0320170003
11-16-2016
Soila R.,1 Petitioner, v. Thomas E. Perez, Secretary, Department of Labor, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Soila R.,1
Petitioner,
v.
Thomas E. Perez,
Secretary,
Department of Labor,
Agency.
Petition No. 0320170003
MSPB No. AT-0752-13-7403-I-2
DECISION
On September 16, 2016, Petitioner 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 Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the reasons stated below, the Commission CONCURS with the MSPB's decision which found that Petitioner did not demonstrate that she was denied a reasonable accommodation or subjected to reprisal.
BACKGROUND
Petitioner worked as a Workers' Compensation Assistant at the Agency's facility in Jacksonville, Florida. Petitioner alleged that the Agency discriminated against her on the bases of disability (acute sensitivity to various chemicals and odors) and reprisal for prior protected EEO activity when she was removed from her position.
Initially, Petitioner filed an appeal with the MSPB. Thereafter, she requested a stay in order to pursue an EEO complaint with the EEOC. Petitioner's request was granted and her appeal was dismissed without prejudice. Thereafter, a hearing before an MSPB Administrative Judge (AJ) was held. Petitioner alleged that the Agency discriminated against her by failing to accommodate her disability and retaliated against because of her prior protected EEO activity. The AJ found that Petitioner's medical condition, an acute sensitivity to various chemical and odors, rendered her unable to safely and efficiently perform the core duties of her position. The AJ also determined that Petitioner did not show that she was subjected to reprisal as her removal was already planned prior to her filing her complaint. The AJ issued an initial decision finding that the Agency removed Petitioner for medical inability to perform the duties of her Workers' Compensation Assistant position.
Thereafter, on August 17, 2016, Petitioner sought review by the full Board. The Board denied the petition for review and affirmed the initial decision. Specifically, on review, Petitioner argued that the evidence was insufficient to sustain the Agency's burden of proof regarding: (1) her medical inability to perform the essential elements of her position; (2) her not being a qualified individual with a disability; (3) the accommodations she requested imposing an undue hardship on the Agency. She also argued that the AJ never determined which of her duties were essential. Petitioner maintained that her absences were "perhaps even less than other employees with routine illnesses such as the flu or other minor periodic illnesses," and that the AJ erred in analyzing her disability claim.
The Board found that the Agency proved its charge, showing the existence of a high probability that, given the nature of her work in a Federal building accessible to the public at large, Petitioner's condition would likely result in injury to herself. The Board found that Petitioner's high level of vulnerability to scents and odors in her workplace adequately supported the Agency's concerns regarding her ability to safely perform the essential functions of her position. The evidence showed that Petitioner's exposure to scents and odors resulted in "debilitating migraines, chronic sinusitis, dysphasia, immediate excessive pain, elevated blood pressure, elevated heart rate, blurred vision, vomiting, dehydration, and on numerous occasions visits to the emergency room." The Board found that Petitioner's assertion that her periodic inability to work was no worse than employees with routine illnesses like the flu, was not supported by record and was inconsistent with both the medical evidence and Petitioner's own assertions.
Further, the Board found that the Agency took reasonable but ultimately ineffective measures to limit Petitioner's exposure to scents and chemicals, yet Petitioner found it necessary to file numerous workers' compensation claims during the first half of 2013. The Board agreed with the AJ that it was not safe for Petitioner to work in the Federal building where her office was located. The Board found that in light of the difficulty in preventing an accidental exposure to toxic substances and the dire consequences of such an occurrence, Petitioner failed to demonstrate she could safely perform the essential functions of her position in an office environment.
The Board also determined that Petitioner failed to establish that the Agency discriminated against her based on a failure to accommodate theory. The Board agreed with the AJ that Petitioner had an impairment that substantially limited at least one of her major life activities. Nevertheless, the AJ found that Petitioner failed to establish that she was a qualified individual with a disability. Petitioner challenged this argument on review. The Agency indicated that the only accommodation that Petitioner identified was a scent-free environment or full-time telework, and these options were not feasible under the circumstances. Specifically, the Agency showed that a scent-free work environment was simply not possible in a Federal office building like the one where Petitioner worked. The Board also agreed with the AJ that Petitioner's job could not be performed by telework as a significant portion of her daily workload involved working with files containing personally identifiable information, which was protected by the Privacy Act, and, as a result, could not leave the office. The record indicated that these duties were a substantial part of Petitioner's workload, the elimination of which would require a significant restructuring of her position which would be an undue hardship on the Agency. The record also indicated that the Agency searched for a vacant funded position to which Petitioner could be reassigned but was unable to find one.
The Board found that the evidence established that the Petitioner could not safely work in her office as the Agency could not reasonably accommodate her medical need for a chemical and scent-free environment, and that neither telework nor a transfer to another position was possible under the circumstances presented, the Board agreed that Petitioner was medically unable to perform the essential functions of her position and affirmed the initial decision.
Petitioner then filed the instant petition.
ANALYSIS AND FINDINGS
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. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
An Agency is required to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified employee with a disability, unless it can demonstrate that the accommodation would impose an undue hardship on the operation of its business. 29 C.F.R. � 1630.9(a). The term "qualified," with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds and, with or without reasonable accommodation, can perform the essential functions of the position. 29 C.F.R. � 1630.2(m).
A reasonable accommodation is a modification or adjustment to the work environment or to the manner or circumstances under which a position held or desired is customarily performed, that enables a qualified individual with a disability to perform the essential functions of that position. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, General Principles (Oct. 17, 2002). An accommodation must be effective in meeting the needs of the individual. Id. In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position. Id. An agency must consider each request for reasonable accommodation and determine: (1) whether the accommodation is needed; (2) if needed, whether the accommodation would be effective; and (3) if effective, whether providing the accommodation would impose an undue hardship. Id. at Question 32.
On appeal, Petitioner argues that she never claimed that she could not perform the essential functions of her position without accommodation; we agree with the MSPB that this argument is inconsistent with her request for reasonable accommodation and her medical documentation. By definition, a reasonable accommodation - in the context of job performance - is a change in a job that enables a qualified individual with a disability to perform the essential functions of their position. The record reflects that Petitioner requested reasonable accommodation in the form of a scent free environment or full time telework.
With regard to a scent free environment, Petitioner's medical documentation showed that her exposure to scented products and perfumes, "triggers immediate headache, blurry vision, and sometimes loss in her voice," as well as "elevated blood pressure and a change in her heart rate." A pulmonologist likewise noted that Petitioner's history of migraines was provoked by workplace exposure to "various chemicals and odors such as colognes, perfumes, lotions, and hairsprays. The pulmonologist opined that, in the absence of either a scent free environment or teleworking, Petitioner "may have to apply for social security disability." Lastly, the record included a review by a doctor at the Agency's request. The doctor opined that Petitioner was unable to perform her job when she experienced migraines due to exposure to strongly scented products. He also wrote that he was unaware of any alternative accommodations that would be effective under the circumstances.
With regard to Petitioner's argument that the Agency should have granted her request for telework, we agree with the MSPB that telework in this case was not an effective accommodation -- i.e., one that would enable Petitioner to perform the essential functions of her position. Specifically, we emphasize that the MSPB AJ credited the Agency's explanation that she could not telework because her work involved confidential information that could not be taken out of the office. Finally, as to Petitioner's argument that the MSPB failed to analyze undue hardship with regard to telework, we find that the MSPB did not need to reach the issue of undue hardship due to its previous determination that telework was not an effective accommodation in Petitioner's situation and that she was not qualified.
Finally, we find that the record showed that the Agency attempted to locate a vacant funded position to which Petitioner could be reassigned where she could perform the essential functions of the position but none could be located. Accordingly, we find that Petitioner did not demonstrate that she was denied a reasonable accommodation.2
CONCLUSION
Based upon a thorough review of the record, it is the decision of the Commission to concur with the final decision of the MSPB finding no discrimination. The Commission finds that the MSPB's decision constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
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 (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
__11/16/16________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
2 Although Petitioner did not specifically raised her claim of reprisal discrimination here, we find, however, that the record supports the MSPB's determination that she did not demonstrate that she was subjected to reprisal as the Agency made its plans to remove her prior to her filing her EEO complaint.
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0320170003