THE “DESIRED POSITION” YIELDS 13 YEARS OF BACK PAY

Amanda was reassigned to a position that she was not able to do as a result of her disability. When she asked for a reasonable accommodation, the agency merely pointed to her own doctor’s explanation that she could not do the job with or without an accommodation. So, out the door the agency tossed her. Her response was that the agency was obligated to consider her not just the position she held at the time, but positions she was willing to take.  EEOC agreed with her noting that the agency was obligated to consider a qualified disabled person for openings in her present job as well as “desired” jobs or jobs she is otherwise capable of performing with or without an accommodation. The Commission went on to write:

Therefore, in determining whether an employee is a qualified individual with a disability, an agency must look beyond the position which the employee presently encumbers. Id. In this case, Complainant held many positions over the course of her career, prior to her involuntary reassignment to the Sales/Services Distribution Associate position, and there is evidence that she was able to perform the essential functions of a number of other positions with the Agency…. If there is no vacant, equivalent position, the employer must reassign the employee to a vacant lower-level position for which the employee is qualified.

Given that the agency failed to show there were no vacancies in other positions or that it would be an undue hardship to move her to one of those positions. It also ordered the agency to reinstate her retroactive to 2010, to pay any compensatory damages the employee could prove, and to toss in some extra cash to cover the income tax hit from receiving such a large sum at one time.

For details, check out Amanda Serbin, v. Louis DeJoy, Postmaster General, USPS, EEOC No. 2021004968 (2023)