Short-Lived Denial of Telework Didn’t Harm Worker

 

By Roger S. Achille October 30, 2018
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​A federal district court determined that an employer's initial denial of full-time telework wasn't discriminatory when the employer ultimately granted the request. 

The plaintiff, who is black, worked as an IT specialist at the U.S. Department of Agriculture (USDA). He suffered from chronic low back pain, anxiety and post-traumatic stress disorder that required regular therapy sessions, most of which occurred on Mondays.

In September 2016, the plaintiff submitted a request for a reasonable accommodation in which he asked to have Mondays off, to have a set schedule and that his home be designated as his permanent workstation. The USDA agreed to give him Mondays off, a compressed set schedule Tuesday through Friday, and the ability to telework three days a week.

After one month, however, the USDA removed him from this schedule. So, the plaintiff submitted a second, identical request. The USDA similarly agreed to all of his proposed terms with the exception of his home being designated as his permanent duty station. But three of his white co-workers allegedly were allowed to work from home permanently.

In late February 2017, the plaintiff met with his supervisors to discuss his accommodation requests. At that time, his supervisor cancelled the plaintiff's existing compressed schedule—which allowed him Mondays off—and assigned him a set five-days-a-week schedule. The plaintiff's supervisor denied his alternative request for a "maxi-flex schedule," which would have allowed him to work additional hours to make up for time missed on Mondays to attend his therapy sessions. According to the plaintiff, almost all employees in his division worked on a maxi-flex schedule.

Because of these scheduling changes, the plaintiff had to take leave on Mondays to attend his therapy or other medical appointments. A few days later, however, his supervisors changed their minds and granted the plaintiff's request to telework full time.

In April 2017, the USDA conducted a six-month audit of the plaintiff's time and attendance records after a supervisor was unable to locate the plaintiff even though he was scheduled to be at work. The plaintiff was the only IT specialist subject to an audit. The audit revealed discrepancies in his time and attendance records, and his supervisor proposed the plaintiff serve a 14-day suspension.

The plaintiff sued for race discrimination in violation of Title VII of the Civil Rights Act of 1964. To prevail on a Title VII claim of discrimination, the existence of some adverse employment action is required. An adverse employment action is one that constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. However, not everything that makes an employee unhappy can be considered an adverse action.

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

The plaintiff alleged that the USDA knowingly and intentionally subjected him to different treatment based on his race by denying his requests to telework full time, cancelling his compressed work schedule, denying his request for a maxi-flex schedule, subjecting him to an audit of his time and attendance records, and proposing a 14-day suspension.

The court considered none of these to be adverse employment actions. The court noted that the USDA consistently allowed him to telework three days a week and then ultimately granted his request to telework full time. Moreover, the plaintiff alleged no change in compensation, job title, level of responsibility or opportunity for promotion as a result of these actions but only that he had to use annual leave to attend his medical appointments as a result of his schedule change. Similarly, the court concluded that the audit of the plaintiff's time records and the resulting proposed 14-day suspension did not constitute adverse employment actions because he did not allege that either caused him to suffer any detrimental effect.

So, the court dismissed his race discrimination claim.

Terry v Perdue, D. Md., No. JKB -18-31 (Sept. 19, 2018).

Professional Pointer: Employers should ensure the consistent application of employment policies and practices.

Roger S. Achille is an attorney and a professor at Johnson & Wales University in Providence, R.I.

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