Sometimes, workplace conditions can literally make employees sick. That’s what happened to our client, who worked for the Department of Justice as a secretary to a warden for the Bureau of Prisons. She developed a hypersensitivity to the new carpet in her work area. Her doctor diagnosed her with “occupational asthma,” and advised that she not work in carpeted areas. Based on the doctor’s recommendation, she requested an accommodation.
The agency moved her to a different building, and in doing so, took away some of her job duties. Shortly thereafter, the agency gave her a performance rating that was lower than her ratings in past years. And after that, she was required to have a Fitness-For-Duty Exam, known as an FFDE.
EEOC says DOJ discriminated
Our client filed three complaints with the EEOC Office of Federal Operations (OFO). We argued that the agency retaliated against our client by ordering her to report for the FFDE and giving her an unfair performance rating. The OFO agreed. In September 2018, the OFO ruled that the Department of Justice violated the Rehabilitation Act by retaliating against our client because she asked for reasonable accommodations.
“You can’t give a federal employee a reasonable accommodation and then penalize them for that,” said Susan Kruger, the attorney handling the case. “And that’s what the OFO found that the Department of Justice did here.”
The Rehabilitation Act prohibits disability-related inquiries that are not job-related and consistent with business necessity. Here, the OFO found that at the time the agency ordered the FFDE, it already had extensive medical documentation from our client’s physicians, who had diagnosed her with occupational asthma and restricted her from performing her duties in the carpeted area. The OFO also found that the agency lowered our client’s performance evaluation in retaliation for requesting accommodations.
EEOC rules for employee again
On September 27, 2018, the OFO again ruled in our client’s favor by denying the agency’s request for reconsideration. The OFO ordered the Department of Justice to correct our client’s performance rating to “outstanding,” investigate our client’s damages, provide EEO training to management officials, and consider taking disciplinary action against the responsible management officials. In addition, the OFO ordered the agency to post a notice at the correctional institution stating that the EEOC found that a violation of the Rehabilitation Act had occurred at the facility.
“Workplace-induced injuries are real, and employees have the right to seek a safe way to do their jobs,” Kruger said. “And they should not face retaliation when they do so.”
Based on the OFO’s decision, our client is now seeking compensatory damages for pain and suffering, along with attorney’s fees.
Giselle W. v. Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Prisons), Request Nos. 0520180518, 0520180519, 0520180564 (September 27, 2018).