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)).