0120160672
04-27-2018
Latoya D.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (U.S. Coast Guard), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Latoya D.,1
Complainant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(U.S. Coast Guard),
Agency.
Appeal No. 0120160672
Hearing No. 430-2014-00271X
Agency No. HS-USCG-00130-2014
DECISION
On November 25, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's November 4, 2015, final order 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. For the following reasons, the Commission AFFIRMS the Agency's final order which fully implemented the Equal Employment Opportunity Commission's Administrative Judge's (AJ) finding that Complainant did not demonstrate that she was discriminated against by the Agency.
ISSUE PRESENTED
The issue presented in this case is whether the AJ erred in finding that Complainant was not denied a reasonable accommodation.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Accounting Technician, GS-7 at the Agency's Cross Servicing Team, Accounting Operations Division in Chesapeake, Virginia. Complainant worked in a cubicle. On February 6, 2013, Complainant submitted a Request for Reasonable Accommodation form. Complainant indicated that because of her Allergy Rhinitis she suffered from breathing problems, she wrote:
"postnasal drip, watery eyes, itchy ears, chronic long lasting cough also causes me to be tired and not alert. Sudden change in temperature causes me to be sick (our building runs the air conditioner in the winter). This past year I have had three upper respiratory infections and had to have an antibiotic each time. When I catch a cold now it's a week in bed and as a result I have a little sick leave left. There is a sudden burst of cold air in the building that seems to go to my bones and triggers my allergies."
Complainant's physician recommended that her exposure to her work environment be limited and she increase the amount of time she worked from home. As an accommodation, Complainant requested three days of telework and a HEPA Air Purifier at her desk. She had already been approved telework for one day a pay period. In early April 2013, Complainant was moved from a cubicle to an enclosed office and was given a HEPA filter for her use. Complainant emailed her supervisor and thanked him, and indicated that it had made a big difference. Complainant's allergist, wrote in a letter dated April 16, 2013, that Complainant's "allergy symptoms had improved with recent changes made in her work environment (i.e., relocation to and enclosed work place, initiating of HEPA air filters). Complainant's physician recommended continuing the arrangement. He did not mention telework.
Complainant's supervisor also notified her that they were going to repeat the air quality study and invited her to ask her doctor for what substances he would like them to test. Complainant did not provide a response until late November 2013. Also, in October 2013, Complainant stopped teleworking.
On November 7, 2013, Complainant's supervisors told her that they were going to move her back to her cubicle and allow her to keep using the HEPA filter on her desk. Complainant objected to this change and was thereafter told that she could stay in the office pending her submission of updated medical documentation.
The following day, Complainant submitted a second Request for Reasonable Accommodation form. Complainant requested to continue using the HEPA filter in an enclosed office or to be given three days of telework a week. She again explained that three days of telework would build up her health to be able to work in the office twice a week. Following the submission of her request for Reasonable Accommodation, Complainant submitted her resignation.
On November 25, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on disability (allergy rhinitis) when on November 6, 2013, management failed to provide her with an effective reasonable accommodation.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. Complainant timely requested a hearing. The Agency however, filed a motion for summary judgment and Complainant responded. The AJ granted the Agency's motion and issued a decision without a hearing on October 8, 2015.
The AJ found that assuming arguendo that Complainant was a qualified individual with a disability, the record showed that Complainant requested either three days at home or a HEPA filter with an enclosed environment. According to the AJ, it was within the Agency's rights to request additional medical documentation. Further, the record established that Complainant was allowed to continue working in the enclosed office until she retired on January 31, 2014. The AJ found that the Agency provided Complainant with a reasonable accommodation. The AJ found that Complainant never explained that she wanted both the office and to work from home three days a week, and as she had stopped working from home on her approved day, there was no way for the Agency to know that she wanted both. Nevertheless, the AJ found that the enclosed office and HEPA filter were an effective accommodation.
Further, the AJ noted Complainant's physician's November 26, 2013, letter, where in, he indicated that Complainant had been tested and had a positive allergy results to dust, cockroach, dog dander, molds, trees, and a variety of ragweeds, the physician indicated that "from a clinical perspective, work related respiratory disease was usually related to excessive exposure to dust/dust mite/molds" and until additional environment testing could be done, however, testing for these substances were not usually a part of environmental testing.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant did not prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that the AJ erred by issuing a decision without a hearing. She maintains the AJ misunderstood the sequence of events and the Agency's ultimate failure to accommodate her forced her into retirement. She contends that she suffered severe breathing problems at work and her recovery time was getting worse. Complainant maintains that the AJ erred in finding that the Agency's accommodation of an office and a HEPA filter were effective. She contends that while she was grateful for any relief and her symptoms immediately improved, she still had problems.
Complainant argues that she continued to seek three days of telework so that she could be out of the environment which was making her ill. She also argues that because she worked on a computer all day, her job was perfect for telework. Further, while Complainant's physician did not specify how many more days of telework Complainant needed in addition to the one that she had been given, this is when the Agency should have engaged in the interactive process. Complainant asserts that the Agency's efforts were not effective and she continued to suffer until she could not take it anymore and retired.
In response, the Agency contends, among other things, that the AJ correctly found that Complainant was provided with an effective accommodation.
STANDARD OF REVIEW
In rendering this appellate decision, we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (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").
ANALYSIS AND FINDINGS
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
In the instant case, we find that all requirements have been met for a motion for summary judgment and we find that there are no material facts at issue. Therefore, we find the AJ properly issued a decision without a hearing.
The Commission's regulations require an agency to make reasonable accommodation for the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o), 1630.2(p). A qualified individual with a disability is an "individual with a disability" who satisfies the requisite skill, experience, education and other job related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. � 1630.2(m).
Essential functions are the fundamental job duties of the employment position the individual with a disability holds or desires. 29 C.F.R. � 1630.2(n). A function may be essential, for example, because the reason the position exists is to perform that function or there are a limited number of employees available among whom the performance of that job function can be distributed. Id. at � 1630.2(n)(2). Evidence of whether a particular function is essential includes the employer's judgment as to which functions are essential; written job descriptions; and the amount of time spent on performing that function. Id. at � 1630.2(n)(3).
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant is a qualified individual with a disability, the record shows that Complainant was provided a reasonable accommodation that was in accordance with her medical documentation. Specifically, after Complainant indicated that she was having a problem breathing she was moved to an office and was provided a HEPA filter. We find that Complainant communicated to the Agency that the accommodation was successful and effective. Moreover, she stopped using the one day of telework that she had been granted, which would also indicate that the provided accommodations were effective. On November 7, 2013, Complainant's supervisors told her that they were going to move her back to her cubicle and allow her to keep using the HEPA filter on her desk. Complainant objected to this change and was thereafter told that she could stay in the office pending her submission of updated medical documentation. The following day, Complainant submitted a second Request for Reasonable Accommodation form. Complainant requested to continue using the HEPA filter in an enclosed office or to be given three days of telework a week. Following the submission of this Request for Reasonable Accommodation, Complainant submitted her resignation. We find that Complainant left her position prior to presenting updated medical documentation; therefore, she ended the interaction process with the Agency prior to any decisions being made about her accommodation. However, the record is clear that up until her resignation, she was in an office using the HEPA filter that she and her physician deemed effective.
Further, with respect to Complainant's contentions on appeal, we find that other than Complainant's conclusory statements, she has not presented any evidence that the AJ erred in finding that, she was not denied a reasonable accommodation. The Commission has long held that an Agency is obligated to provide an effective accommodation and not necessarily Complainant's accommodation of choice. Therefore, we find that Complainant did not demonstrate that she was denied a reasonable accommodation.
CONCLUSION
Accordingly, we AFFIRM the Agency's final order which found that Complainant did not demonstrate that she was denied a reasonable accommodation.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the time
limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
4/27/18__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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