In its guidance, the Equal Employment Opportunity Commission (EEOC) makes it clear that an employee’s request for reasonable accommodation for a disability can be made in “plain English” and that such a request triggers “an informal, interactive process between the individual and the employer.”¹ Two recent Board decisions highlight that the employee’s role in the process does not end with the request, while a 2011 case illustrates that an agency must not disregard such requests. Combined, these cases demonstrate the importance of both sides taking part in discussions in good faith.²

In Miller v. Department of the Army, 121 M.S.P.R. 189 (2014), the employee’s position required that she record and transcribe hearings. She requested that the hearings be conducted in a location near her office because of difficulties with her knee, and the agency granted this request for more than three years. However, the agency’s situation changed, and it determined that the location for hearings would have to be moved. The agency offered the employee several options in an attempt to accommodate her, but she found none of them acceptable and insisted that the agency must provide the same accommodation that she had received in the past.

Ultimately, the agency performed a fitness for duty exam and then removed the employee for medical inability to perform her duties. The employee appealed the removal to MSPB. The Board held that the employee failed to establish that the agency violated its duty of reasonable accommodation because she was not entitled to the accommodation of her choice and because the agency acted within its discretion to offer her reasonable and effective accommodations, all of which she declined. The Board also held that, in light of the employee’s repeated refusals to accept any of the agency’s numerous offers of reasonable accommodation, the penalty of removal was reasonable under the circumstances.

Similarly, in Brown v. Department of the Interior, 121 M.S.P.R. 205 (2014), the employee was removed for medical inability to perform her duties. On appeal, the Board found that the employee repeatedly thwarted the agency’s many attempts to reasonably accommodate her medical restrictions. The agency had offered to reassign the employee to one of two lower-graded positions, but the employee had “adamantly emphasized” that she would only agree to be reassigned to jobs where she would retain her law enforcement status at an equivalent grade and pay level, for which the medical evidence clearly showed she could not qualify in light of her medical restrictions.

On appeal, the Board noted that reasonable accommodation discussions are meant to be a flexible and interactive process and that courts have required the parties to act in good faith in such discussions. The Board found that the record showed that the employee’s continual rejection of the agency’s offers to provide her with lower-graded positions was “obstructive, not interactive.” The Board held that, in light of the employee’s repeated refusals to accept any of the agency’s many offers to accommodate her, removal was reasonable.

In Miller and Brown, the actions of the agencies were sustained because the agencies had acted in good faith to engage their employees in the interactive process. However, when agencies do not do their part to seek solutions, the outcome of an appeal can be quite different.

For example, in Sanchez v. Department of Energy, 117 M.S.P.R. 155 (2011), the employee worked in a position covered by the “Human Reliability Program” (HRP). The HRP imposed strict physical and mental requirements because of the nature of the work (in this case the shipment of nuclear materials). The employee lost his HRP certification because of a “psychological or physical disorder” and the agency indefinitely suspended the employee for his failure to meet the HRP condition of employment. The employee then requested a reassignment to a non-HRP position. The agency did not offer the employee such a position, even though it later conceded that at the relevant time it may have had vacant non-HRP positions similar to the employee’s position of record. On appeal, the Board held that the employee was entitled to be considered for reasonable accommodation and that the agency had failed to engage in the interactive process. The case was remanded to the administrative judge for a determination as to whether the employee would have been accommodated if not for the agency’s failure to engage in the interactive process.

The lesson: reasonable accommodation discussions are not unilateral. Both parties have the obligation to work together to find a solution, and a party that refuses to do so in good faith can be held accountable.

1. EEOC, EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, www.eeoc.gov.
2. “Good faith” may be a subjective criterion and ultimately a third party adjudicator—such as the Board or EEOC—may decide if actions were taken in good faith.

Reprinted from Issues of Merit, a publication of the Office of Policy and Evaluation, U.S. Merit Systems Protection Board