0120140227
08-19-2016
Martina S.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Contract Audit Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Martina S.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Contract Audit Agency),
Agency.
Appeal No. 0120140227
Hearing No. 570201100614X
Agency No. H1006
DECISION
On October 10, 2013, Complainant filed an appeal from the Agency's October 17, 2013, 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.2 For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
Whether the Agency discriminated against Complainant based on disability when it failed to accommodate her when it did not eliminate her exposure to scents.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Security Specialist at the Agency's Security Office, Resources Division in Washington, D.C. In September 2007, Complainant's office underwent construction. She complained that the fumes and dust were making her ill, and was admitted to the hospital for chest pains and shortness of breath. The Agency conducted air tests, and determined that it was safe for Complainant to return to her work space. Complainant stated that the smells were still making her ill, and requested an outside office space. Complainant's supervisor (S1) (no disability) denied Complainant's request due to the confidential nature of her work, but advised the staff to not spray anything in the work space. S1 also requested that Complainant provide medical documentation, which she did not do.
In 2008, Complainant complained several times of odors in the work space. S1 stated that she informed the staff to be careful of using certain products. S1 also stated that the staff expressed confusion about which products to avoid because they were unsure of Complainant's sensitivities, and had seen Complainant use some of the products mentioned. On August 28, 2008, Complainant provided S1 with a medical note stating that she was "intolerant of stray perfumes or scents," and that exposure to such things "should be limited." On September 3, 2009, Complainant sent S1 a list of items she claimed to be allergic to, such as cleaning supplies, markers, and Lysol. S1 replied that once Complainant provided medical documentation, she would send a message to the staff to specify which items they needed to refrain from using at work. Complainant did not provide supporting medical documentation.
On the morning of April 7, 2010, a coworker (C1) (no disability) sprayed Lysol on her telephone. When Complainant arrived at the office, she informed C1 that she was allergic to Lysol, and soon left the building because she could not breathe. Following the incident, S1 instructed C1 to not use Lysol, even when Complainant was not in the office. On April 8, 2010, Complainant provided another medical note stating that she was "intolerant to strong fumes and odors," and "should not be exposed to aerosols."
On June 7, 2010, S1 arrived to find Complainant sitting outside the building. Complainant stated that she believed that someone had sprayed Lysol, and that she was having trouble breathing. Complainant was taken to the hospital. When S1 asked the staff what had been sprayed, they all responded that they had not sprayed anything. S1 ordered that the air be tested. The test indicated that no aerosols were utilized.
On June 28, 2010, Complainant submitted a request for a reasonable accommodation to be moved to another office location. Complainant provided a letter from her doctor, dated August 31, 2010, stating that she "suffers from reactive airway disease," and that her condition worsens when exposed to fumes. The Agency sent Complainant's medical documentation to the Department of Health and Human Services' Federal Occupational Services (FOH) for evaluation. The FOH interacted with Complainant's doctor and determined that since Complainant only expressed symptoms in one specific location, she was not disabled, as defined by the Americans with Disabilities Act Amendments Act. The FOH also stated that there was nothing to indicate that Complainant could not work in the environment, as long as there was no use of Lysol or strong smelling perfumes. On September 8, 2010, S1 denied Complainant's reasonable accommodation request because her medical documentation indicated that she could work as long as Lysol, aerosols, and strong perfumes are prohibited. S1 stated that employees have been notified that the use of these items is prohibited, and signs have been posted in the area.
On July 20, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (physical) when it subjected her to a hostile work environment on June 7, 2010, when S1 failed to protect her from C1, who intentionally sprayed Lysol in the workplace.
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 (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's April 20, 2012, motion for a decision without a hearing, and issued a decision without a hearing on September 19, 2013.
As an initial matter, the AJ found that there were no material facts in dispute, or questions of credibility that needed to be resolved at a hearing. As such, he determined that summary judgment was appropriate. While the AJ noted that the accepted issue was harassment, and not a failure to accommodate, the AJ addressed both issues.
In regards to the claim that the Agency failed to accommodate Complainant, the AJ found that the Agency did accommodate her. The AJ presumed, without finding, that Complainant was a qualified individual with a disability; and found that after each incident, the Agency took measures to ensure that odors that may cause Complainant a reaction were eliminated. The AJ found that S1 directed the staff to refrain from using aerosols; requested to have the air tested; and had the FOH provide guidance in how to accommodate Complainant. For Complainant's harassment claim, the AJ found that there was no evidence that anyone sprayed anything on June 7, 2010, much less sprayed anything with the intent to harass Complainant because of her disability. Accordingly, the AJ granted summary judgment in favor of the Agency.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to show that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal, and filed a brief in support of her appeal on December 8, 2013. The Agency submitted an opposition brief on January 13, 2014.
CONTENTIONS ON APPEAL
On appeal, Complainant alleges that the AJ erred in finding that the Agency reasonably accommodated her. Specifically, Complainant argues that the record shows that on numerous occasions, she was exposed to scents that her physician determined were detrimental to her breathing.
In its opposition brief, the Agency argues that Complainant has not shown that she is an individual with a disability because the medical documentation provided notes that she is "intolerant" of perfumes and scents, which does not support that Complainant has an impairment or disability. Additionally, even assuming that Complainant is an individual with a disability, the Agency argues that S1 accommodated her, by instructing C1 to not use Lysol in the office.
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
The Commission has the discretion to review only those issues specifically raised in an appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 9-10 (August 5, 2015). We note that on appeal, Complainant only argues that the AJ erred when he found that the Agency did not accommodate her. As such, we will not address Complainant's claim that the Agency discriminated against her based disability when it subjected her to a hostile work environment; or the AJ's issuance of a decision without a hearing.
Failure to Provide Reasonable Accommodation
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. 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 EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Reasonable Accommodation Guidance).
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 such functions as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. � 1630.2(i). Examples of other major life activities include, but are not limited to, sitting, standing, lifting, and reaching. 29 C.F.R. Part 1630 App. � 1630.2(i). They also include thinking, concentrating, interacting with others, and sleeping. See EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, EEOC No. 915.002 (Mar. 25, 1997).
In this case, we find that Complainant has not shown that the Agency discriminated against her based on disability when it failed to provide a reasonable accommodation. Complainant's initial medical documentation did not show that she was an individual with a disability. The record contains medical statements from Complainant's doctor that state that she is "intolerant of stray perfumes or scents," and "intolerant of strong fumes and odors and should not be exposed to aerosols." However, Complainant's doctor did not state that Complainant had an impairment, nor did he describe how she was substantially limited in a major life activity.
In support of her June 28, 2010, request for reasonable accommodation, Complainant provided a medical statement noting that her condition was "reactive airway disease," and that she should not be exposed to fumes. Assuming, arguendo, that Complainant is a qualified individual with a disability, we find that while the Agency denied her requested accommodation of an office move,3 it accommodated her by instructing employees that use of aerosol sprays such as Lysol, strong smelling products, and cleaning products were prohibited; posting signs in the area noting that use of these items was prohibited; and ordering cleaning wipes that could be used in lieu of Lysol. We note that while the Rehabilitation Act provides that qualified individuals with a disability be granted an effective reasonable accommodation, it does not entitle them to the accommodation of their choice. See Castaneda v. United States Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994); see also EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, Question 9 (rev. Oct. 17, 2002). Complainant has not alleged that any additional incidents have occurred since the June 7, 2010 incident, and as such, we find that the Agency has effectively accommodated Complainant. Accordingly, we find that Complainant has not shown that the Agency failed to provide a reasonable accommodation when it did not eliminate her exposure to scents.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order adopting the AJ's finding that the Agency did not discriminate against Complainant based on disability when it failed to accommodate her.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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
_8/19/16_________________
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.
2 While we note that Complainant's October 10, 2013, appeal was premature, the Commission finds that the appeal is now ripe for adjudication as the Agency subsequently issued a final order on October 17, 2013.
3 On July 13, 2010, Complainant was temporarily moved out of her office, pending the outcome of an internal investigation into her allegation that C1 was trying to harm her.
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