DOES THIS FED GET A FULL-TIME TELEWORK FOR PTSD?

The employee was a GS-11 Claims Specialist with SSA working in an office alongside 15 other GS-11 Claims Specialists and two GS-12’s. He was also a combat vet diagnosed with PTSD in 2012. While he worked at home during the COVID office closures, he encountered the following symptoms upon return: feeling overly stressed and worried; marked weight loss; hair lose; forgetfulness; irritability; anxiety; and due to a hostile encounter with a co-worker he testified “I fear for my safely. I have nightmares that he is chasing me around the office with a gun. I’m not sleeping.”  Moreover, the record showed that other employees in the office with physical disabilities were allowed full-time telework because they were unable to drive—a physical disability versus his mental one. When his request to work from home was denied, he  filed an EEO complaint not just alleging improper denial of a reasonable accommodation, but also that he was treated disparately under the Rehabilitation Act.

The agency raised three objections to his request for a reasonable accommodation of full-time telework:

  • SSA said that it he had been working effectively in the office, but EEOC held  that the fact that Complainant, under perceived threat of termination, was able to work in the office, is insufficient to demonstrate that the alternative accommodations “effectively” addressed the impact on Complainant’s disabilities.
  • SSA said it would cause an undue hardship, but the agency only addressed one of the five elements of an undue hardship, and
  • SSA said working at home would bar him from performing some essential functions of his job, but the employee was assigned to the Internet Unit, his PD said nothing about face-to-face interaction with the public, and the agency failed to put forth evidence about how much of his job would require he be in the office.

Consequently, EEOC said he was entitled to his requested accommodation.

But the case did not stop there because the employee also alleged he was treated disparately due to his handicap.  The Rehabilitation Act requires an employee to demonstrate four things to establish a  prima facie case of disparate treatment:

  • they are an individual with a disability;
  • they are qualified to do the essential duties of the position;
  • the agency took an adverse action against them; and
  • there was a causal relationship between their disability and the agency’s actions.

When the employee establishes all four, the burden shifts to the agency to come up with a “legitimate, non-discriminatory reason for taking the action it did,” e.g., denial of full-time telework.

EEOC found the employee met his burden demonstrating all four elements, but the agency’s only defense was that the accommodation would cause an undue hardship.  Given that the Commission had already rejected that argument, SSA lost.  EEOC wrote,

The record reflects that more likely than not, District Manager singled Complainant out because Complainant had a mental disability as opposed to a physical disability. Complainant provided medical documentation establishing that working at the office, even with alternative accommodations, was not as effective as full-time telework as a reasonable accommodation. District Manager disregarded Complainant’s request both before and after receiving this documentation because Complainant was physically capable of coming into work and performing his duties. District Manager indicates in his testimony that a disability that he personally cannot visually confirm (i.e. “invisible” mental disabilities) does not warrant consideration for full-time telework as a reasonable accommodation. District Manager testified that he decided to “recall the majority of individuals with a 100% [telework] accommodation.” Yet, the Agency provided no evidence that this decision and the accompanying new policy was applied to anyone other than Complainant.

Excuse our personal comment, but that is one of the dumber things we have ever heard from a manager. Statements like that are why EEOC reaffirmed that, “Management’s conclusory assertions alone are insufficient to establish undue hardship, particularly for an employer such as the Agency, which has numerous offices and employees.”

So, not only does the employee get his accommodation, but he now gets to demonstrate he is entitled to money as compensable damages for all the misery the agency put him through. That will likely come with attorney fees.  In the meantime, the EEOC requires that the agency train all the employees in the complainant’s office in disability matters, and consider disciplining the manager.

But, here is a twist to the case that would make Alfred Hitchcock proud. The main reason the employee’s PTSD was triggered in the office was that one particular employee had been harassing him about his disability.  So, EEO wrote, “The Agency could also eliminate Complainant’s need for full-time telework as a reasonable accommodation by transferring or removing Coworker from the Tulsa FO. This could be doubly beneficial as the record indicates that Coworker’s disruptive conduct impacted the Tulsa FO’s effectiveness when serving the public.”  That would not undo all the remedies EEOC had already imposed, but it would let it bring the employee back to the office.

For more details, check out Michale S., v. Martin J. O’Malley, Commissioner, SSA, EEOC No. 2023003911 (2024)

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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