EEOC Decision Details Everything a Manager Should NOT Do

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By Meghan Droste, March 16, 2021

When I started writing this article, I was planning to make the headline something about not being an ostrich. This seemed like a somewhat amusing way to highlight one of the points from the case I’m bringing to you, Thomasina B. v. Department of Defense, EEOC App. No. 0120141298 (Feb. 9, 2021). The point being that supervisors shouldn’t ignore obvious evidence of harassment — so don’t stick your head in the sand … hence, the ostrich — and should instead take action right away.  But the more I thought about it, the more I realized that didn’t quite capture the issue in Thomasina B. because the supervisors in this case didn’t just ignore the harassment, they actually participated in it. They also failed to take any appropriate action to end it. Also, fun fact I learned in the process: It turns out that the whole ostriches burying their heads in the sand thing is a myth. The more you know.

So, what is actually going on in Thomasina B.? It’s a textbook case of everything an agency shouldn’t do in a harassment case. The issues started when the complainant’s ex-husband, who also worked for the agency, started rumors that the complainant was a lesbian and that she was in a relationship with another coworker (CW1).

As the Commission found, there was evidence that nearly everyone in the workplace, coworkers and supervisors, were aware of the rumors.  Rather than putting a stop to them, some of the complainant’s supervisors helped spread them.  They also repeatedly took actions against the complainant based on the rumors. They moved her to a different location, told her not to enter the building CW1 worked in, and denied the complainant’s request for a minor schedule modification all because they believed the complainant was spending too much time socializing with CW1 and not enough time doing her own work. The Commission found no evidence that the complainant was doing so. She received a fully successful performance rating, so her performance wasn’t suffering. At least one supervisor wanted her to work more in the same building as CW1, and the supervisors never had an issue with any other employees socializing during the workday. This wasn’t a case of burying their heads in the mud like a flamingo (another bonus animal fact for you), this was a case of supervisors engaging in harassment and opening the agency up to liability.

Unfortunately for the complainant, the harassment did not end there. For nearly a year, another coworker (CW2) repeatedly harassed the complainant because of CW2’s beliefs about the complainant’s sexual orientation. The harassment included CW2 telling the complainant that she was going to hell, that homosexuality is an “abomination,” and that the complainant was harming her children because of her “lifestyle.”

When the complainant reported the harassment to a supervisor, she requested that the agency move CW2 away from her. The supervisor asked CW2 if she wanted to move and when she declined to do so, the supervisor did not take any other action. He didn’t move anyone, he didn’t tell CW2 to stop, and he didn’t investigate the harassment.

The agency issued a FAD finding no liability. It concluded that although CW2 harassed the complainant because of her sex, the agency was not liable because it took appropriate action once it learned of it.

The Commission, unsurprisingly, did not agree. It found the agency liable for two years of harassment by both coworkers and supervisors. I encourage you to read the Commission’s decision in this case, and use it as a blueprint of everything you should not do. Droste@FELTG.com

Tips from the Other Side: It All Starts With a Good Faith Effort

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By Meghan Droste, March 16, 2021

This month, we continue our discussion of religious accommodations. In January, we looked at what an agency needs to do to establish that providing a religious accommodation to an employee would be an undue hardship (namely that there would actually be some kind of burden or hardship). This month, we’re going to take a step back in process and look at what an agency must do before it can even think about raising the issue of a hardship.

An agency cannot put forward a defense of undue hardship unless it can show that it made some effort to accommodate the complainant. This does not have to be the accommodation the complainant requested. If that accommodation would require more than a de minimis burden, the agency can look at alternative accommodations. But it must show that it made a good faith effort to provide some kind of effective accommodation before it can deny a request because of the burdens associated with it.

The Commission’s decision in Mac O. v. U.S. Postal Service, EEOC App. No. 0120152431 (Nov. 29, 2017) provides a good illustration of what an agency needs to do. In this case, the complainant’s position as a city carrier assistant required him to work up to six days a week, twelve hours per shift, including holidays, Saturdays, and some Sundays. After working for about one month, the complainant submitted a request to not work from sunset on Friday to sunset on Saturday for religious reasons. The agency denied his request, saying that granting it would require the agency to pay overtime to other employees.  When asked what efforts the agency made to provide an accommodation to the complainant, his supervisor testified that she wasn’t aware of any.

In its decision, the Commission agreed that having to pay overtime to other employees would be more than a de minimis burden on the agency. However, the Commission still found in the complainant’s favor on this issue.  Why?  As the EEOC noted, “it bears repeating that the Agency cannot raise the issue of overtime or any other financial or logistical issue as an undue hardship until it demonstrates that it made a reasonable effort to find an accommodation that would enable Complainant to practice his religion without having to worry about losing his job.”

In Mac. O., the agency made no effort to determine whether it would be possible for the complainant to swap schedules. It also failed to consider the complainant’s request for a transfer to a location that was closed on Friday evenings and Saturdays. Now it’s possible that schedule swaps wouldn’t have been possible or that there was no available position to transfer the complainant to, meaning that the agency couldn’t have accommodated him without an undue hardship. But because the agency made no effort, let alone a good faith effort, to look into these possibilities, the Commission found it liable for failing to accommodate the complainant.

Just as with requests for disability-related accommodations, make sure you are making a good faith effort to actually provide accommodations before denying a request.  Doing so will save you the headache of unnecessary litigation, and will also make sure your agency’s employees can stay on the job and keep working. Droste@FELTG.com

Don’t Abuse the Abuse of Process Dismissal

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By Meghan Droste, February 10, 2021

Happy February, FELTG readers! Although a certain rodent recently predicted six more weeks of winter, I know I have already turned my thoughts to spring and the warm weather it will hopefully bring. I don’t need a groundhog to tell me that it will still be many months before I will be able to teach any in-person classes, but I’m also looking forward to getting back into the swing of teaching with the virtual programs we have coming up this spring.

One of the topics that comes up in many classes I teach is when an agency can or should dismiss a formal EEO complaint. When we discuss the various reasons listed in 29 C.F.R. § 1614.107(a), I often get questions about 107(a)(9), which allows agencies to dismiss complaints when they are “part of a clear pattern of misuse of the EEO process.” The Commission gives agencies some guidance directly in the regulation: There must be “(i) Evidence of multiple complaint filings; and (ii) Allegations that are similar or identical, lack specificity or involve matters previously resolved; or (iii) Evidence of circumventing other administrative processes, retaliating against the agency’s in-house administrative process or overburdening the EEO complaint system.” See id. So how many complaints are enough to meet the standard?  And how similar do the complaints need to be?

The Commission recently looked at this issue in Jeffery J. v. Department of the Navy, EEOC App. No. 2020004860 (Dec. 2, 2020). The complainant filed his formal complaint alleging a discriminatory non-selection on June 21, 2020. The same day, the agency issued a FAD dismissing the complaint as an abuse of the EEO process. The reason? The agency said the complainant had filed eight other complaints against the same installation over the past 10 years.

The Commission reversed the FAD, finding that filing numerous EEO complaints was not enough on its own to meet the standard for abuse of process. Instead, the agency needed to “show evidence that somehow in filing numerous complaints a complainant specifically intended to misuse the EEO process.”

The Commission pointed to two prior decisions to distinguish the issue. In Wiatr v. Department of Defense, the Commission found no abuse of process when the complainant filed more than 40 complaints in order to end alleged discrimination, while it found there was an abuse of process in Abell v. Department of Interior, in which the complainant filed 40 non-selection complaints with no intention to accept a position.

The Commission also rejected the agency’s argument that the complaint was an abuse of process because the complainant’s complaints had been similar, none had been successful, and he allegedly had a “personal grudge” against an agency official. It found that the agency had no evidence that this complaint was abusive, rather than just one in a series of complaints.

I’m sure that some of you can think of a complainant who is a repeat customer (although 40 times is probably an outlier!). You might find yourself getting frustrated, but don’t let that frustration color the process. Complainants who have filed more than one complaint have just as much of a right to engage in the EEO process as someone coming to your office for the first time. Droste@FELTG.com

Tips from the Other Side: Understanding the Religious Accommodation Process

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By Meghan Droste, February 10, 2021

This month, we continue our look at religious accommodations. As I mentioned last month, while there are some similarities with accommodating disabilities, there are ways in which responding to a request for religious accommodations may differ. One way is what you can and can’t ask in terms of determining whether an employee is entitled to an accommodation. While it is relatively common to need documentation to establish that someone has a disabling condition that impacts the ability to perform the essential functions of the position, things are a bit different when it comes to religious accommodations.

If an employee requests accommodation for a religious belief or practice, the request needs to include an assertion that the employee has a sincerely held religious belief or practice that is tied to the need for the accommodation. I often get questions in classes about what an agency can do to determine this.  Can you ask for more info?  Can you push back when the belief or practice seems “strange” to you?  Let’s look at one of my favorite cases to illustrate some of these issues …

EEOC v. Consol Energy, Inc., 860 F.3d 131 (4th Cir. 2017) comes to us from the private sector, but is a great example. The Commission sued on behalf of an employee, Mr. Butcher, at a mine in West Virginia.  In 2012, the mine implemented a biometric hand-scanner to monitor employee attendance. Mr. Butcher objected, stating his belief that the hand-scanner represented the Mark of the Beast. He asked to be exempt from the requirement of using it. The company provided printed information from the manufacturer of the scanner stating that it did not place the Mark of the Beast on anyone. The manufacturer suggested that using one’s left hand should alleviate any concerns because, in its interpretation of Scripture, the Mark of the Beast would only appear on one’s right hand. Mr. Butcher objected and again asked to sign in and out in another manner because he believed using either hand would violate his understanding of his faith. The company refused to provide other accommodations and reminded him of its progressive discipline policy—within three times of refusing to use the scanner, Mr. Butcher would be fired. He chose to retire instead and then contacted the EEOC.

At trial, the company tried to defend its position by saying the Mr. Butcher’s own pastor disagreed with his interpretation of whether the scanner would leave the Mark of the Beast. Counsel for the company began oral arguments before the appellate court by quoting from Scripture, in an apparent attempt to show that Mr. Butcher’s position on the Mark of the Beast was wrong. None of this mattered though. As the lower court and then the Fourth Circuit concluded, it was Mr. Butcher’s belief, and not the beliefs of his pastor, his employer, or the manufacturer of the scanner, that mattered. Mr. Butcher believed that using the scanner would be a violation of his sincerely held religious beliefs and the inquiry should have stopped there.=

(Fun fact: The company was providing accommodations to employees who could not use the scanner for physical reasons at the same time that it denied Mr. Butcher’s request.)

What does all of this mean? If you find yourself starting to question a person’s religious beliefs, not because you think they don’t actually believe them, but because you don’t share the same beliefs, you’re probably starting down the wrong path. Droste@FELTG.com

EEOC Measures Impact of COVID-19 on Complainant’s Missed Deadlines

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By Meghan Droste, January 11, 2021

Happy New Year, FELTG readers! Congratulations, we all made it­ — we survived and it’s no longer 2020. It’s a great feeling. And yet, I can’t help but acknowledge the clouds that still linger. We’ve started new calendars and have to adjust to writing a new date, but of course it’s not like everything magically got better or went back to normal (whatever that means) at the stroke of midnight. We may be starting to see a light at the end of the tunnel, but we’ve still got some work to do until we reach it.

I say all of that not to bring down whatever hopeful mood you may be in, or to take away from whatever you are focusing on to just get through this, but as a reminder that so many issues from last year are still here. One of the things that sadly did not disappear at 12:01 am is COVID-19.  While it’s not the top story this week, it is still here and we’re going to be feeling and seeing the impacts of it for some time to come.

In the legal world we are just starting to see some changes in terms of new case law. It’s too soon to have definitive answers on many questions (Is COVID-19 a disabling condition?  Is firing someone because they might be at greater risk of COVID-19 a form of disability discrimination?). However, we have at least one EEOC decision regarding the impact of the pandemic on the processing of federal sector complaints.

In Natalya B. v. U.S. Postal Service, EEOC App. No. 2020005270 (Nov. 30, 2020), the complainant filed a formal complaint of discrimination in March 2020. The Agency issued a Final Agency Decision in July 2020 dismissing the complaint for failure to cooperate. It found that the complainant failed to complete the affidavit sent to her by the investigator, even after warning that failure to return the packet could result in dismissal of her complaint.

In her appeal, the complainant outlined the impact of the pandemic on her ability to complete the affidavit. First, her children’s school and day care facility closed. Then her son’s father became ill with COVID-19, followed by his grandparents and aunt. The complainant also explained that she was nine months pregnant at the time all of this occurred. She assured the Commission that her personal circumstances had improved since the spring and that she would be able to participate in the processing of her complaint.

Although the Commission is generally strict when it comes to deadlines for complainants in the formal complaint stage, the Commission reversed the agency’s dismissal. It found that the deadlines for the processing of a formal complaint are “subject to waiver, estoppel and equitable tolling” and that it was appropriate to exercise its authority in this situation.  Specifically, the Commission found it was appropriate to excuse the complainant’s failure to timely respond “given the unique impact that Covid-19 had on her family as well as her pregnancy.”

The Commission was clear in its decision that it reversed the agency’s dismissal based on the “unique facts” of the case. I don’t expect that everyone who points to COVID-19 or the pandemic as a reason for missing a deadline will get an automatic pass, but I won’t be surprised to see more decisions in the future giving some leniency due to the extraordinary nature of events from the past 10 months. Droste@FELTG.com

Tips from the Other Side: Undue Hardship and Religious Accommodation

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By Meghan Droste, January 11, 2021

It’s a new year, so I have a new focus for my tips for you this month. Well, sort of a new focus. I spent the last few months of the year-that-shall-not-be-named bringing your attention to issues related to accommodating employees with disabilities. As promised, we’re moving to a new topic this month, but it still involves accommodations. This time, I want to focus on handling requests for religious accommodations.

Agencies are required to provide accommodations for religious beliefs and practices unless doing so would present an undue hardship. In contrast to disability cases, the bar for undue hardship in religious accommodations is fairly low: Anything that would require more than a de minimis cost to the agency is an undue hardship. Agencies still often trip over this bar in denying requests for accommodations without any evidence that the accommodation actually would be a hardship.

The Commission’s recent decision in Frances A. v. Department of Justice, EEOC App. No. 2019004187 (Nov. 30, 2020) provides a good example of this. The complainant served as a chaplain at a federal correctional facility. In early 2017, the warden issued a memo requiring all employees who worked in duty stations beyond the control center to carry pepper spray with them. The policy initial exempted chaplains from this requirement, but the agency rescinded the exemption a week later.

In March 2017, the complainant requested an exemption from the requirement to carry pepper spray, citing his religious beliefs that prevented him from carrying a weapon. Three months later the warden denied the complainant’s request on the grounds that it was an undue hardship.  The warden stated that if the complainant did not carry pepper spray it would result in a “significant impact” on facility operations by reducing the number of staff who could respond to emergency or requiring other staff to assist the complainant. Five months after the denial, the agency reversed its position and granted the complainant’s accommodation request.

In its decision on the failure to accommodate complaint, the EEOC found that the agency had no evidence to support its assertion that the granting the complainant’s request would result in an undue hardship on the agency. As the Commission noted, the claim that it would result in a “significant impact” on facility operations was questionable when there were 300 employees who were required to carry pepper spray, and the complainant represented only 0.33 percent of those employees.

As happens too often, it appears that the agency simply pushed back reflexively on the complainant’s request for accommodations rather than making an effort to really consider whether it was possible to grant it (or to provide an alternative accommodation).

The lower threshold for establishing an undue hardship should not be read as a free pass to choose not to provide accommodations when the agency would rather not. The agency must still have some real evidence to point to before denying a request. Droste@FELTG.com

Should Old Dismissals Be Forgot: EEOC Reverses More than A Third of Procedural Dismissals

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By Meghan Droste, December 15, 2020

Somehow, despite it still feeling like it’s just April or May, it’s that time of year again — time to look back on where we’ve been (at home) and what we’ve done (a lot of video calls). In that spirit, this month I’m highlighting an interesting statistic from the Commission’s look back at fiscal year 2019 and adding in some data of my own from recent months.

In its Fiscal Year 2019 Annual Performance Report, the Commission provides updates on its performance in several areas, including closing hearing requests and appeals that have been pending for a lengthy period of time, and the number of findings in favor of complainants and appellants. The Commission notes that it resolved more than 4,000 appeals in FY19, with 37 percent of the appeals resolved within 180 days of their receipt. Also, 762 of the appeals it resolved in FY19 were appeals of procedural dismissals of complaints, when an agency dismisses a complaint before engaging in an investigation. The Commission highlights that it reversed more than 34 percent of the procedural dismissals, remanding them back to agencies for continued processing.

This number stood out to me because it matches what I have observed in my own practice — that the Commission is moving quickly to address and reverse improper dismissals — and because it seems like such an easy fix for agencies. With more care, and possibly more training for EEO staff, agencies can avoid defending unnecessary appeals. But wait, this is “old” data, you might be thinking, from a prior fiscal year. Maybe this was a fluke or agencies have already improved. Well, I’m here to tell you that neither of those things appear to be the case.

I conducted a completely unscientific and not-guaranteed-to-be-statistically-significant review of some recent EEOC decisions and found that the same appears to be true this year. From October 1 through November 19, the Commission issued 204 decisions that contain the phrase “Agency dismissed.” I reviewed a sample of 50 of those cases and found 40 cases in which the Commission issued a substantive decision on the issue of a procedural dismissal. The most common reasons for the dismissals were untimeliness (29), failure to state a claim (20), and raising a claim that was raised in a prior complaint (10).  (Before you question my math, some agencies dismissed claims for multiple reasons in the same case.) The Commission reversed the dismissals in at least 30 percent of these categories, reversing 40 percent of the dismissals for claims raised in a prior complaint.

Hopefully, we’ll see a reversal of this trend in the new year, and you can avoid revisiting cases your agency has improperly dismissed. In order to do so, I recommend reviewing a few of the recent decisions for a refresher on what an agency needs to prove in order to prevail on an appeal of a procedural dismissal. Droste@FELTG.com

[Editor’s note: If you’re looking for training that covers the gamut of EEO issues, and provides usable guidance for all practitioners, regardless of experience level, register for EEOC Law Week, which will be held virtually March 15-19, 2020.]

Tips from the Other Side: Reassignments and Reasonable Accommodation

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By Meghan Droste, December 15, 2020

We’ve made it, readers. It’s finally the end of 2020 and that seems like as good a time as any to wrap up our ongoing look at reasonable accommodation issues in this space.  I’m sure we’ll touch on them again at some point in 2021, but for now let’s look at one more area in which I see agencies struggle when it comes to handling requests for accommodations: searching for reassignments.

As a complainant’s representative, I often get involved in reasonable accommodation issues for my clients before litigation.  Obviously the preference is to find a way to accommodate a client’s needs in the current position. Unfortunately, there are times when this isn’t possible.

At that point, we move to discussing a reassignment.  When this happens, I have found agencies often make one of two mistakes. The first is to take far too long in searching for a reassignment. I know, and explain to my clients, that these things don’t happen overnight.  But too often it seems that agencies move very slowly in searching for vacant positions, waiting months before offering a potential position.

As I have mentioned before, the answer to the question of how long is too long to provide an accommodation is very fact-specific, so if your search starts to drag on, you should be sure you have clear documentation of all of the steps you have taken to locate a position.

The other common mistake is that agencies improperly limit the search for a position. I have seen agencies limit the search to only positions at the same grade level, forgetting that if none are available, the agency must search for a position at a lower grade. I have also seen agencies only search for positions in a specific geographic area. As the Commission emphasized in a recent decision, an agency’s obligation “to offer reassignment is not limited to vacancies within a particular department, facility, or geographical area.”  See Lisa C. v. U.S. Postal Serv., EEOC App. No. 2019005689 (Nov. 16, 2020). This means that “absent undue hardship, the agency must conduct an agency-wide search for vacant, funded positions that the employee can perform with or without reasonable accommodation.” See id.  While it may make sense to start the search in the location in which the employee already works, that should not be the only search or the end of the search.

Finally, if an employee identifies a potential position for reassignment and the agency rejects it, be sure you can articulate a reason why. In my own work, I have seen agencies outright reject a potential option but give no reason why.  In the Lisa C. case, the complainant identified a position at another facility and it appears the agency made no effort to consider it. As a result, the Commission found the agency failed to accommodate the complainant.

Good luck out there and happy new year! Droste@FELTG.com

Compound the Pain: When EEOC Orders Agencies to Pay Interest on Damages

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By Meghan Droste, November 17, 2020

Do you remember March 2020? I think I do, although sometimes when I think back to things I did in early March—including traveling across state lines and attending large events!—it feels like years ago, rather than just eight months or so.  Well, one thing I did in March was share an EEOC decision in which the Commission had some serious concerns about the agency’s ongoing and repeated failure to comply with the Commission’s orders.

In Alma F. v. Department of the Army, EEOC Pet. No. 2019004337 (Feb. 4, 2020), the Commission described how the agency had failed to provide evidence of compliance in 19 other cases, all with petitions for enforcement from 2019.  (You can read more here: You and What Army?)  As I noted in my article, the Commission doesn’t have an army to back it up when it orders agencies to take certain actions.  Unlike in cases in which agencies fail to comply with EEOC regulations about processing complaints or with orders from administrative judges, the Commission seems reluctant to issue sanctions, such as default judgment, when agencies fail to comply with orders on appeals.

So what can and does the Commission do?  Well, as it warned in Alma F., it can issue a show cause order to the head of an agency or certify the issue to the Office of Special Counsel.  (By the way, this warning doesn’t seem to have made much of an impact.  In a September 2020 decision, the Commission noted the same issue was ongoing in more than 20 cases.  See Calvin D. v. Dep’t of the Army, EEOC Pet. No. 2019004326 (Sept. 30, 2020).)  The Commission can also order an agency to pay interest on damages to address an agency’s failure to meet deadlines.

That is exactly what happened in Lyda F. v. Dep’t of Homeland Sec., EEOC App. No. 2020002790 (Sept. 16, 2020). In 2017, the Commission reversed the Agency’s FAD and remanded the complaint for correction and amendment to the accepted claims, and a supplemental investigation. The Commission ordered the agency to complete the supplemental investigation within 120 days and provide a copy of the ROI to the complainant no more than 30 days later.

If the complainant requested another FAD, the Commission ordered the agency to issue it within 60 days of the request.  The complainant requested a FAD on the supplemental ROI on July 11, 2018.  The agency did not issue the FAD—in which it found liability for both harassment and retaliation—until July 10, 2020, two years after the complainant requested it. The Commission found that interest on any compensatory damages award was the appropriate way to address the agency’s obvious failure to meet its deadline.  It did not label this as a sanction, but I think that is a fair way to look at it.

Depending on interest rates, the amount of the damages award, and the length of the delay, compounded interest could result in just a few hundred dollars increase in the money an agency must pay to a complainant.  But the longer the delay and the larger the award, the more likely the agency will be forced to pay thousands of dollars more because of a delay. The best-case scenario is of course to avoid violating Title VII or any of the other civil rights statutes, but if that has already occurred, make sure you don’t add to the problem by taking too long to address it. Droste@FELTG.com

Tips from the Other Side: Dismissing Failure to Accommodate Claim

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By Meghan Droste, November 17, 2020

For the past few months, we’ve been discussing reasonable accommodation issues in this space. Why? Well, they’re interesting.  Also, because I anticipate you will probably see more requests whenever your agency starts to move back to having employees work in the office rather than at home. (Of course, with the recent increases in cases across the country, that might not be for a few more months at least.)  If you do receive more accommodation requests, that may also lead to an increase in the number of EEO complaints alleging a failure to accommodate.

Agencies can, and frequently do, run into trouble when determining whether to accept or dismiss any type of EEO complaint. Reasonable accommodation issues present their own challenges, such as when an agency improperly dismisses a complaint for untimely EEO contact, forgetting to take into account that a failure to accommodate can be a continuing violation. (For more on that, check out my Tips from the Other Side from April 2018.)  But they can also be mishandled in ways that apply more broadly to other complaints. These mistakes are unfortunately common but can be voided easily.

For example, at the acceptance or dismissal stage, an agency should not consider the merits of the claim. Does it seem like the agency has an airtight defense? It doesn’t matter. The only question is whether, assuming all facts are true as alleged, the complaint could state a claim for relief. If it can, the agency should accept it.

What does this look like in the failure to accommodate context? It could be considering the agency’s reasons for not providing an accommodation. It could also be looking at the agency’s efforts to provide an alternative accommodation and finding them sufficient. For example, in West v. National Archives & Records Administration, EEOC App. No. 01A43235 (Sept. 13, 2004), the agency dismissed the complaint for failure to state a claim.  The agency’s reason for the dismissal was that the complainant did not suffer an actionable harm because the agency had attempted to place the complainant in a position that would accommodate her disability.  As a result, the agency found there was no harm that could be remedied. The Commission reversed, finding that the consideration of the agency’s response to the complainant’s request for accommodations went to the merits of the claim.

Agencies should only dismiss a complaint for failure to state a claim if there is no possibility that the complaint articulates a harm for which the EEOC could order a remedy. Although I’m sure it’s possible that a claim alleging a failure to accommodate could meet this standard, I think it will be unlikely in most circumstances. If you find yourself inclined to dismiss a failure to accommodate claim for this reason, I recommend you take a step back and make sure that you aren’t doing so simply because it appears that the agency did try to provide an accommodation or had a good reason for not doing so.  Droste@FELTG.com