Discrimination Due to Disability

Wednesday, July 02, 2008

The U.S. District Court for District of Columbia granted partial summary judgment against the Internal Revenue Service (IRS) in Bergman v. Paulson, Secretary of the Treasury, Case No. 06-303, decided May 1, 2008, finding the IRS discriminated against plaintiff because of her disability in violation of the Rehabilitation Act of 1973. The court began its decision by stating that this case presents a “bizarre situation.” The plaintiff was a “highly qualified and experienced specialist in tax law” employed at a GS-14 level, with no substantive work to do, which the IRS did not deny. Because of the lack of substantive work, plaintiff’s mild and controllable depression was exacerbated into a case of severe chronic depression. Therefore, the plaintiff sought as a reasonable accommodation a transfer to the IRS Office of Chief Counsel where she had worked at an earlier time “with distinction.” The doctor hired by the IRS to examine the plaintiff’s medical records “recommend from a medical point of view” that the IRS accommodate her “with a position appropriate to her legal and educational background if there is such a position available in your agency.”

The IRS, however, blocked the transfer. The court noted the IRS took this action “not on the ground that she is not qualified to handle the work, not on the ground that she is not doing the work assigned to her at the IRS–not on the ground that the transfer is legally forbidden–but on the ground that such a transfer is not legally mandated.” The court determined that the “practical result” of the IRS’ position “is that it would rather have the Plaintiff sit at her desk at the IRS doing virtually nothing, receiving a substantial salary ($79,999 in 1999) from the taxpayers of this country, than transfer her to the Office of Chief Counsel, which had 57 open attorney positions during the relevant period of time and where she had already served with dedication and success.”

The IRS argued that it was not obligated to reassign the plaintiff because the Office of Chief Counsel and the IRS were separate appointing authorities. To support its position, the IRS relied on 29 C.F.R. §1614.203(g), which at the time (before it was amended in 2002) provided that as an accommodation an agency “shall offer to reassign the individual to a funded vacant position located in the same commuting area and serviced by the same appointing authority.”

The court pointed out that Congress amended the Rehabilitation Act in 1992 to provide that “the standards used to determine whether this section has been violated . . . shall be the standards applied under . . . the Americans with Disabilities Act of 1990 (“ADA”).” The ADA contains no language limiting the obligation to reassign only to positions within a particular office, branch, etc., but advises that “the extent to which an employer must search for a vacant position will be an issue of undue hardship.” Therefore, even though the EEOC delayed for almost 10 years before amending §1614.203(g) to make it consistent with the ADA, the court held that §1614.203(g) had been invalid since 1992, stating that it “is hornbook law that a regulation that is clearly inconsistent with the plain meaning of a statute is invalid.” Am. Fed’n of Gov’t Employees v. Gates, 486 F.3d 1316, 1321-22 (D.C. Cir. 2007). The court thus concluded that 29 C.F.R. § 1614.203(g) was made invalid in 1992, leaving the IRS without valid grounds for denying the plaintiffs requested reasonable accommodation.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to https://www.passmanandkaplan.com/.

The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Third Edition, a comprehensive overview of federal employees’ legal rights. This book has been selling for $49.95 plus s&h for over two years, but as a special offer to FEDweek readers, we’ve reduced the price to only $29.95 plus s&h.