Clare M. Slawter, Complainant,v.Pete Geren, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJan 6, 2009
0120065230 (E.E.O.C. Jan. 6, 2009)

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

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0120065230