Employment Law Daily Reassigning employee to job with less promotion potential might violate Rehab Act
Wednesday, July 12, 2017

Reassigning employee to job with less promotion potential might violate Rehab Act

By Lorene D. Park, J.D.

Given evidence that a Department of Transportation (DOT) employee flagged 10 open positions that were at his same grade and that had more potential for promotion than the job to which the DOT reassigned him to accommodate his hearing impairment, plus evidence that he wasn’t qualified for his new position, a federal court in the District of Columbia found genuine disputes of material fact on whether the employer failed to accommodate him as required by the Rehab Act. His retaliation claim also advanced (Harris v. Chao, July 6, 2017, Contreras, R.).

The hearing-impaired employee was hired in 2012 to be a program officer and grant manager in the Federal Motor Carrier Safety Administration, one of several administrations at the DOT. He used a variety of accommodations for his impairment, including sign-language interpreters and a video-phone system. However, he had trouble participating in conference calls with more than 25 people, and this became an increasing part of his job. He struggled because the interpreters had trouble when multiple people spoke simultaneously or speakers did not identify themselves.

DOT’s search for new position. In 2014, he requested reassignment to a different job. The DOT searched informally but found nothing, so it initiated a formal reasonable accommodation reassignment search. During a formal search, an HR rep collects application materials, discerns the employee’s interests, and identifies a list of grades and series for which the employee would be qualified. The materials are sent to a selective placement program manager and to “placement coordinators,” who seek out vacancies in their areas. With respect to the employee, HR identified six types of GS-13 jobs for which he would be qualified, including financial manager, auditor, and accountant. However, the placement coordinators found nothing. A second search produced responses from only three administrations, with no jobs found; the record indicated this poor result was typical for reasonable accommodation searches.

Reassigned to job for which not qualified. The employee’s supervisors were surprised the agency-wide search identified no potential vacancies. Indeed, he had identified many jobs on the USAJOBS site that he believed he was qualified for and emailed the postings to his supervisors and others. There was no evidence that HR or the placement coordinators took any action on the vacancies he identified. Ultimately, the DOT took a “non-traditional” approach and put him in an acquisitions job that was not within the job series for which human resources deemed him qualified. He was given the choice of taking that job or staying put. He accepted the acquisitions job “under protest” because he believed it would reduce his promotion opportunities and was effectively a demotion. The parties disputed whether, in his new position, he was assigned work suitable for his GS-13 level; he claimed he was assigned work that was well below his level.

Failure-to-accommodate claim. Addressing the DOT’s motion for summary judgment against the employee’s failure-to-accommodate claim under the Rehab Act, the court explained that under D.C. Circuit precedent, a reassignment as an accommodation “can only be to an existing, vacant job for which the plaintiff is qualified,” and the applicable regulation instructs employers to reassign to an “equivalent position, in terms of pay, status, etc.” Reassignment may not be used to discriminate by forcing disabled employees into undesirable positions or offices.

Here, the DOT claimed it offered two alternatives—the acquisitions job and a job in the Grants Management Office (GMO). To the court, though, there was a triable question on whether a GMO job was offered to the employee and whether it would have been a reasonable accommodation. The employee testified that he was not offered the GMO position at the relevant time and there was no email or other evidence of a job offer. Also, while the employee had conversations about the GMO, it was not clear that the conversations rose to the level of a job offer. Even if the GMO job was offered, there were triable questions on whether that would have been an effective accommodation because evidence suggested that position had the same conference call problems as the employee’s existing position.

Also unavailing was the DOT’s argument that the reassignment to acquisitions was a reasonable accommodation as a matter of law. First, there was a genuine dispute on whether the employee could perform GS-13 work in the Office of Acquisitions. He also argued, without dispute from the DOT, that the position limited his opportunities for promotion. Thus, the court found a triable issue on whether the acquisitions job was inferior so as to be a de facto demotion. It noted that while the pay and benefits were the same, those were not the only relevant factors and the DOT should also have considered promotion potential, and other aspects of the reassignment.

While the availability of other positions is a consideration, and a demotion could be a reasonable accommodation if there are no other available jobs with the same pay, benefits, and potential for promotion, the court also found triable question on whether there were other open positions for which the employee was qualified. He identified 11 job postings for which he claimed to be qualified and which he flagged to the DOT during the reassignment process. All were at the same grade level; 10 fell within the grades and series for which he was deemed qualified by HR. Accordingly, summary judgment was denied on the failure-to-accommodate claim.

Retaliation claim also proceeds. The DOT’s motion was also denied on the employee’s claim that the reassignment to an inferior position was retaliation for his accommodation request. The DOT did not dispute that he made out a prima facie case and, given evidence that other positions were available for which the employee was qualified, he raised a triable issue on whether the DOT’s reason for putting him in the acquisitions position was pretextual.

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