EEOC ORDERS DOJ TO GIVE EMPLOYEE MAXIFLEX SCHEDULE

All one need do to prove an illegal denial of a reasonable accommodation is show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. For example a DOJ employee had a sleeping disorder as a result of Major Depressive Disorder.  When the employee requested a reasonable accommodation, the Agency implemented a gliding schedule for Complainant. However, this was not an effective accommodation because Complainant still had to report to work between 8 am and 9:30 am. She could not do so 21 times in a 90 day period. So, the agency terminated her.  It did not want to allow her any flexibility after 9:30 am.  DOJ might have won this case because coming to work at a reasonably predictable time and during hours when co-workers are available is a pretty essential part of most jobs.  This employee was a Management & Program Analyst. But…,

and this is a very big but, for some reason the Agency never offered EEOC  arguments as to why providing the employee with a maximum flexible schedule would present an undue hardship. Therefore, DOJ lost. Who knows whether the failure to make that argument was a huge blunder by Agency Counsel or the job did not require regular reporting hours.  The Agency had a legal burden to carry and it did not even try.  As a result, the employee is about to get about four years of back pay with interest, related financial benefits such as TSP contributions, leave, etc.  That is in addition to any compensatory damages up to $300,000.00 she can prove.

The lesson here for the employee representatives is that if an employee asks for a maxiflex schedule accommodation and the agency refuses for no better reason than it does not want to do it, the agency is going to have a hard time disciplining the employee for being late—and the employee’s attorney is probably going to walk away with a very fat fee check. For more details check out Davina W., Complainant, V. Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 0120152757 (2017).