01970727
09-18-2000
Ella Roberts, Complainant, v. Rodney E. Slater, Secretary, U.S. Department of Transportation (Federal Aviation Administration), Agency.
Ella Roberts, )
Complainant, )
) Appeal No. 01970727
v. ) Agency No. 4-96-062
)
Rodney E. Slater, )
Secretary, )
U.S. Department of Transportation )
(Federal Aviation Administration), )
Agency. ) ____________________________________)
DECISION
INTRODUCTION
Complainant timely appealed the agency's final decision that it had
not discriminated against her in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq., and Section
501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405).
ISSUES PRESENTED
Whether complainant has proven, by a preponderance of the evidence,
that she was discriminated against:
on the bases of race (African-American), sex (female) and reprisal
(prior EEO activity) when on September 17, 1995, she was removed from
her alternate work schedule (AWS) while a similarly situated White male
was allowed to work on an AWS;
on the bases of her physical (Multiple Chemical Sensitivity) and mental
(depression and stress) disability and/or in retaliation for prior EEO
activity when her requests for reasonable accommodation were denied,
and when she was subjected to a hostile work environment by being forced
to continue working with an allegedly difficult employee.
BACKGROUND
On January 5, 1996, complainant, the Assistant Manager of Programs,
Great Lakes Region, filed a formal EEO complaint alleging that the agency
discriminated against her as referenced above. The agency accepted and
investigated the complaint. At the conclusion of the investigation,
complainant requested an immediate final agency decision (FAD).
On September 27, 1996, the agency issued a FAD finding no discrimination.
It is from this decision that complainant now appeals.
The record reveals that complainant has worked in her present
position as Assistant Manager of Programs (AMP) since March 9, 1991.
She previously worked as an Area Supervisor (AS) from 1989 until 1991.
Complainant alleged in her complaint and affidavit that she suffers from a
condition called Multiple Chemical Sensitivity (MCS) which was triggered
in 1983 when she was exposed to paint fumes in the work environment.
Complainant averred that when she is exposed to fragrances such as
perfumes, she becomes ill by contracting respiratory infections, which
require her to go on sick leave and take prescription medications.
Furthermore, her illness manifests itself by causing her to tear,
lose her voice, gag, and suffer from headaches. She claims that
her condition has worsened over the years, and that she must work in
a fragrance free environment. Other evidence in the record includes
medical documentation from physicians describing the effects of her MCS.
One physician remarked that over the 1996 year, complainant was seen in
his office for problems associated with MCS eighteen times.
Complainant's allegations center around the agency's failure to
accommodate her need for a fragrance free environment. Complainant
averred that her prior supervisor refrained from wearing fragrances in her
presence, and also advised her when chemicals would be on site in advance.
However, complainant alleges that the current Air Traffic Manager
(ATM) (African-American female, no disability, no prior EEO activity),
although aware of her condition, refused to stop wearing fragrances in
her presence, and has failed to accommodate her disability.
Complainant claims she alerted the ATM to her MCS in April 1994,
and requested that employees refrain from wearing fragrances in her
presence. In June 1994, complainant presented the ATM with a note from
her physician which stated that she suffered from severe allergies
and that she should avoid fragrances. Complainant concedes that the
ATM issued a memorandum in August 1995, requesting employees to refrain
from wearing perfume in complainant's presence, although the ATM herself
continued to wear perfume, which, according to complainant, contributed
to a hostile work environment. Following a November 1994 request for
an air filter, she received such from the Assistant Air Traffic Manager
(AATM)(African-American male, no disability, no prior EEO activity),
which he brought in from his home, without the benefit of its supplies.
Documentary and testimonial evidence in the record reveals that beginning
in September 1994, an acrimonious relationship existed between complainant
and a Training Specialist (TS), who was
complainant's subordinate.<1> Complainant testified that this
relationship contributed to her stress and depression.
In April 1995, the ATM implemented a revitalization plan which involved
rotating Area Supervisors (AS) into complainant's position, as well as
rotating complainant into AS positions for 120-day details. According to
the ATM, the purpose of this plan was to �support continued development of
and proficiency of supervisors and staff specialists.�<2> ROI at ex. 5.
After complainant was notified of her impending detail to an AS position,
complainant became concerned about whether her MCS would be accommodated.
Therefore, she spoke with the AATM, who requested medical documentation.
Complainant testified that she presented him with documentation on May 10,
1995, which said that complainant suffered from acute sinusitis brought
on by an allergy to fragrances.
On May 14, 1995, complainant was detailed to an AS position pursuant to
the revitalization plan. Between May 28, 1995 and July 1995, another
individual was detailed into complainant's position as AMP. On May
17, 1995, due to the stress she experienced at the time surrounding
the supervision of the TS, and soon after she was notified about her
impending detail, complainant was diagnosed as suffering from depression.
In August 1995, complainant's psychologist wrote that complainant suffers
from an adjustment disorder with depressed features, and complained of
excessive crying, trouble sleeping, and has little energy or motivation.
He prescribed her with anti-depressant medication. Soon after her
diagnosis, complainant notified the ATM of the diagnosis and prescription
medication she was taking.
The record reveals that throughout the summer months, complainant spent
the majority of time on sick leave until approximately September 1995,
instead of on the detail. She testified that she became stressed and
depressed at the thought of the detail assignment. Complainant also
stated she was embarrassed due to the manner in which the agency told
her about the detail, that being, in front of her co-workers, without
advance notice. Complainant testified that she believed the detail was a
demotion, in light of her prior experience working as an Area Supervisor.
In addition, complainant believed management was targeting her and failing
to address her concerns with respect to the TS, and her disabilities.
Also during this time, complainant alleged that the ATM decided to
move complainant into the same office as the TS, and required that
complainant maintain a medical clearance for operational currency.<3>
As a result of the above, in June 1995, complainant filed a grievance
over her reassignment. Also, complainant testified on behalf of another
individual, who also suffered from MCS, and had filed an EEO complaint.
Complainant returned to work in September 1995. Upon her return,
complainant learned she was removed from the Alternate Work Schedule
(AWS). At that time, complainant's psychiatrist noted that although
complainant has improved somewhat, her return to work in September 1995
�produced a full recrudescence of [complainant's] symptoms.� ROI at
ex. 5.
In August 1995, management required that all employees discontinue
working the Alternate Work Schedule (AWS). Although complainant was
removed from her AWS when she returned from sick leave in September 1995,
she maintained that the Assistant Manager for Automation (Caucasian
male, no disability, no prior EEO activity) was permitted to continue
working the AWS, as was another AS (African-American male, no prior EEO,
no disability). Complainant averred that she was capable of completing
her work while on the AWS, but that she was removed from the AWS by the
ATM and AATM who claimed that there was a need to restore continuity.
On October 2, 1995, complainant wrote the ATM and AATM about her MCS,
and also submitted medical documentation from her physician, which
stated that she suffered from significant nasal allergies which caused
extreme sensitivity to environmental odors such as perfume and tobacco.
Furthermore, complainant's physician recommended that complainant have
a high quality air cleaner in her office in order for her to tolerate
particles in the air. In her letter, complainant referenced her previous
requests for an air purifier and fragrance free environment, and noted
that her disability had not been accommodated.
On November 7, 1995, complainant received a memorandum from the ATM,
in which she proposed that complainant be permanently reassigned
or terminated from her position as AMP. The memo also acknowledged
complainant's June 1995 grievance, as well as the fact that she had
been out on sick leave and that she was taking prescription medication.
In her complaint, complainant alleged that at this time, the ATM told her
the action was being taken because �she was �not loyal to management.�
Complaint at p. 3. No actions pursuant to the memorandum were ultimately
taken.
On November 20, 1995, the AATM responded to complainant's request for an
accommodation by requesting that she submit detailed medical information,
which included a diagnosis, prognosis, list of medications, explanation
of the impact of medical condition on complainant's health, as well as
information which may indicate whether complainant may be expected to
suffer any incapacitation from the impairment. On December 15, 1995,
complainant requested a 45-day extension for the medical documentation
requested by the agency. Her request was later granted. Thereafter,
on March 6, 1996, the agency notified complainant that as they had
not received the documentation, there would be no further decision
rendered on the issue of complainant's request for an accommodation.
This complaint followed.
Final Agency Decision
In its final decision, the agency found that complainant failed
to establish that she was an individual with a disability with
respect to either her MCS or depression, in that she failed to show
how either impairment substantially limited a major life activity.
Assuming that complainant was a qualified person with a disability,
the agency found that complainant failed to show that her conditions
could be accommodated. Although management was aware of complainant's
requests for a fragrance free environment, air purifier, and relief
from supervising the TS in order to alleviate her depression, the
agency found that complainant failed to respond to the November 20,
1995 request for medical documentation. According to the agency,
such information was necessary in order to make a determination as to
the extent of complainant's chemical sensitivity condition and need for
an accommodation. The agency also found that complainant failed to show
that it denied her an accommodation in reprisal for filing the June 1995
grievance.
As for her other bases, the agency found that complainant failed to
establish that she was discriminated against as alleged. Assuming that
complainant had established a prima facie case of discrimination on the
bases of race, sex and reprisal when her AWS was removed upon her return
from sick leave in September 1995, the agency found it had articulated
legitimate, nondiscriminatory reasons for its actions which complainant
failed to prove were pretext for discrimination. Specifically, management
officials testified that complainant was removed from her AWS in order
for her to maintain continuity within the departments which her position
oversaw. Although others were permitted to stay on their AWS, the agency
maintained that the comparatives were able to accomplish their unit's
mission and ensure watch coverage, whereas complainant was not.
With respect to complainant's claim of a hostile environment based on
disability and reprisal, complainant alleged that the following incidents
constituted a hostile working environment: (a) supervision of the
allegedly difficult employee, the TS; (b) detail to the AS position; (c)
the handling of her June 1995 grievance; (d) a plan to move complainant
from her office to an office shared by the TS; (e) the removal of her AWS
in September 1995; (f) the imposition of a requirement for her position
to maintain a medical clearance for operational currency at which time
complainant was taking a disqualifying medication for stress; and (g)
the November 1995 memorandum detailing the plan to permanently reassign
her, or to terminate her.
In its decision, the agency found that complainant failed to establish
a prima facie case of a hostile work environment, in that she failed
to show that most of the incidents alleged, with the exception of one,
were as a result of her disability. However, the agency did find that
complainant's allegation relating to her proposed permanent reassignment
or termination in November 1995 was in fact related to her disability, in
that the November 1995 memorandum specifically referenced complainant's
illness, sick leave, and disqualifying medication as related to the
proposed actions. The agency also found that complainant had established
a prima facie case with respect to her claim of a hostile environment
based on reprisal. Specifically, the agency found that the agency knew
complainant had engaged in prior EEO activities; indeed, the agency
acknowledged there was no dispute as to the fact that complainant
had requested reasonable accommodations in May 1994, August 1994,
and October 1995, as well as when she filed a grievance in June 1995.
Furthermore, the agency found that the totality of the actions alleged
by complainant as creating a hostile work environment were sufficiently
severe or pervasive enough to alter the conditions of her employment.
The agency then analyzed whether it had articulated legitimate,
nondiscriminatory reasons for the incidents complainant alleged
constituted a hostile work environment. Specifically, the ATM testified
that complainant was detailed to the AS position in May 1995 according to
a facility revitalization plan wherein Area Supervisors would rotate on
120-day details into complainant's position which would �facilitate closer
supervision from the AATM and provide an opportunity for [complainant]
to gain and enhance skills and abilities necessary to effectively function
in a challenging supervisory capacity.� ROI at ex. 5. However, the ATM
testified that the plan never materialized. Furthermore, complainant did
not serve her detail as an AS because she went out on sick leave due to
a stress related illness from May until September 1995. With respect
to the removal of complainant's AWS, the ATM and the AATM testified that
complainant's AWS was removed because of a need to restore �continuity�
of the two departments supervised by complainant. As the AATM and the ATM
testified, the imposition of the medical clearance requirement was imposed
as a result of the facility's revitalization plan. Finally, the agency
explained that the plan to move complainant into the office with the TS,
as well as the plan to reassign permanently or terminate complainant
pursuant to the November 1995 memo, did not ultimately occur.
The agency found that complainant had failed to prove, by a preponderance
of the evidence, that the agency's reasons for these actions were
pretext for discrimination. It is from this decision that complainant
now appeals.
CONTENTIONS ON APPEAL
On appeal, complainant contends that her MCS is a disability and that
the agency failed to accommodate her. Furthermore, complainant contends
that the ATM created a hostile work environment by refusing to stop
wearing perfume, and in fact kept a bottle of perfume on her desk as a
symbol of her refusal. Complainant also argued that the agency failed
to show that the removal of the TS from complainant's supervision or a
fragrance free environment would cause an undue hardship. In response to
complainant's appeal, the agency argues that complainant failed to appeal
the remaining issues in her complaint, and that complainant's appeal
only deals with her alleged disabilities. The agency also maintains
that complainant is not an individual with a disability and that she
failed to submit appropriate documentation when requested. Furthermore,
despite its conclusion to the contrary in its FAD, the agency now argues
that complainant's allegations regarding the hostile work environment
were not severe or pervasive enough to alter the conditions of her work
environment.
On December 6, 1996, the Commission received further information
from complainant entitled, �Complainant's Brief in Opposition to the
Agency's Motion to Dismiss.� Therein, complainant argued that she had
presented sufficient information of her MCS, as well as her requests for
accommodations. Furthermore, complainant submits medical documentation
from her physicians detailing the effects of MCS. Complainant also
submits further documentation from her Department of Labor Notice of
Traumatic Injury and Claim for Continuation of Pay. These documents
were not contained in the investigatory record and are dated from March
1996 through February 1997. In response, the agency argues that the
regulations do not provide for a reply brief, and even if they did,
such documents are too late, and should therefore not be considered by
the Commission.
ANALYSIS AND FINDINGS
Discrimination Based on Disability
As a threshold matter, complainant bears the burden to establish that she
is a "qualified individual with a disability" within the meaning of the
Rehabilitation Act.<4> An "individual with a disability" is one who:
(1) has a physical or mental impairment that substantially limits one
or more major life activities; (2) has a record of such impairment; or
(3) is regarded as having such an impairment. 29 C.F.R. � 1630.2(g).
Major life activities include, but are not limited to, caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. 29 C.F.R. � 1630.2(i). A "qualified" individual
with a disability is one who satisfies the requirements for the employment
position he/she holds or desires and can perform the essential functions
of that position with or without reasonable accommodation. 29 C.F.R. �
1630.2(m).
(A) Multiple Chemical Sensitivity
Based on the entire record before us, we find that complainant is
an individual with a disability, MCS, in that she has an impairment
which substantially limits a major life activity, breathing. Here, the
cumulative medical evidence reveals that complainant is substantially
limited in her overall health and ability to breath when she comes into
contact with fragrances and other chemical fumes. For complainant, fumes
which would not significantly affect an average person in society are a
substantial problem. Specifically, complainant suffers from wheezing,
reoccurrence of sinusitis and bronchitis, coughing, tearing, sneezing,
and chest congestion when she comes into contact with fragrances, jet
and paint fumes. The effects of her disability has required dozens
of appointments with her physician. Witnesses testified that when
complainant came into contact with fragrances or paint fumes she had
trouble breathing, coughed, and suffered problems with her voice.
Furthermore, complainant's physician reports that recovery from
the effects of fumes for complainant may take weeks to complete.
See e.g. Carl v. Department of Defense, EEOC Appeal No. 01985333 (March
19, 1999) (severe allergic anaphylactic reactions due to a variety of
chemicals substantially limited major life activity of working); Scalese
v. Department of the Air Force, EEOC Petition No. 03960050 (July 10, 1996)
(individual with MCS substantially limited in major life activity of
working, but not a qualified person with a disability in that he could
not show that he could perform the essential functions of the job with
or without an accommodation).
Complainant must also show that she is a qualified person with a
disability. A qualified individual with a disability is one who, with
or without reasonable accommodation, can perform the essential functions
of the position in question and meets the experience and/or educational
requirements for the position. 29 C.F.R. �1630.2(m). Here, there is
no dispute that complainant is qualified in that the ATM testified that
complainant is an exceptional employee. Furthermore there is no dispute
that management officials knew of complainant's impairment when it took
the alleged actions against her.
Depression
With respect to complainant's claim of disability discrimination based on
depression, we agree with the agency that complainant has failed to show
that her depression substantially limits a major life activity. Here,
the medical evidence reveals that complainant suffered from depression
during the summer of 1995, and was out on sick leave as a result.
During that time, complainant testified that she suffered from insomnia
and stress. Her medical records indicate that during this time she cried
a lot, suffered from headaches, and had little energy or motivation.
According to the record, complainant has been back at work, and there
is no evidence indicating that her depression is long term or that it
has reoccurred for a substantial period of time. As such, we do not
find that her depression rose to the level of a disability.
After a review of the record, we also find complainant failed to present
sufficient evidence that, because of her depression, the agency regarded
her as a individual with a disability. In addition, complainant failed
to show she has a record of a disability because of her depression.
Failure to Accommodate
An agency is required to make reasonable accommodations to the known
physical and mental limitations of qualified individuals with disabilities
unless it can demonstrate that doing so would impose an undue hardship
upon its operations. 29 C.F.R. �1630.9(a). Reasonable accommodation
may include job restructuring, reassignment to a vacant position, or
modified work schedules. 29 C.F.R. �1630.2(o). Factors to consider in
determining whether any of these accommodations would impose an undue
hardship include the size and budget of the program, the type of operation
and the nature and cost of the accommodation. 29 C.F.R. �1630.2(p).
As early as May 1994, complainant requested to work in an environment
free from fragrances due to her MCS. Although many employees stopped
wearing fragrance in response to an August 1995 memorandum by the
ATM which requested employees refrain from wearing fragrant products,
the ATM continued to wear fragrances when in contact with complainant.
According to complainant, this activity, as well as the ATM's practice
of keeping a bottle of perfume on her desk as a symbol of her refusal,
contributed to a hostile work environment.
After a review of the record, we find complainant's request for
an entirely fragrant free environment was not a reasonable request
for accommodation, and would have imposed an undue hardship on the
agency's operation. Complainant, whose office is located at Cleveland
Hopkins International Airport, requested that she be provided with an
environment free from fragrances, including perfume. However, she
failed to explain how her employer could provide her with an office
environment free from all fumes, including jet fuel, exhaust, cleaning
supplies, other perfumed personal products, as well as all other fumes
associated with an office comprised of at least a dozen individuals.
Enforcing such an accommodation would be impractical, especially when
considering the employer's obligation to limit and rid a large number
of scent producing agents one finds in the workplace.
Our analysis does not end there, though. The Interpretive Guidance
on Title I of the Americans with Disabilities Act (1991) (Guidance),
29 C.F.R. Part 1630, addresses the process for providing a reasonable
accommodation. It notes that once an individual makes a request for
an accommodation, "the appropriate reasonable accommodation is best
determined through a flexible, interactive process that involves both
the employer and the qualified individual with a disability." Guidance,
29 C.F.R. �1630.9. In other words, once an accommodation is properly
requested, the responsibility for fashioning a reasonable accommodation
is shared between the employer and employee. Id. The record reveals
that in addition to her request for a fragrance-free environment,
complainant requested an air purifier in November 1994 and October 1995.
Although complainant admits that the AATM provided his own personal air
purifier, complainant maintained that this did not perform as well as
could be expected, and that she is not provided the necessary supplies
for the air filter.
The facts of this case illustrate a complete breakdown of the interactive
process necessary in formulating a reasonable accommodation. Here,
the agency itself admits that complainant requested an accommodation to
her MCS as early as May 1994, yet it failed to engage in any discussions
whatsoever as to how to accommodate her disability. For example, the
ATM averred in her affidavit that �[she] was aware that [complainant]
was sensitive to [fragrances] and wanted accommodations made. It wasn't
a direct request for me to stop wearing perfume. It was a request for
how to accommodate her condition.� ROI at ex. 8.
If there were any question as to whether complainant required a
particular accommodation, the agency should have solicited additional
medical information from her much earlier than it actually did. See,
e.g., Randel v. Dept. of the Navy, EEOC Petition No. 03960061 (August
8, 1996) (agency on notice of disability required to solicit necessary
additional information from employee). Instead, the agency ignored
its obligation until complainant submitted a �formal� request for an
accommodation. At that time, agency officials maintained that they
did not have medical documentation, despite the fact that she submitted
documentation in June 1994, and despite testimony that they were �acutely
aware� of her health problem and desire for a fragrance free environment.
See ROI at ex. 9, p. 2. In that regard, we remind the agency that when
requesting an accommodation, an individual may use �plain English� and
need not mention the ADA or use the phrase �reasonable accommodation.�
See Enforcement Guidance: Reasonable Accommodation & Undue Hardship,
EEOC Notice No. 915.002 at p. 8 (March 1, 1999).
In light of these facts, we find that the agency failed to properly
investigate whether an accommodation could be made. If it was determined
that the requested accommodation, a fragrance free environment was
impossible, it was incumbent on the agency to engage in an interactive
process to determine, what, if any accommodations could be provided
so that complainant could perform the essential functions of her job.
Specifically, the record is devoid of any evidence as to whether the
agency investigated whether complainant could have worked at home, been
given the appropriate air filter, or could have had an office where
contact with others could have been kept at a minimum.
Although we find that complainant's request for an entirely fragrance
free work environment would pose an undue hardship on the agency,
the agency's responsibility did not end there, as discussed above.
We further find the agency's argument that complainant failed to provide
medical documentation in late 1995 to be disingenuous given the weight of
evidence which reveals that the agency was well aware of complainant's
illness and need for an air filter. As such, we find that the agency
discriminated against complainant when it denied her a reasonable
accommodation of an appropriate air filter.
Hostile Work Environment Based on Reprisal
It is well-settled that harassment based on an individual's prior
EEO activity is actionable. See Ray v. Henderson, 217 F.3d 1234 (9th
Cir. 2000); Richardson v. New York State Dep't. of Correctional Serv.,
180 F.3d 426, 446 (2nd Cir.1999) ("co-worker harassment, if sufficiently
severe, may constitute adverse employment action so as to satisfy the
second prong of the retaliation prima facie case"); Drake v. Minnesota
Mining & Mfg. Co., 134 F.3d 878, 886 (7th Cir.1998) ("retaliation can
take the form of a hostile work environment"); Gunnell v. Utah Valley
State College, 152 F.3d 1253, 1264 (10th Cir.1998) ("co-worker hostility
or retaliatory harassment, if sufficiently severe, may constitute 'adverse
employment action' for purposes of a retaliation claim"). In order to
establish a claim of harassment under those bases, the complainant must
show that: (1) she belongs to the statutorily protected classes and/or
engaged in prior EEO activity; (2) she was subjected to unwelcome conduct
related to her membership in that class and her prior EEO activity;
(3) the harassment complained of was based on her disability and/or
her prior EEO activity; (4) the harassment had the purpose or effect of
unreasonably interfering with her work performance and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is
a basis for imputing liability to the employer. See Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should
be evaluated from the objective viewpoint of a reasonable person in
the victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
Complainant alleged that she was subjected to a retaliatory hostile work
environment because she assisted a co-worker with her EEO complaint and
because she filed a grievance in June 1995. After a review of the record,
however, we find complainant failed to present sufficient evidence
that established agency officials were aware that complainant assisted
another employee with her EEO complaint. We also find complainant failed
to establish she was subjected to retaliatory harassment based on her
June 1995 grievance. In that regard, we note complainant's grievance
dealt with her reassignment to the AS position, and was not based on
discrimination.
Despite this, we do find that complainant established that she was
subjected to a hostile work environment based on protected activity.
A request for reasonable accommodation of a disability constitutes
protected activity under Section 503 of the Americans With Disabilities
Act. EEOC Guidance on Investigating, Analyzing Retaliation Claims,
EEOC Compliance Manual Notice No. 915.003 (May 20, 1998). After a
careful review of the record, we find that the ATM and AATM perpetuated
an antagonistic position towards complainant in light of her repeated
requests for reasonable accommodation. As discussed above, complainant's
multiple accommodation requests were not responded to appropriately.
Finally, we note that the ATM did not dispute complainant's contention
that contemporaneous with the November 1995 threat of reassignment
or termination, the ATM told complainant that she was �not loyal to
management.�
We also find, as did the agency, that certain incidents alleged by
complainant constituted harassment, and were severe or pervasive enough to
alter the conditions of her employment. Specifically, we find that the
agency's repeated failure to accommodate complainant's MCS, as well the
removal of her alternate work schedule following her extended absence,
coupled by the threat of permanent reassignment or termination were
sufficiently severe to alter the terms and conditions of complainant's
work conditions. As such, we find complainant established that she was
subjected to harassment based upon protected activity.
Removal of Alternate Work Schedule Based on Race, Sex or Reprisal
After a careful review of the entire record, and after applying
the three-tiered analytical framework outlined in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973); and Texas Dept. of Community Affairs
v. Burdine, 450 U.S. 248 (1981), we find that the agency properly found
that complainant was not discriminated against on the bases of race or
sex when her alternate work schedule was taken away. Complainant failed
to show that her AWS was removed based on a discriminatory motive based
on her race or sex.
However, we do find the record supports complainant's contention that her
alternative work schedule was removed due to her requests for reasonable
accommodation. Complainant, who had repeatedly requested that management
accommodate her disability, was removed from her AWS upon her return from
sick leave. Although the agency contends that all employees were removed
from the AWS, the overwhelming evidence in the record does not support
their position. Rather, the record reveals that the Assistant Manager for
Automation, as well as Area Supervisors and Administrative staff retained
their AWS. In fact, the AATM reported to the agency's investigator that,
�the only person we felt was necessary at that time to mandate schedule
changes was [complainant].� ROI at ex. 10. Although the agency argues
that complainant's AWS was removed to restore �continuity,� they failed to
produce a scintilla of evidence that supported their conclusion. Rather,
both the ATM and AATM averred that complainant was an exceptional employee
who scored 2.85 out of a possible 3 points on her performance appraisal.
The agency failed to show that complainant's department suffered from
any continuity problems. As such, we find complainant proved, by a
preponderance of the evidence that the agency removed her from the AWS
program based on her participation in protected activity.
CONCLUSION
In conclusion, we find that the agency discriminated against complainant
based on her disability (Multiple Chemical Sensitivity) when the agency
failed to accommodate her disability. We further find that the agency
subjected complainant to a retaliatory hostile work environment. In order
to remedy complainant for its discriminatory actions, the agency shall
comply with the following ORDER.
ORDER
The agency is ordered to take the following action:
Within thirty (30) calendar days from the date this decision becomes
final, the agency shall provide complainant with an upgraded Air
Purification System equivalent to one of the following: an NSA Model
7000A or Pure Air Cloud-9 Model 300; or a system deemed appropriate by
engineering standards and/or as deemed necessary for proper clean air
standards by appropriate consultants.
The issue of compensatory damages is REMANDED to the agency.
Thereafter, the agency shall issue a final action in accordance with
64 Fed. Reg. 37,644, 37,657-58 (1999) (to be codified at 29 C.F.R. �
1614.110). The agency shall submit copies of the final agency action
to the Compliance Officer at the address set forth below.
Within forty five (45) calendar days from the date this decision becomes
final, the agency shall restore any leave used and/or wages and other
benefits lost due to the agency's failure to accommodate complainant's
MCS.
Within thirty (30) calendar days from the date this decision becomes
final, the agency shall restore complainant to the Alternative Work
Schedule Program.
The agency shall take appropriate preventative steps to ensure that
no employee is subjected to harassment and to ensure that appropriate
steps are taken immediately after management is notified of any such
harassment.
The agency shall post a notice in accordance with the paragraph below.
The agency shall immediately provide training to the Air Traffic Manager
and Assistant Air Traffic Manager concerning their duties and obligations
pursuant to the Rehabilitation Act and Title VII.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled, "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to
an award of reasonable attorney's fees incurred in the processing of the
complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall
be paid by the agency. The attorney shall submit a verified statement of
fees to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Cleveland, Ohio facility copies of
the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
September 18, 2000
Date Frances M. Hart
Executive Officer
Executive Secretariat
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ___________ which found that a
violation of Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq., and Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq. have occurred at
this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions, or privileges of employment.
The Department of Transportation, Federal Aviation Administration,
Cleveland Automated Flight Service Station, (hereinafter referred to
as �facility�) supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility has been found to have violated the Rehabilitation Act and
Title VII when it failed to accommodate an individual with a disability;
subjected the individual to a hostile work environment based on reprisal;
and removed the individual from participating in the Alternate Work
Schedule Program based on reprisal. The facility was ordered to provide
the individual with an accommodation for her disability, restore any
leave used, and restore her to the Alternate Work Schedule Program.
The facility was also ordered to provide the complainant with the
opportunity to establish her entitlement to compensatory damages, pay
her reasonable attorney's fees, provide training to the responsible
officials, and post this notice.
The facility will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her
right to oppose practices made unlawful by, or who participates in
proceedings pursuant to, Federal equal employment opportunity law.
_________________________
Date Posted: ____________________
Posting Expires: _________________
29 C.F.R. Part 16141According to testimony in the record, complainant
apparently placed the TS on a Performance Improvement Plan (PIP) due
to performance deficiencies. Later, the ATM removed the TS from the
PIP and did not support complainant's position with respect to her
supervision of the TS. Furthermore, complainant alleges that despite
repeated complaints to the ATM that the TS had physically threatened her,
her complaints went unaddressed by management.
2It appears that the poor interpersonal relationship between complainant
and the TS may have payed a role in the decision to implement the
revitalization plan, as the plan also provided for the temporary
reassignment of the TS and the rotation of other employees into her
position.
3In order to maintain currency, Area Supervisors were required to obtain
a medical clearance.
4The 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.