Steven M. Spiegel, et al.v.Environmental Protection Agency 01A03590, 01A03883, 01A04407, 01A05024 October 13, 2000 . Steven M. Spiegel, Carol M. Bass, Richard K. Biggs, and Patricia L. Sims, Complainants, v. Carol M. Browner, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity CommissionOct 13, 2000
01a03590etal (E.E.O.C. Oct. 13, 2000)

01a03590etal

10-13-2000

Steven M. Spiegel, et al. v. Environmental Protection Agency 01A03590, 01A03883, 01A04407, 01A05024 October 13, 2000 . Steven M. Spiegel, Carol M. Bass, Richard K. Biggs, and Patricia L. Sims, Complainants, v. Carol M. Browner, Administrator, Environmental Protection Agency, Agency.


Steven M. Spiegel, et al. v. Environmental Protection Agency

01A03590, 01A03883, 01A04407, 01A05024

October 13, 2000

.

Steven M. Spiegel, Carol M. Bass, Richard K. Biggs, and Patricia L. Sims,

Complainants,

v.

Carol M. Browner,

Administrator,

Environmental Protection Agency,

Agency.

Appeal Nos. 01A03590, 01A03883, 01A04407, and 01A05024

Agency Nos. 99-0046-HQ, 99-0040-HQ, 99-0042-HQ, and 99-0125-HQ

DECISION

Since the instant complaints consist of similar claims, we shall

consolidate the appeals for joint processing. See 29 C.F.R. � 1614.606.

The agency issued one consolidated decision dated March 13, 2000,

concerning the complaints of the four complainants captioned above.<1>

The instant appeals are from that March 13, 2000 decision.

Upon review, the Commission finds that the agency's consolidated decision

dated March 13, 2000, dismissing complainants' complaints for failure to

state a claim is improper pursuant to 29 C.F.R. � 1614.107(a)(1).<2> In

their complaints, complainants allege discrimination based on disability

(multiple chemical sensitivity) and in reprisal for prior EEO activity

when on February 1, 1999, the agency, through �a Partnership Agreement

negotiated by both the AFGE/NTEU Unions,� issued an Alternative Work

Space (AWS) policy which required them to be medically evaluated every

two years in order to remain in the program. Complainants stated that

they previously provided medical documentation to demonstrate that they

had disabilities and needed reasonable accommodation, which the agency

approved, and this AWS policy requiring them to again provide medical

documentation violated the Rehabilitation Act.

In response to complainants' appeals, the agency contends that

complainants are not aggrieved with regard to the identified AWS policy.

The agency states that in 1989, it initiated a health and safety program

that provided an AWS program to its employees who alleged that they were

sensitive to chemicals present in its offices. The agency indicates

that this 1989 AWS policy was thereafter criticized by the United

States General Accounting Office, and, thus, its management and its

two headquarters unions negotiated a partnership agreement and issued

the new AWS policy, which applied to all of its employees, i.e., those

participating in the AWS program as a reasonable accommodation, as well

as those who were participating for other reasons. The agency stated

that complainants applied for the AWS program, and had been accepted into

the program and continued to work at home and in the Crystal Station AWS.

EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides that prior to a

request for a hearing in a case, the agency shall dismiss an entire

complaint that fails to state a claim pursuant to 29 C.F.R. � 1614.103.

The Commission's federal sector case precedent has defined an �aggrieved

employee� as one who suffers a present harm or loss with respect to a

term, condition, or privilege of employment for which there is a remedy.

Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21,

1994).

The Commission's Enforcement Guidance on Disability-Related Inquiries and

Medical Examinations of Employees Under the Americans with Disability Act

(ADA)<3>, EEOC Notice No. 915.002 at p. 23 (July 26, 2000) (emphasis

original), provides: �An employer may require an employee to provide

documentation that is sufficient to substantiate that s/he has an

ADA disability and needs the reasonable accommodation requested, but

cannot ask for unrelated documentation.� The Enforcement Guidance also

provides:

If the employee subsequently should request another reasonable

accommodation related to his [medical condition], the employer may ask

for reasonable documentation relating to the new request (if the need is

not obvious). The employer, however, cannot ask again for documentation

that the employee has an ADA disability where the medical information the

employee provided in support of his first reasonable accommodation request

established the existence of a long-term impairment that substantially

limits a major life activity.

Enforcement Guidance on Disability-Related Inquiries at p. 23 - 24,

n. 54 (citation omitted).

Complainants are alleging that they are required to submit medical

evaluations every two years under the agency's AWS policy in order

to stay in the AWS program, in which they participate as a reasonable

accommodation. Specifically, complainants indicate that they previously

provided the agency with necessary medical documentation regarding their

disabilities and the agency thereafter provided them with reasonable

accommodation by approving their request to participate in the AWS

program. Complainants' claims amount to a claim that the agency is

violating the Commission's Enforcement Guidance on Disability-Related

Inquiries and Medical Examinations of Employees Under the Americans with

Disability Act (ADA). Therefore, we find that the instant complaints

state a claim. The Commission does not address the merits of the

complaints in the instant decision.

Accordingly, the agency's decision is hereby REVERSED. The complaints

are REMANDED for further processing in accordance with the Order below.

ORDER (E0900)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claims within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue

to complainant a copy of the investigative file and also shall notify

complainant of the appropriate rights within one hundred fifty (150)

calendar days of the date this decision becomes final, unless the matter

is otherwise resolved prior to that time. If the complainant requests a

final decision without a hearing, the agency shall issue a final decision

within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement of

the order. 29 C.F.R. � 1614.503(a). The complainant also has the right

to file a civil action to enforce compliance with the Commission's order

prior to or following an administrative petition for enforcement. See 29

C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,

the complainant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to File

A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action

for enforcement or a civil action on the underlying complaint is subject

to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the

complainant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. 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

(R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. Filing a civil

action will terminate the administrative processing of your complaint.

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

October 13, 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

______________________________

1There was one other individual whose complaint was adjudicated in the

agency's March 13, 2000 decision, but that individual has not filed an

appeal with the Commission.

2On 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. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

3Pursuant to the Rehabilitation Act Amendments of 1992, the ADA's

employment standards apply to all non-affirmative action employment

discrimination claims of individuals with disabilities who are federal

employees or applicants for federal employment. Pub. L. No. 102-569 �

503(b), 106 Stat. 4344, 4424 (1992) (codified as amended at 29 U.S.C. �

791(g)(1994)).