked her right to telecommute three days a week. (Bremer v. Gutierrez, D.D.C. No. 1:03CV01338). In August 2005, a jury determined that Commerce discriminated against Ms. Bremer and violated the Rehabilitation Act (the statute which protects the rights of federal workers with disabilities) when it removed her reasonable accommodation, and awarded her $3 million in compensatory damages for emotional and physical distress. By law, that jury verdict was reduced to $300,000. After the trial, Commerce filed a motion to overturn the jury's verdict but the judge denied that motion.

Although the jury was empowered to award compensatory damages, which could compensate for effects of the discrimination such as emotional distress, physical pain, and out-of-pocket expenses, the jury did not have the authority to decide "equitable relief." Equitable relief can constitute such items as reinstatement, back pay, back benefits and front pay, and are solely within the judge's purview to grant.

After the judge denied the Commerce Department's motion to set aside the jury verdict, Ms. Bremer's attorney filed a motion for equitable relief. Ms. Bremer sought back pay and benefits, from the time she was forced to apply for disability retirement until the date of the jury's verdict - two years and 10 months later - as well as front pay. In addition to lost pay, the benefits Ms. Bremer sought included lost annual leave and the value of the agency's contributions to her Thrift Savings Plan had she remained an employed by the agency, all with interest.

The Commerce Department objected to awarding Ms. Bremer any equitable relief, arguing that Ms. Bremer "voluntarily" resigned her position by applying for disability retirement. The judge disagreed and held that Ms. Bremer was presumed entitled to back pay and benefits because the jury found that she had been discriminated against. The judge did not, however, award front pay because Ms. Bremer could have continued to look for employment after her disability retirement. The judge then ordered Ms. Bremer's attorney to submit a proposed order on the amount of back pay and benefits to which Ms. Bremer was entitled to be paid by the Department of Commerce.

After receiving the proposed order from Ms. Bremer's counsel, with its accompanying expert opinion from an economist, the judge ordered an additional payment of $303,881 to compensate Ms. Bremer for the back pay and benefits she lost because she was unable to work after the Department of Commerce refused to continue to accommodate her multiple sclerosis. The back pay portion of the order was already offset by the amount Ms. Bremer received in disability annuity payments.

In total, as a consequence of its discriminatory act of revoking Ms. Bremer's partial work-at-home accommodation, the Commerce Department of Commerce is now required to pay Ms. Bremer in excess of $600,000. It is expected that Ms. Bremer's counsel will next ask the Judge to order the Commerce Department to reimburse Ms. Bremer for the attorney fees and costs incurred in bringing this matter to justice.

Ms. Bremer was represented by Washington, D.C. lawyer Joseph V. Kaplan, of Passman & Kaplan, P.C.

This article also appears in FEDweek ( www.fedweek.com), a weekly newsletter for federal employees.