David G. Decatur, Complainant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionFeb 18, 2000
01975646 (E.E.O.C. Feb. 18, 2000)

01975646

02-18-2000

David G. Decatur, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.


David G. Decatur v. Social Security Administration

01975646

February 18, 2000

David G. Decatur, )

Complainant, )

) Appeal No. 01975646

v. ) Agency No. SSA427-93

)

Kenneth S. Apfel, )

Commissioner, )

Social Security Administration, )

Agency. )

)

DECISION

Complainant filed a timely appeal from the agency's final decision

denying his equal employment opportunity (EEO) complaint of unlawful

employment discrimination. His complaint alleged discrimination on the

basis of physical disability (respiratory problems aggravated by 'sick

building syndrome'), in violation of the Rehabilitation Act of 1973,

as amended, 29 U.S.C. � 791, et seq.<1> Complainant alleged he was

discriminated against when he was refused reasonable accommodation for

his disability. The appeal is accepted in accordance with EEOC Order

No. 960.001. For the following reasons, the Commission AFFIRMS the

agency's final decision.

Background

The record reveals that during the relevant time, complainant was employed

as a Claims Representative GS-11 at the agency's Warfield Road, Richmond,

Virginia facility.

Believing he was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a formal complaint on March 22, 1993.

At the conclusion of the investigation, complainant received a copy

of the investigative report(s) and requested a hearing before an

EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a

recommended decision finding no discrimination.<2> She found that the

complainant failed to demonstrate that he was 'disabled' within the

meaning of 29 C.F.R. �1630.2(j)(1)(ii).<3> More specifically, the AJ

determined that the complainant had a physical impairment but he failed

to establish he was substantially limited in a major life activity such

that he was entitled to a reasonable accommodation. The AJ concluded that

the complainant was not significantly restricted in breathing, sleeping

and working when compared to the average person. She determined he had

virtually no limitations because he was still able to hike and exercise

and did not miss much time from work aside from doctor's appointments.

The AJ noted that the complainant's work performance had not been limited

and that he still received excellent performance appraisals during the

time in question.

She also concluded that even if the complainant were legally disabled,

the agency had made reasonable efforts towards an accommodation. The AJ

found that the agency arranged for regular carpet cleaning, inspected

the heating and air conditioning system and attempted to carry out

the complainant's request to keep the door to the computer room closed.

The agency also allowed the complainant to relocate his desk away from the

room with the offending fumes. Finally, the complainant was temporarily

relocated to another location which ultimately became his permanent

work station along with the rest of the office.

The agency's final decision adopted the AJ's recommended decision.

On appeal, complainant contends that the AJ erred in her determination

that the complainant was not substantially limited in his ability to sleep

and work. He contends that it was clearly indicated he was limited in his

ability to work because he took 41 days of leave related to his condition.

He also contends he was regarded as disabled by the agency because he was

granted liberal sick leave when he was ill from the building air quality.

The complainant argued that because he was disabled within the meaning

of the law, the agency's efforts to accommodate him were inadequate.

He argued that the agency fell short by failing to test his work area

for mold, failing to adjust the fresh air intake in the office, and

failing to relocate him far enough away from the source of the odors.

The complainant also contested the agency's initial refusal to transfer

him without medical documentation.

Analysis and Findings

Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at

29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an

administrative judge will be upheld if supported by substantial evidence

in the record. Substantial evidence is defined as "such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion."

Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,

477 (1951) (citation omitted).

After a careful review of the record, the Commission finds that the

AJ's decision was based on a sound interpretation of the relevant facts,

appropriate regulations, policies, and laws. She noted in her findings of

fact that the complainant suffered from watery eyes, headaches, fatigue,

dizziness, forgetfulness and chest pains as a result of his reaction

to the air quality in his office. She concluded as a matter of law,

however, that these symptoms did not rise to the level of a substantial

limitation on a major life activity. The AJ based her conclusion on the

fact that the complainant appeared able to engage in physical activity as

he had prior to his reaction and that his work performance did not suffer.

She also noted the complainant was not required to take sick leave except

for doctor's appointments.

In addition, we note from our review of the record, that the complainant's

physician considered the complainant's condition to be "mild", and he was

not able to conclude that the complainant's condition adversely affected

his ability to exercise. Moreover, the complainant did not seek medical

treatment until several months after the onset of his symptoms when the

agency requested medical documentation of his condition. This fact

greatly detracted from his claim that he was substantially limited in

his ability to work, breathe. etc.

We have found that persons with allergies who are affected by

'sick building syndrome' are disabled within the meaning of the law.

See Fulgham v. Department of the Navy, EEOC No. 01883383, February 24,

1989)(Acute infectious sinusitis, allergic rhinitis is a substantial

limitation on breathing and working); but see, Veazie v. U.S. Postal

Service, EEOC No. 01971183 (June 2, 1999)(Sinusitis, bronchitis and

allergies to mold, dust not substantial limitation on a major life

activity). The decision whether an individual is substantially limited

in a major life activity is necessarily a case-by-case determination.

EEOC Compliance Manual,Vol.2, EEOC Order 915.002, Section 902, "Definition

of the Term Disability"(March 14, 1995). Based on the record before us,

we cannot conclude that the AJ erred in her conclusions regarding the

complainant's particular condition.

Because we affirm the AJ's determination that the complainant was not

substantially limited in a major life activity, we also affirm the

determination that the complainant is not disabled within the meaning

of the law. Consequently, we need not review in depth her analysis of

the accommodations provided to the complainant.

Conclusion

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we affirm the agency's

final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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 (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:

2/18/00

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

___________________________

Date Equal Employment Assistant

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to

all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply the

revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,

in deciding the present appeal. The regulations, as amended, may also be

found at the Commission's website at WWW.EEOC.GOV.

2Because the Administrative Judge's decision was issued prior to the new

regulations, her decision will be referred to as a recommended decision.

3The Rehabilitation Act was amended in 1992 to apply the standards in the

Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found on EEOC's

website: WWW.EEOC.GOV.