01A10560
07-10-2002
Teri Friend, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Teri Friend v. Department of Labor
01A10560
July 10, 2002
.
Teri Friend,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 01A10560
Agency No. 8-02-153
DECISION
INTRODUCTION
Complainant timely initiated this appeal from the final agency decision
(FAD) concerning her complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleges in her complaint that she was subjected to unlawful discrimination
on the bases of her age (fifty years old at the time of the agency actions
at issue) and disability (asthma, osteoarthritis, and obesity) when
(1) management created a hostile work environment to force her to take
disability retirement, and (2) denied her the reasonable accommodation
of working at home. For the following reasons, the Commission AFFIRMS
the agency's finding that complainant failed to prove her claims of
discrimination.
BACKGROUND
The record reveals the following information pertinent to this appeal.
At all times relevant to the agency actions at issue, complainant
was employed as a Claims Examiner at the agency's Office of Workers
Compensation Programs in New York, New York. On April 28, 1998,
complainant, who has a history of suffering from asthma, suffered
an asthma attack and subsequently went to see her physician. After
examining complainant, her physician prepared a document in which he
identified her condition as �occupational asthma related to her current
work place environment,� and stated that she should not return to her
workplace under any circumstances and that continued exposure to her
workplace could result in her death. The physician further provided
that complainant had told him that her work environment was poorly air
conditioned and potentially contaminated with mold, and that she �must
be entirely removed from her work place environment until substantial
changes can be made and verified in the quality of air.�
In a letter dated May 1, complainant informed the agency of this
situation, and requested �a reasonable accommodation in the way of an
alternate workplace.� The agency denied this request, but offered to
continue to offer her the accommodations it had provided her previously,
which included moving her to a location with a window she could open,
and/or moving her to a space with painted plaster, rather than fabric,
walls (to lessen the dust accumulation common with fabric walls).
The agency also offered to have the fabric walls of her office space
cleaned with a steam cleaning machine purchased for that express purpose.
In August, 1998, after continued communication with complainant as to how
to resolve her accommodation request, the agency forwarded her request,
as well as medical documentation regarding her condition, to a physician
at Federal Occupational Health. This physician secured several indoor
air quality reports on complainant's workplace for the period from 1991
through 1997, and from that information concluded that the air quality
reports did not demonstrate any sustained air quality problems in the
workplace. The physician stated that he had no specific suggestions for
improving the air quality in complainant's immediate work area, other
than recommending �meticulous� cleaning and maintenance of her work area,
and eliminating potential dust collectors such as drapes and carpeting.
Complainant filed her formal complaint of discrimination on August 15,
1998. At the conclusion of the agency's investigation into her complaint,
complainant was informed of her right to request a hearing before an EEOC
Administrative Judge or, alternatively, to receive a final decision by
the agency. Complainant requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant had failed to establish
her claims of age and disability discrimination. The FAD first addressed
complainant's age discrimination claim, finding that complainant made
no mention of age-based harassment in her various communications with
the agency during the EEO process. It also found that she failed to
demonstrate that the alleged harassment or accommodation denial was
based upon age. The agency concluded that complainant failed to raise
an inference of age discrimination.
The agency then addressed complainant's disability claims, finding first
that, as to her asthma condition, she had established that she was an
individual with a disability. The agency then found, however, that she
had not established that the complained-of agency actions constituted
harassment. In so finding, the agency noted that complainant claimed
that management had made comments that she should lose weight to help
her asthmatic condition; that management had instructed her to manage her
employee leave differently after a lengthy illness, interfering with her
ability to work only four days per week; and that management contested
her worker's compensation claim related to her asthmatic condition,
delayed her application for disability retirement, denied her request to
work from home, and had an investigation of her initiated by the Office
of the Inspector General. The agency found that the record evidence
demonstrated that management had in fact worked with complainant to make
her work environment comfortable and alleviate her asthma throughout
her employment at the agency. The agency further found that these
efforts included, as admitted by complainant in her EEO documentation,
providing her with a temporary work space, allowing her to select a
cubicle by a window, generously approving sick time, and providing her
with a �flexitime� work schedule. From this and other evidence in the
record, the agency concluded that complainant had not demonstrated that
she had been subjected to disability harassment.
As for complainant's claim that the agency failed to provide her with the
reasonable accommodation of allowing her to work from home, the agency
noted the volume of evidence which indicated that complainant's workplace
had a detrimental effect upon her asthma condition. The agency found,
however, that the essential functions of her position did not permit
the sought accommodation. In so finding, the agency noted that agency
policy precluded Claims Examiners from working at home, as the position
is not amenable to being performed outside of the office's location.
The agency stated that Claims Examiners may at any given moment need
access to any one of several hundred active cases, and it is not feasible
to take these cases out of the office. The agency further noted that no
other Claims Examiners' requests to work from home had been approved.
The agency also found that, while complainant's work at home request
had been denied, it had previously provided other accommodations for her
medical condition, and was willing to again provide similar accommodation.
From this, the agency concluded that it had not denied complainant a
reasonable accommodation for her medical condition.
This appeal followed, in which neither party has presented argument.
ANALYSIS AND FINDINGS
Standard of Review
As this is an appeal from a FAD issued without a hearing, pursuant to
29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a).
Age Discrimination
Under the ADEA, it is �unlawful for an employer . . . to fail or refuse
to hire or to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's age.� 29
U.S.C. � 623(a)(1). When a complainant alleges that he or she has been
disparately treated by the employing agency as a result of unlawful
age discrimination, �liability depends on whether the protected trait
(under the ADEA, age) actually motivated the employer's decision.�
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)
(citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)).
�That is, [complainant's] age must have actually played a role in the
employer's decisionmaking process and had a determinative influence
on the outcome.� Id. Our review of the record indicates that the
agency properly determined that complainant failed to present any
evidence from which one could conclude that age actually played a role
in the responsible agency officials' decisionmaking process and had a
determinative influence on the outcome in the contested agency actions.
Accordingly, we agree that complainant failed to prove that she had been
subjected to unlawful age discrimination.
Disability Discrimination
Assuming for the purposes of this appeal that complainant has established
that she is an individual with a disability as defined under the
Rehabilitation Act, we conclude that complainant has still failed to
show that she was subjected to unlawful disability discrimination as to
either of the complained-of agency actions.
Examining first complainant's claim that she was subjected to unlawful
disability-based harassment with the goal of forcing her to take
disability retirement, we note the operative facts behind this claim.
Complainant contends that in December, 1996, she was confronted by her
Regional Director (RD) and her supervisor (S1), who both told her that if
she did not lose weight so that her breathing could improve, she would
be forced out of her position on disability retirement. RD stated in
his EEO affidavit that complainant often initiated discussions in the
workplace, with him and S1, on the subject of her health and weight,
including the impact of her weight upon her asthma. RD claims that he
and S1 agreed with complainant's assessment that her health needed to be
brought under better control, and he acknowledged that on one occasion
he and S1 discussed with her the option of disability retirement in the
event she could not make improvements in her health. He denied that he
or S1 ever threatened to force her out on disability retirement.
S1 stated in her EEO affidavit that after complainant developed a problem
with her hip and foot, she was having great difficulty moving about
the office. S1 said that she then asked to meet with RD and complainant
to discuss complainant's worsening condition and how complainant should
take steps to reverse that condition. S1 claims to have told complainant
that she (S1) was concerned that she would be responsible if �something
terrible� happened to complainant in the office. S1 acknowledged that
she and RD discussed the issue of disability retirement with complainant.
S1 characterized the meeting as �a counseling session for the purpose
of forcing [complainant] to face the reality of her worsening condition
and to encourage her to take care of herself.� S1 also offered in her
affidavit that complainant was repeatedly told that the purpose of the
meeting was to help her, that her contributions to the office were valued,
and that she and RD wanted those contributions to continue.
Based upon the evidence of record, we conclude that complainant has not
established that she was subjected to disability-based harassment designed
to force her to take disability retirement. To establish a prima facie
case of disability-based harassment, complainant must prove: (1) that she
is a member of a statutorily protected class; (2) that she was subjected
to unwelcome harassment; (3) that the harassment complained of was based
on her disability or disabilities; (4) the harassment affected a term,
condition, or privilege of employment; and (5) that the employer knew or
should have known of the harassment and failed to take prompt remedial
action. Flowers v. Southern Reg'l Med. Servs., Inc., 247 F.3d 229, 235-36
(2001). In determining whether a working environment is hostile, factors
to consider include the frequency of the alleged discriminatory conduct,
its severity, whether it is physically threatening or humiliating,
or a mere offensive utterance, and whether it unreasonably interferes
with an employee's work performance. Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993); EEOC Enforcement Guidance on Harris v. Forklift
Systems, Inc., No. 915.002, at 3, 6 (Mar. 8, 1994).
While complainant's account of the December 1996 meeting differs from
the descriptions offered by RD and S1, she has not presented sufficient
evidence to establish her version of the meeting at issue, or that the
actions of RD and S1 were sufficiently severe or pervasive to alter
her employment and create an abusive working environment. See Harris,
510 U.S. at 21. Accordingly, we find that she has not proven by a
preponderance of the evidence that she had been subjected to harassment
of such a nature that �a reasonable person would find hostile or abusive.�
Harris, 510 U.S. at 21-22.
We next turn to complainant's claim that the agency failed to allow her
to work at home as a reasonable accommodation for her condition.<1> The
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 the accommodation would cause an undue hardship
upon its operations. 29 C.F.R. � 1630.9(a); Enforcement Guidance on
Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act, EEOC Notice No. 915.002, at 2-7 (Mar. 1, 1999).
�Reasonable accommodation� is defined in part by our regulations as
�[m]odifications or adjustments to the work environment, or to the manner
or circumstances under which the position held or desired is customarily
performed, that enable a qualified individual with a disability to perform
the essential functions of that position.� 29 C.F.R. � 1630.2(o)(ii).
The record shows that complainant requested a specific accommodation
for her condition�that she be allowed to perform her job duties at home.
The agency denied this request, and has presented sufficient, unchallenged
evidence to show that this accommodation would preclude complainant
from performing the essential functions of her Claims Examiner position.
The agency presented evidence that Claims Examiners �at any given moment
need access to any of several hundred active cases� and that it is not
feasible to have these cases out of the office, as other office staff
also need access to these cases. As the evidence shows that the requested
accommodation of permitting complainant to work from home would not allow
her to perform the essential functions of her position, we conclude
that the requested accommodation is not a reasonable accommodation.
See 29 C.F.R. � 1630.2(o)(ii).
Conclusion
As stated above, our examination of the record on appeal shows
that complainant has not proven that she was unlawfully subjected
to disability-based harassment, or that she was unlawfully denied a
reasonable accommodation for her medical condition which would allow
her to perform the essential functions of her position. Therefore,
it is the decision of the Commission to AFFIRM the FAD finding that
complainant failed to prove her discrimination claims.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (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
July 10, 2002
Date
1 It is unclear from the record whether complainant and the agency
have come to terms on another form of reasonable accommodation for her
medical condition. The evidence indicates that, after the agency denied
complainant's request to work at home, she offered to return to the
workplace if the dust and mold was removed. The record also reflects,
as stated above, that the agency has offered to clean her workstation
and/or otherwise accommodate her condition within the office. There is
no indication, however, as to whether complainant accepted this offer,
or if the agency honored the offer if it was accepted. Accordingly, we
limit our review on appeal to the alleged unlawful denial of reasonable
accommodation as defined in the complaint and FAD�whether complainant
was subjected to unlawful discrimination when the agency denied her the
requested reasonable accommodation of working from home.