Employees almost never have the right to demand a reassignment to a different supervisor, job or location. But if the employee has a disabling condition for which a reassignment would be a reasonable accommodation, the employee may have a legally enforceable right to the reassignment. Here’s how.
Start by reading Patricia Barton v. Gates, DOD, EEOC Appeal No. 0720100054 (March 2012). The employee was treated for cancer and during her treatment began having neurological problems. Her doctor recommended that she be reassigned to a job that permitted her to tele-work three days a week, perform less complex duties, and have most any time restraints on her work lifted. DOD denied her requests for reassignment as a reasonable accommodation. Instead, it lowered her appraisal, which led to the employee taking a disability retirement before her health worsened and she was fired.
Soon after leaving the agency, the employee filed an EEO complaint charging the agency with disability discrimination. She argued that the agency had an obligation to reassign her to the lower-graded position if it could not find such a position at her GS-13 level. EEOC agreed that when a disabling condition limits and employee’s ability to think and concentrate, the employee is entitled to a reasonable accommodation under the Rehabilitation Act—even to a lower grade and different series position, unless the agency can show it would cause management an undue hardship.
When all the evidence came out, it showed that the agency had only searched for a reassignment opportunity at her same grade, despite the fact that there were at least 67 vacancies at or below the GS-13 level in various series at the time the employee was seeking a reassignment.
When the agency argued that it was reasonable for it to have assumed that the employee could not perform successfully in a lower-graded position, the employee showed that she could perform them successfully. When DOD further argued that it had been generous in allowing her to telework and given her a equipment to facilitate remote communications, EEOC was more impressed with evidence showing that DOD typically opposed using reassignment as a reasonable accommodation. In short, the agency could not show that it would suffer an undue hardship by reassigning the employee to a lower-graded position.
To correct the situation, EEOC ordered management to reinstate the employee to a GS-9 position retroactive to July 2007, i.e., four years of back pay, less whatever disability retirement she received and other income. That alone should amount to well more than $100,000.
But on top of that EEOC ordered DOD to pay the moving costs for the employee to return to the location in which she previously worked and give her over $92,000 in damages for “emotional pain and suffering, inconvenience severe financial hardship, mental anguish, loss of enjoyment of life, injury to professional standing, and injury to her credit standing.” It also noted evidence of depression, family strain, humiliation, and loss of self-esteem. The Administrative Judge hinted that he would have given even more for loss of her home, moving costs, TSP loses, medical expenses and leave if the employee had submitted evidence during the hearing of those costs being related to her disability. EEOC capped off the remedy ordering DOD to pay over $88,000 in attorney fees, making the grand total more than $300,000.
This case is about as clear a precedent any union rep should need to argue that an employee has a right to a reassignment, even to a lower-graded, different series position, when it could be a reasonable accommodation for a disability. Normally, arbitrators, EEOC, and the courts will require that there be a vacant position and even then the agency can argue that under the circumstances it would cause it an undue hardship. But a grievance or EEO complaint should generate compromise discussions.