0120065230
01-06-2009
Clare M. Slawter, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Clare M. Slawter,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120065230
Agency No. ARKNOX05JAN0683
DECISION
On September 15, 2006, complainant filed an appeal from the agency's
August 10, 2006 final decision concerning her equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
ISSUES PRESENTED
Whether the agency's decision finding no discrimination is correct.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as an Automation Clerk, at the agency's Fort Knox, Kentucky facility.
Complainant suffers from allergies and hives when she comes into contact
with allergens, such as mold. After a request from complainant, mold
was removed from her worksite, and the ducts were cleaned. However,
the problems continued, and complainant desired to work a compressed
schedule so that she would suffer less of the effects from her medication,
which she only required while at work. Her request was denied.
On April 11, 2005, complainant filed an EEO complaint alleging that
she was discriminated against on the basis of disability (urticaria
hives) when, on or about January 28, 2005, she was denied reasonable
accommodation for her physical disability when her request to work an
alternative work schedule was denied.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b). The decision concluded that complainant failed to prove
that she was subjected to discrimination as alleged.
Specifically, the agency found complainant was not an individual with
a disability because she testified that her allergies and hives did not
substantially limit a major life activity, and she was only bothered by
the allergies at work. Furthermore, the agency found that complainant's
request was denied because complainant's physician did not indicate
that working a compressed work schedule would be beneficial. Indeed,
he indicated that complainant's job was bad for her health whether "she
work[ed] 4 or 5 days." (ROI at p. 52). Furthermore, testimony revealed
that the facility could not afford to have complainant work a four day
week because she was its sole administrative support.
CONTENTIONS ON APPEAL
On appeal, complainant argues that she is an individual with a disability,
and the agency failed to show it would be an undue hardship to allow her
to work four day workweeks, with ten hour days. In response, the agency
maintains it has cleaned the mold, installed new filters, reassigned
complainant on three occasions, provided her with leave without pay,
as well as paid sick leave as accommodations. It contends it need not
also provide her with a compressed work schedule.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of
the previous decision maker," and that EEOC "review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and . . . issue its decision based on the
Commission's own assessment of the record and its interpretation of
the law").
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
a qualified individual with a disability unless the agency can show that
accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o)
and (p). A reasonable accommodation may consist of modifications or
adjustments to the work environment, or to the manner or circumstances
under which the position held is customarily performed that enables a
qualified individual with a disability to perform the essential functions
of that position. 29 C.F.R. � 1630.2(o)(ii).
Assuming arguendo that complainant established she is a qualified
individual with a disability, the Commission finds that complainant has
not demonstrated that the agency did not provide her with a reasonable
accommodation. Complainant was provided with leave, and ultimately
she was reassigned to another position where she did not experience any
problems. (HT at p. 150). Here, the record also reveals complainant
did not require an alternate work schedule in order to perform the
duties of her position. While it is clear that complainant did not
receive the accommodation of her choice, it is ultimately within the
agency's discretion to choose between effective accommodations. See Polen
v. Department of Defense, EEOC Appeal No. 01970984 (January 16, 2001).
Accordingly, we conclude that the agency did not deny complainant a
reasonable accommodation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from 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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
January 6, 2009
Date
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0120065230
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120065230