03a00077
09-26-2000
Jacqueline M. Yacher, Petitioner, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Jacqueline M. Yacher v. Department of Health and Human Services
03A00077
September 26, 2000
.
Jacqueline M. Yacher,
Petitioner,
v.
Donna E. Shalala,
Secretary,
Department of Health and Human Services,
Agency.
Petition No. 03A00077
MSPB No. PH-0752-97-0455-I-2
DECISION
On March 22, 2000, petitioner's estate 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, as amended, 29 U.S.C. � 791 et seq.<1> Petitioner, a Health
Insurance Specialist at the agency's Health Care Financing Administration
(HCFA) in Baltimore, Maryland, was removed from her position effective
August 13, 1997, for failing to report for duty. On November 24, 1998,
petitioner filed a mixed case appeal with the MSPB. After a hearing,
the Administrative Judge (AJ) found that the petitioner's removal was
within the limits of reasonableness and was not motivated by disability
discrimination. The Board denied her 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.<2> The Commission must determine whether the decision of the
MSPB with respect to the allegation of discrimination constitutes an
incorrect interpretation of any applicable law, rule, regulation or policy
directive, or is not supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
In the summer of 1995, the Health Care Financing Administration (HCFA)
relocated to a new facility in Baltimore, Maryland (the single site
facility). Petitioner refused to report for duty at this facility
claiming "adverse health [e]ffects." Between July 1995 and March 1997,
petitioner's supervisor permitted her to work temporarily in the library
of a building occupied by the Social Security Administration and then,
until the agency's lease expired, in the "professional building."
During this two year period, the agency repeatedly requested that
petitioner sign medical releases, provide documentation concerning her
alleged condition and be examined by an agency physician. Petitioner
consistently failed to cooperate with the agency's requests. Between
July 1995 and February 1997, she submitted three notes and one letter.
Physician No.1 (P1), whose areas of expertise were identified as
neurology and psychiatry, submitted two notes stating that petitioner
suffered from "multiple allergies and sensitivities to volatile organic
chemicals" and was "unable to work in an environment in which fumes of
organic chemicals are present." Physician No.2 (P2), identified as a
consultant in occupational and environmental medicine, submitted a note
stating that petitioner had been evaluated, diagnosed, and treated for
Multiple Chemical Sensitivity (MCS) secondary to Sick Building Syndrome
in May 1988. According to P2, laboratory testing confirmed petitioner's
sensitivity to petro chemicals. The agency physician reviewed the notes
and the results of the air quality testing at the single site facility
and concluded that there were no objective reasons for petitioner's
claimed inability to report to the single site complex. Accordingly,
the agency recommended that petitioner be directed to submit to an agency
medical examination. Petitioner refused to submit.
Finally in February 1997, the agency received a letter from Physician
No.3 (P3), whose areas of expertise were identified as occupational and
environmental medicine, stating that petitioner had "neurotic syndrome
characterized by cognitive impairment, memory deficits, and a balance
disorder due to probable chronic encephalopathy from sick building
chemical exposures, chronic fatigue syndrome, fibromyalgia, multiple
chemical sensitivities, and probable impaired liver detoxification
function." P3 opined, without further explanation, that if petitioner was
forced to report to work at the single site facility, "the likelihood
of her developing total and permanent disability is very high."
The agency physician found that P3's medical findings were conclusory
and not supported by objective medical data. The agency physician
again recommended that petitioner be directed to report for duty at the
single site facility or that she submit to an agency medical examination.
In response, petitioner requested sick leave, contending that she could
not perform her duties at the single site complex.
On March 27, 1997, petitioner's supervisor issued a proposal to remove
petitioner for failure to report for duty. Petitioner appealed this
proposal and requested additional time to obtain medical reports.
The reviewing official granted petitioner several extensions to submit
medical documentation and also agreed to place her on paid administrative
leave as of May 2, 1997. Petitioner submitted her response to the
proposal and attached the results of laboratory tests performed by P3.
During an oral presentation by her attorney, petitioner agreed to submit
to a medical examination by a physician of the agency's choosing, to
provide medical evidence, and to execute a medical release for P3's files.
In spite of this agreement, petitioner did not submit additional medical
reports, execute the release or submit to the examination. Petitioner
rejected all four of the physicians the agency proposed to examine her,
contending that they were not qualified to treat her alleged condition.
Notably, these four local physicians all had experience treating MCS and
had both professional and educational credentials that far exceeded those
of the out of state physicians petitioner believed were more qualified
to assess her. When petitioner failed to comply with the agreement,
he affirmed the proposal to remove her.
As a threshold matter, petitioner must establish that she is a �individual
with a disability� within the meaning of the Rehabilitation Act.
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).
In the instant case, petitioner contends that because of "multiple
chemical sensitivities," she was substantially impaired in the major life
activities of cognition, breathing and working. She provided the agency
with notes and reports stating that because of her sensitivity to multiple
chemicals, she needed alternate work space unless several accommodations
were made to the single site facility. The agency was unable to determine
from this documentation whether petitioner's immunological impairment
actually substantially limited any one of her major life activities.
Accordingly, the agency repeatedly requested that she execute medical
release forms and submit to an agency medical examination. Petitioner
refused to do so and, at the hearing, was unwilling to answer questions
asked in order to ascertain the degree of impairment she experienced
upon exposure. Her physicians provided very general diagnoses about MCS,
not how it, in fact, significantly affected petitioner.
The determination as to whether an individual has an impairment which
substantially limits a major life activity is made on a case by case
basis. Bragdon v. Abbott, 524 U.S. 624 (1998); 29 C.F.R. pt. 1630,
App. � 1630.2(j). In Scalese v. Department of the Air Force, EEOC
Petition No. 03960050 (July 10, 1996), the Commission found that
petitioner, who when exposed to certain chemicals had symptoms such
as skin flushing, headaches, dizziness, difficulty concentrating,
blurred vision and an inability to read, experienced such symptoms in
any enclosed environment with central heating and/or air conditioning
without an air purifier. The Commission thus concluded that he was
substantially limited in the major life activity of working because
the impairment restricted him from performing a broad range of jobs in
various different classes. However, in Groshans v. Department of the
Navy, EEOC Petition No. 03950109 (February 5, 1996), the Commission held
that petitioner, who was hypersensitive to alcohol, diesel fumes and
"strong odors," did not have an impairment which substantially limited
a major life activity because her anaphylactic attacks occurred in very
limited venues, had no severe impact on her daily activities, and only
appeared to prevent her from working in one specific building.
The MSPB AJ reviewed the experts' reports and observed P4 during the
hearing. The AJ determined that the weight of the evidence presented
failed to establish an objective medical basis for the diagnosis of MCS.
The record supports this finding. Similarly, petitioner's own testimony
failed to provide specific factual details to establish an impairment that
substantially limits her ability to breathe, think or work. Notably the
record is devoid of any evidence akin to that found in Scalese, EEOC
Petition No. 03960050 and is more on point with Groshans, EEOC Petition
No. 03950109. Furthermore, by failing to execute medical release forms
and submit to an agency medical examination, petitioner refused to
engage in the interactive process contemplated by 29 C.F.R. � 1630.2(o).
See EEOC Enforcement Guidance on Reasonable Accommodation and Undue
Hardship Under the Americans With Disabilities Act, Question 7 (March 1,
1999) (permitting an employer to require an individual to see a health
care professional of the employer's choice for the purpose of documenting
need for non-obvious accommodation and disability). As a result, the
record lacks sufficient information to make a reasoned determination as
to whether petitioner's hypersensitivity to petro chemicals substantially
limited her in a major life activity. See Haug v. United States Postal
Service, EEOC Appeal No. 01951337 (January 9, 1998). Accordingly, the
Commission finds that the agency did not discriminate against petitioner.
For the foregoing reasons, it is the decision of the Commission to CONCUR
with the final decision of the MSPB finding no discrimination. Based on
our finding that petitioner failed to prove she was an individual with a
disability within the meaning of the Rehabilitation Act, the Commission
declines to address the MSPB's analysis regarding the agency's obligation
to offer her a reasonable accommodation. 29 C.F.R. � 1630.2(o).
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0400)
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
September 26, 2000
__________________
Date
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
______________________________
1 The 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. 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.
2 On 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. The regulations, as amended, may also be found
at the Commission's website at www.eeoc.gov.