I have always counseled federal employees to “trust but verify” when it comes to their agency’s EEO Office and any advice they get from these employees. Largely this is because the agency EEO office offers a lot of unqualified advice that is frequently wrong or glosses over important details that are important for my clients to understand. Less charitably, one might say agency EEO personnel know just enough about EEO law, particularly disability law, to get it completely wrong. Cases like Corrina M. v. Yellen make me question whether this would still be giving the Agency too much credit.

It’s important for federal employees to understand the rules around reassignments and to know when the agency crosses the line into discriminatory or sanctionable conduct. Corrina M. serves as a prime example of how not to handle reassignments as reasonable accommodation. Unfortunately, in my experience litigating against the IRS on disability issues, what happened to Corrina M. in this case is far from exceptional.

In case you’re pressed for time, here are the quick takeaways:

• Federal employees seeking reassignment as a reasonable accommodation should proactively search for suitable jobs, apply for them, and confirm their qualifications, as this can be critical evidence in proving discrimination⁠.
• In EEO cases involving failure to accommodate through reassignment, agencies must conduct thorough investigations into available positions. Failure to do so can result in EEOC sanctions against the agency⁠.
• Federal agencies must treat all disabilities equally seriously and cannot discriminate in offering reassignments based on the type of disability⁠.

The Corrina M. Case:

This case involves a complaint filed by Corrina M. against the Department of the Treasury (the IRS’s parent agency), alleging discrimination based on disability. Corrina M., who worked as a Revenue Agent for the IRS, requested reasonable accommodations due to various disabling conditions, most notably endometriosis.

Endometriosis is a medical condition causing severe and chronic pelvic pain triggered by stress. When her condition did not respond to surgery, Corrina M. requested a reassignment. During flare-ups, Corrina M.’s pain was so profound that she could not drive and had to lie down. Even though Corrina M. was physically capable of performing the essential positions of the position, including stressful field work, she could not do so without significant pain.

Corrina M.’s medical provider furnished documentation stating that the only suitable reasonable accommodation would be reassignment to a position without field work. (Though it’s not mentioned in the case, courts have found that pain caused by a disability is part of the disability and can trigger an accommodation requirement).

She informed the IRS that she was no longer able to do field work and travel consistently, and the stress of her position exacerbated her pain. The Agency response to this request shows just how bad agency management and EEO understand their obligations under the law.

IRS’s inadequate response to the RA Request

IRS management and its EEO office made a number of mistakes in this case. Each one of these is potentially fatal to an agency’s defense. In aggregate, they paint a picture of incompetence.

Agency ‘discretion’ in approving accommodations

Initially, management informed Corrina M. that management had the prerogative to grant or to deny a request for a reassignment. Agencies frequently like to characterize compliance with federal statutory law as at their “discretion” when it comes to their own actions.

Federal statutory law is generally mandatory, not discretionary. In reassignment cases, agencies should follow the law rather than exercise discretion. Unfortunately, reasonable accommodations under the Rehabilitation Act are often not taken seriously, as appears to be the case in Corrina M. The IRS’s characterization of its responsibilities reveals a toxic and ultimately unlawful attitude towards disability rights.

The EEO coordinator closed the request inexplicably

The RA Coordinator, noticing Corrina M.’s pandemic-related telework, inexplicably unilaterally closed the reassignment request without consulting her, assuming it was no longer necessary. According to the coordinator, because Corrina was given telework, she did not need an accommodation.

Corrina had to contact her manager to advocate to the RA Coordinator to re-open the request. Federal Occupational Health, which reviews medical documentation for some reasonable accommodation requests, indicated that her condition constituted a disability and recommended an accommodation.

Closure and other delays cause employee to miss reassignment opportunities

The EEOC Coordinator’s closure significantly delayed the reassignment process, resulting in missed opportunities for Corrina M.’s placement in two positions that she applied for and had been found to be minimally qualified for.

Under the Rehabilitation Act, federal employees seeking reasonable accommodation through reassignment are generally entitled to be placed in a position for which they are qualified without competition.(1) That did not happen here.

Corrina M. contacted the hiring managers for these position, itself not an easy task, and they admitted to her that she was qualified but was not being considered for the position because she was not the best qualified.

Corrina M. notified various EEO supervisors and manager that the window for reassignment was closing, as these positions were already in the process of interviewing. Very soon after this, the positions closed and were filled.

Agency management tries to cover up its failures, offers lower-graded position

At this point, the agency’s Associate Director contacted Corrina M. and tried to convince her to withdraw her reasonable accommodation request and even suggested that the accommodation had not been approved, four months after she first requested reassignment and days after the agency missed the opportunity to reassign her to one of these positions.

Management continued to consider Corrina to be able to perform the essential functions of the position because she was currently performing them while on Covid-related telework. Finally, the Agency only offered Complainant a lower-graded position, forcing her to choose between termination and taking a downgrade. Corrina M. reluctantly did so, but kept her case open.

The IRS’s inadequate investigation

The IRS’s EEO office, faced with a claim of failure to accommodate through reassignment, was responsible for conducting an impartial investigation into the reassignment efforts the agency undertook. According to the EEOC, it utterly failed to do that.

Agencies must create an “adequate” record on investigation

Agencies must create an “adequate investigation record” that includes a thorough review of the circumstances, treatment of similarly situated employees, and relevant policies, while identifying and obtaining all relevant evidence, regardless of its potential impact on the outcome.(2)

The EEOC requires that where a federal employee alleges a failure to accommodate through reassignment, the investigator must obtain information about vacant, funded positions (including those beyond what Complainant can identify), and provide the complainant the opportunity to explain how they were qualified for the position.

The IRS failed to do an adequate investigation, drawing EEOC sanctions

The IRS’s EEO office apparently failed to collect any information about jobs other than what Corrina M. herself provided. The record contained no information about even what the agency did to search for positions. The EEOC found there to be “glaring deficiencies” in the report of investigation. Given that these might otherwise prevent Corrina from being able to prove her case, the EEOC issued a sanction of an ‘adverse inference’ against the agency that she would have qualified for positions

An EEOC sanction for an adverse inference is a powerful tool that helps complainants by assuming certain facts in their favor when the agency fails to properly investigate or provide necessary information. In this case, the adverse inference means the EEOC assumed Corrina M. was qualified for positions, effectively shifting the burden to the agency to prove otherwise and strengthening her case despite the inadequate investigation.

EEOC Finds Discrimination on Two Counts

The EEOC found that the Agency discriminated against Corrina M. in two distinct ways when it failed to place her in one of the positions she provided to the RA Coordinator.

First, the EEOC determined this constituted disparate treatment (a form of discrimination) for three reasons: Corrina M. was denied positions while non-disabled hardship transfer employees were granted them; the agency’s errors were so egregious they amounted to an inexplicable level of “bad faith”; and the agency failed to take her disability seriously, in contrast to another employee who was reassigned due to sickle-cell anemia.

Second, The EEOC found find that the Agency failed to accommodate Corrina M. in reassigning her as a reasonable accommodation. The EEOC found that the agency’s multiple delays prevented them from taking action that was time-sensitive to place Corrina M. in an open, available position. She identified two such positions while they were still open, and for which she had been deemed qualified, but the Agency’s inaction for months meant that the Agency missed the opportunity to reassign her. The EEOC found that this was a failure to accommodate.

Ultimately, the EEOC ordered the IRS to place Corrina M. in a GS-11 position and required the Agency to provide compensatory damages and to pay attorneys’ fees, among other remedies.

Lessons for Federal Employees Seeking Reassignment

There are a number of important lessons on both sides coming out of this case. The IRS’s conduct in (failing at) searching for a reassignment position and then (failing at) investigating the circumstances of the case offer valuable lessons for federal employees to know what to look out for and for agencies to avoid.

Employees should apply for jobs during reassignment

Employees seeking reassignment can be their own best advocates by finding jobs, applying for them, and getting confirmation that they are qualified for the position. For Corrina M., the fact that she found alternative jobs and contacted the hiring managers was critical for proving that she was qualified for these positions, despite the agency’s response. The EEOC relied on this search heavily in finding that the agency denied her an accommodation.

Investigations must include job search details

When pursuing an EEO case against the agency for failure to accommodate through reassignment, the agency’s investigation into available positions is an important step that the agency overlooks at its own peril. In this case, the investigator never asked for various pieces of critical information, most importantly for documentation of available positions. As the EEOC made clear, agencies cannot use the lack of an adequate investigation to be the basis for finding no discrimination. The EEOC can issue sanctions to ensure that federal agencies do not profit from their own wrongdoing in failing to conduct an adequate investigation.

All disabilities are serious; none is more serious than another

Federal agencies must treat all disabilities as serious. An agency cannot offer reassignment to employees with one type of disability while denying it to employees with another type of disability. In Corrina M., the agency apparently provided a reassignment in remarkably similar circumstances to another employee with sickle-cell anemia.

If you are seeking a reassignment through reasonable accommodation, you may be dealing with similar bad faith from EEO personnel. Having an attorney evaluate your case and assist you through the process can be invaluable to avoid up front results like Corrina M. faced. If you need assistance with obtaining reasonable accommodations from federal agencies, contact an attorney experienced in handling federal employee matters.

Footnotes

Cited Generally: Corrina M. v. Yellen, EEOC Appeal No. Appeal No. 2022001028, (July 10, 2023)⁠ [EEOC Link]

(1) See 29 C.F.R. § 1630.2(o)(2)(ii).

(2) EEO MD- 110 at § IV.C.