EEOC finds USPS employee failed to advise agency of his need for work from home. Complainant filed an Equal Employment Opportunity (EEO) complaint alleging discrimination on the basis of physical disability (back injury) when he was not allowed to return to work while his application for disability retirement was pending. Following an automobile accident, Complainant sustained severe injuries that herniated spinal discs and left him in considerable pain when he attempted to do his work. Complainant was approved for sick leave for a month and attempted to come back to work, but the work exacerbated his back problems and he again left on sick leave and never returned to work. During this same time, the Postal Service was undergoing a nationwide reorganization which resulted in the elimination of virtually all supervisory positions and the creation of new management position. All supervisors nationwide were required to apply for the new positions established through the reorganization. Complainant applied while on sick leave; however, another applicant was selected for the position. Meanwhile, Complainant also filed an application for disability retirement noting that he was no longer able to perform his assigned position and stated that his back limited the other positions he might be reassigned to. While on sick leave Complainant made one attempt to come back in to work, but was told the requirements needed to get him back for a short-term project would take too long and the project would be finished by the time he was approved to return. Ultimately, Complainant’s disability retirement was denied. Following an initial investigation, the Administrative Judge (AJ) issued a decision concluding that Complainant had been discriminated against when the Agency did not let him return to work pending the approval of his disability retirement application. The Agency issued its Final Agency Decision (FAD) rejecting the AJ’s decision and entering a finding of no discrimination, and the Complainant appealed to the Equal Employment Opportunity Commission (EEOC’s) Office of Federal Operations (OFO).

On appeal the OFO noted that the Complainant was an individual with a disability, but whether he was a qualified individual with a disability turned on whether he would have been able to perform his job with a reasonable accommodation. The OFO further noted that at the beginning of the process both the Agency and the Complainant engaged in conversation to create a position that would work for him, but at some point, the communication broke down. The OFO held that it was the Complainant’s job to communicate to the Agency that he needed a work-from-home accommodation, and his failure to do so in any way other than through his disability retirement paperwork led to the breakdown in the interactive process. Noting that liability for failure to provide a reasonable accommodation ensues only where the Agency bears the responsibility for the breakdown, the OFO affirmed the Agency’s FAD finding no discrimination.

Frank P. Faconti v. United States Postal Service, EEOC Appeal No. 01976463 (February 5, 1999)