In the vein of “man bites dog,” I particularly enjoyed a recent case in which an employee claims that her employer – the Equal Employment Opportunity Commission (?!!!) – failed to accommodate her disability. Yes, the federal agency charged with the enforcement of the Americans with Disabilities Act – the same agency that broadly interprets the ADA in favor of excessive coverage (we’re all disabled, don’t you know?) – the same agency that finds all manner of ridiculous accommodations to be “reasonable” (light duty for everyone!!) – the same agency that is all too willing to find violations of the ADA by innocent employers (my poor clients!) – that agency is now itself charged with failing to comply with its obligations under the ADA!

In Buie v. Berrien (Jacqueline Berrien was the former head of the EEOC), the plaintiff, who worked at the EEOC’s Washington D.C. office, suffered from lung disease and chronic asthma. She requested an accommodation of a private office equipped with an air purifier or, alternatively, to be permitted to telework. The head of the office refused to let her telework and said there were no private offices currently available for her use. The plaintiff was assigned to an open-air cubicle, where her air purifier was ineffective because of the large space. Following surgery for her condition, the plaintiff repeatedly communicated with the Disability Coordinator for the office about her accommodation needs, without success. After several months, she concluded that she was not going to be accommodated in the Washington office. Consequently, she requested and was granted a transfer back to the Charlotte office where she had previously worked and could be provided with a private office and the option to telework – although she was not given the mediator position she wanted and had to take a demotion in grade level. Seven months later, she retired on disability.

The plaintiff then sued the EEOC for failure to accommodate her disability, among other things. Upon receiving the Complaint and before the case proceeded any further, the EEOC moved to dismiss her Complaint, arguing that she failed to state a plausible claim. The EEOC stated that her requested accommodations of a private office and/or telework were not available in the Washington office, and that it granted her an accommodation by facilitating her return to Charlotte. The federal district court, however, found that the plaintiff had made sufficient allegations in her Complaint to allow her claim to proceed- at least with regard to the telework. The court determined that there were questions of fact about whether the plaintiff had to be physically present in the workplace, as the EEOC contended, to perform her job.

The court did agree with the EEOC, however, that the failure to accommodate claim should be tossed as to the private office, since the EEOC was able to demonstrate that there were, in fact, no offices available and that it continued to look for an office until the plaintiff decided to ask for the transfer. In addition, the transfer/demotion claim was also dismissed because the employer is not obligated to provide the accommodation the employee prefers (in this case, the mediator position). Further, the plaintiff could not demonstrate that she could perform the essential functions of that mediator position, which would have required her to be in the office.

Now it may be in the end that the EEOC will be able to demonstrate that the plaintiff’s requested accommodation of telework was unworkable or disruptive or otherwise unreasonable. We’ll have to wait to see how it plays out as the case proceeds through discovery and a possible trial. But in the meantime, I’m just enjoying watching the EEOC on the hot seat for once.