03A40105
08-10-2004
Cinderella A. Madison, Petitioner, v. Donald H. Rumsfeld, Secretary, Department of Defense, Agency.
Cinderella A. Madison v. Department of Defense
03A40105
August 10, 2004
.
Cinderella A. Madison,
Petitioner,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Agency.
Petition No. 03A40105
MSPB No. DA-0752-02-0095-I-2
DECISION
On August 4, 2004, petitioner filed a timely petition with the Equal
Employment Opportunity Commission asking for review of a Final Order
issued by the Merit Systems Protection Board (MSPB) concerning her claim
of discrimination in violation of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Petitioner, a Senior Instructor, GS-11, at the agency's Defense Language
Institute English Language Center, Lackland Air Force Base, Texas,
alleged that she was discriminated against on the basis of disability
(endolymphatic hydrops<1>) when she was removed from employment effective
October 5, 2001 for medical inability to perform the essential functions
of her position.
Petitioner timely re-filed a mixed case appeal with the MSPB following
a dismissal without prejudice. After a hearing, the MSPB Administrative
Judge (AJ) reversed the removal action, finding that the agency had not
established a high probability of hazard that petitioner's condition
would result in injury to her if petitioner were to continue working in
her position. The MSPB AJ further found, however, that petitioner had
not established the affirmative defense of disability discrimination.
More specifically, the MSPB AJ found that petitioner had not established
that she was an �individual with a disability.� The Board denied
petitioner's petition for review.
EEOC regulations provide that the Commission has jurisdiction over
mixed case appeals on which the MSPB has issued a decision that makes
determinations on allegations of discrimination. 29 C.F.R. � 1614.303
et seq. The Commission must determine whether the decision of the
MSPB with respect to the allegation of discrimination constitutes a
correct interpretation of any applicable law, rule, regulation or policy
directive, and is supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
Assuming for the sake of argument that petitioner has established
coverage under the Rehabilitation Act, her claim of discrimination
based on disability still fails. The record reflects that petitioner
provided the agency with two letters from her physician, the second of
which stated, in relevant part:
[I]t is absolutely imperative that this lady be placed in a work
place environment in which she is not exposed to changing chemicals.
An example would be if she is in an office and they come in to paint
this office or around the area, she is probably going to get sick.
Petitioner nonetheless maintained that she could tolerate brief exposures
to such chemicals.
The record contains a questionnaire from the agency for petitioner's
physician requesting specific information regarding, among other matters,
proximity and concentration issues relative to fumes and odors. More
specifically, the agency advised that most of its facilities shared common
heating, ventilation, and air conditioning (HVAC) systems, and requested
to know what impact traveling fumes might have on petitioner's condition;
in other words, whether and to what extent petitioner's condition
would be affected by fumes traveling through a building's HVAC system.
Despite two requests, however, petitioner declined to provide the agency
with any information beyond the original two letters from her physician.
Under the Rehabilitation Act, the agency was permitted to request
additional medical information necessary to determine what accommodation
was required. EEOC Enforcement Guidance on Reasonable Accommodation
and Undue Hardship, at Q. 6. By failing to provide the reasonable
documentation that the agency requested, petitioner was responsible
for the breakdown in the interactive process; therefore, the agency
cannot be held liable for denial of reasonable accommodation. See Lavery
v. Department of Veterans Affairs, EEOC Appeal No. 01A14788 (February 26,
2003); Jiminez v. Department of the Navy, EEOC Petition No. 03A20052 (June
25, 2002); Sacco v. Department of Justice, EEOC Petition No. 03A10104 (May
16, 2002); Ross v. Department of the Treasury, EEOC Appeal No. 01982708
(August 2, 2001).
The agency was entitled to rely upon the statement of petitioner's
personal physician that she should be placed in a work environment
where she would not be exposed to chemicals. See Billy J. Nale
v. v. Department of the Army, EEOC Petition No. 03970162 (December 29,
1997); see also Thomas H. Hebda v. Department of the Interior, EEOC
Appeal No. 01986569 (July 13, 2001), req. to reopen den., EEOC Request
No. 05A20084 (October 3, 2002) (agency may rely on medical reports by
petitioner's/complainant's personal physician). Petitioner twice was
afforded the opportunity to submit additional information to address the
agency's questions regarding the level of exposure that might, in fact,
be acceptable. When she refused to do so, the agency determined, based
on the information then in its possession, that petitioner's medical
restrictions could not be accommodated.
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to CONCUR with the final decision
of the MSPB finding no discrimination. The Commission finds that the
MSPB's decision constitutes a correct interpretation of the laws, rules,
regulations, and policies governing this matter and is supported by the
evidence in the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of the date that you receive this decision.
If you file a civil action, you must name as the defendant in the
complaint the person who is the official agency head or department head,
identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
�Agency� or �department� means the national organization, and not the
local office, facility or department in which you work.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to
file a civil action. Both the request and the civil action must be
filed within the time limits as stated in the paragraph above (�Right
to File a Civil Action�).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 10, 2004
__________________
Date
1�Endolymphatic hydrops� is defined in the record as an inner ear
condition in which fluctuating blood vessel control at the base of the
brain results in tinnitus and, at times, vertigo, dizziness, fluctuating
hearing loss, and pressure in the ears. The symptoms are triggered
by exposure to out-gassing of chemicals such as latex paint, flooring
adhesives, cleaning supplies, and certain office supplies.