0120102467
08-10-2012
Lulu M. Sanchez, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Lulu M. Sanchez,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120102467
Agency No. DAL-09-0685-SSA
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the April 23, 2010 final Agency decision (FAD) 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. Our review is de novo. For the following reasons, the Commission AFFIRMS the FAD.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Claims Representative at the Agency's District Office in San Antonio, Texas. Complainant has chemical sensitivities and developed allergic reactions to cleaning chemicals and aerosol sprays used in the office. Complainant discussed her allergies with her second-level supervisor (S2) in January 2009. Complainant complained that cleaning and air freshener products used in the reception area were making her ill. S2 relocated Complainant to an area away from the reception area.
In April 2009, Complainant complained about aerosols and air fresheners in the bathroom affecting her. Complainant informed S2 that chemical sprays in the office were against Occupational Health and Safety Administration (OSHA) regulations. S2 spoke with the maintenance crew and asked that they dilute the cleaning products further. S2 stated that the maintenance crew began using hypoallergenic products, but Complainant still complained about the products affecting her. Additionally, S2 instructed employees during various staff meetings and by email to not bring unapproved cleaners or aerosols into the office. Complainant went out on medical leave from August 7, 2009 to September 15, 2009, and claimed that upon her return, she discovered aerosol cans in clear view in the office.
On October 5, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability when:
1. On June 26, 2009, she was denied reasonable accommodation with respect to removal of chemicals and aerosol sprays from the work area and restroom.
Additionally, Complainant alleged that the Agency discriminated against her in reprisal for prior protected EEO activity when:
2. She was charged absent without official leave (AWOL) and on September 15, 2009, she discovered that the aerosol sprays had been returned to the office.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R. � 1614.110(b).
In the FAD, the Agency determined that although Complainant did not provide medical documentation of her chemical sensitivities until late-July 2009, the Agency had granted accommodations for her such as moving her desk in January 2009, removing aerosols from restrooms in April 2009, requesting employees take home any sprays not approved by OSHA in June 2009, and constant reminders to employees about spraying whenever Complainant complained. Additionally, maintenance crews were advised of the use of unapproved products. Complainant was granted leave as she needed although she often had no leave balance. The Agency noted that Complainant was offered temporary placement in other offices; however, she declined. As a result, the Agency determined that Complainant had not been denied reasonable accommodation.
As to Complainant's reprisal-based claim, the Agency determined that for the pay period ending July 18, 2009, Complainant was charged 32 hours of AWOL. Management stated that she was charged AWOL because she did not have any available leave and she failed to provide medical documentation in connection with her absences. Once medical documentation was provided, her AWOL was changed to LWOP or advanced sick leave. Further, as to Complainant's claim regarding the aerosol cans, the Agency stated that only OSHA-approved products were used after Complainant returned from leave.
The Agency concluded that Complainant had presented no evidence that the Agency's reasons for its actions were pretextual. As a result, the Agency found that Complainant had not been retaliated against as alleged. Complainant submitted no arguments or contentions on appeal.
ANALYSIS AND FINDINGS
Denial of Reasonable Accommodation
The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. 1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F.R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) ("Enforcement Guidance"). Under the Commission's regulations, an Agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2 (o) and (p). The Commission shall assume without deciding (for the purposes of this decision) that Complainant is a qualified individual with a disability.
Upon review of the entire record in this case, the Commission finds that Complainant has not established that the Agency failed to provide her reasonable accommodation in violation of the Rehabilitation Act. The record reveals that in January 2009, when Complainant complained of the cleaners and air fresheners around the reception area, she was relocated away from that area. ROI, Ex. 7, at 1. When Complainant complained about the cleaners in the bathroom, the Agency removed products that employees had brought in. Id. at 2. Additionally, the maintenance crew began using hypoallergenic products which still bothered Complainant. Id. S2 then gave the maintenance crew a list of approved products and they began using only those items. Id. During various staff meetings, S2 discussed the chemicals and aerosol issues and supervisors spoke to individual employees who brought in unapproved products. Id. at 2-3. Additionally, supervisors performed periodic checks for unapproved chemicals. Id. at 3. Each time Complainant raised a concern, management immediately addressed and corrected the issue. ROI, Ex. 6, at 4. In addition, Complainant was granted leave as she needed. Id. at 3. Finally, Complainant's fourth and fifth-level supervisors offered to relocate Complainant to another building; however, she declined. ROI, Ex. 8, at 5; ROI, Ex. 9, at 3.
While Complainant may not have been offered the reasonable accommodation of her preference, an employer is not required to provide the precise accommodation the employee or applicant wants, so long as the accommodation offered is an effective one under the circumstances of the situation. See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002). Complainant has not offered any evidence that the accommodations offered and provided to her were ineffective. Accordingly, the Commission finds that Complainant has not established that she was denied reasonable accommodation in violation of the Rehabilitation Act.
Disparate Treatment
Complainant alleged that she was retaliated against for opposing S2's handling of her reasonable accommodation requests. Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). For instance, to establish a prima facie case of reprisal, Complainant generally must show that: (1) she engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between her protected activity and the adverse treatment. Whitmire v. Dept of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133. 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502. 519 (1993); Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Here, the Commission will assume without finding that Complainant established a prima facie case of reprisal discrimination. The Agency has articulated legitimate, nondiscriminatory reasons for its actions. As to being charged AWOL, S1 affirmed that Complainant was charged AWOL in July 2009, because she did not have any annual or sick leave and had not submitted any medical documentation to support her absence. ROI, Ex. 6, at 6. S1 stated that each time Complainant returned from leave, she informed Complainant that she would be charged AWOL unless she submitted medical documentation. Id. at 7. When Complainant submitted medical documentation on July 28, 2009, S1 changed the AWOL to advanced sick leave. Id.
Regarding Complainant's discovery of aerosols and chemicals in the office in September 2009, S2 affirmed that once found, that employee was asked to take the Lysol home even though he stated he had not used it. ROI, Ex. 7, at 4. S2 acknowledged that employees were using hand sanitizer and taking precautions due to the H1N1 flu virus outbreak; however, they were required to stop using their own products and use only those provided by the Agency. Id.
Because the Agency has proffered legitimate, nondiscriminatory reasons for the alleged discriminatory events, Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. The Commission finds that the record is devoid of any evidence that Complainant's prior protected EEO activity was a factor in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of retaliatory animus. Complainant has failed to carry this burden. Accordingly, the Commission finds that Complainant has failed to show that she was retaliated against as alleged.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (Nov. 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 10, 2012
Date
2
0120102467
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102467