01973478
12-19-2000
Wanda J. Michaels, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Wanda J. Michaels v. Veterans Affairs
01973478
December 19, 2000
.
Wanda J. Michaels,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01973478
Agency No. 96-0027
Hearing No. 310-96-5533X
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her equal employment opportunity (EEO) complaint
of unlawful employment discrimination on the bases of sex (female),
reprisal (prior EEO activity), and disability (chemical sensitivity),
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq.; and the Rehabilitation Act of 1973,<1> as amended,
29 U.S.C. � 791, et seq.<2> Complainant alleges she was discriminated
against when: (1) she was denied a reasonable accommodation for her
disability; (2) she was denied representation at the Credentialing
and Privileging Subcommittee of the Clinical Executive Board (Board);
(3) her supervisor's statement on a form relating to complainant's
application for disability retirement, dated October 5, 1995, was an
attempt to discredit her because of her EEO activity; and (4) she was
separated due to her disability by a letter dated August 30, 1995,
as the culmination of events following a traumatic injury on October
31, 1994. The appeal is accepted pursuant to 29 C.F.R. � 1614.405).
For the following reasons, the agency's decision is AFFIRMED.
BACKGROUND
The record reveals that complainant, formerly a Staff Physician at the
agency's Medical Center, Waco, Texas (�facility�), had from the beginning
of her employment at the facility complained that the chemicals used
within the facility caused her problems. In October 1994, while out
on leave for three weeks, complainant sought treatment from a physician
who specialized in environmental health issues. While complainant was
on leave, the facility installed new carpeting. Upon returning from
leave on October 31, 1994, complainant stated that she experienced an
immediate hypersensitivity reaction to the new carpeting. She left work
and subsequently filed a worker's compensation claim due to the exposure
to the carpeting. On November 21, 1994, complainant's physician wrote
a letter to the agency explaining that he had diagnosed complainant with
chemical sensitivity which imposes substantial environmental restrictions.
Specifically, the physician stated complainant experienced severe and
disabling hypersensitivity reaction when exposed to customary chemicals
and other environmental agents found in almost every work setting, such
as carpeting, particle board, cleaning chemicals, perfumes, deodorizers,
dust, dust mites, photocopier chemicals, vinyl and upholstered furniture,
foam padding, cigarette smoke, pesticides, carbon-less paper, and
unfiltered air and water.<3> In view of complainant's sensitivities,
the physician recommended that the agency provide accommodations which
would eliminate the use of the products causing complainant's reaction.
In a letter dated December 20, 1994, the facility's Chief of Human
Resources Management (�Chief�) wrote to complainant that the facility
was unable to offer the accommodations recommended by her physician
because they would cause an undue hardship on the agency due to the
extensive construction and remodeling expense, interrupt normal work
operations, and interfere with the delivery of patient care. The Chief
further stated that the facility was prepared to provide complainant
a reasonably chemical-free working environment within the limitations
that do not disrupt, delay or stop the delivery of patient care services.
On May 10, 1995, complainant's physician submitted a report to the agency
stating that complainant's October 31, 1994 injury had improved to the
point that she could return to her duties at the facility, so long as the
necessary accommodations were provided. While complainant's physician
cautioned against even casual exposure to these products, he stated
that the agency should provide complainant with protective respiratory
equipment in the event of an unavoidable intermittent exposure.
On July 31, 1995, the facility's Physical Standards Board (�Board�)
convened to determine if the facility could accommodate complainant's
impairment. The Board determined that the products and chemical in
dispute were used throughout the facility to ensure cleanliness and
sanitary conditions, and that the facility could not control the use of
personal care products by patients or their visitors. Thus, the Board
determined that it was impossible to provide the requested accommodations.
As a result of the Board's determination, the agency, on August 30, 1995,
informed complainant that she was being separated due to her inability
to meet the requirements of her position.
Believing the agency had committed unlawful discrimination, complainant
filed a formal EEO complaint on November 18, 1995, making allegations
referenced above. At the conclusion of the investigation, complainant
requested a hearing before an Equal Employment Opportunity Commission
(EEOC) Administrative Judge (AJ). Following a hearing, the AJ issued
a Recommended Decision (RD) finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of disability discrimination because, even assuming that her chemical
sensitivity constituted a physical impairment which substantially limited
the major life activity of breathing, she did not establish that she was
a qualified individual with a disability as defined by the Rehabilitation
Act, because her numerous restrictions precluded her from performing
the essential functions of a Staff Physician with or without reasonable
accommodation. The AJ noted that the requested accommodations �would
have required massive and potentially unworkable conditions, requiring
an undue hardship.� In reaching this conclusion, the AJ found that
because the health and safety of its patients were of primary concern
to the agency, it could not remove some of the chemicals listed by
complainant's physician, because these chemicals were necessary in a
hospital setting for cleanliness and sanitary conditions. In addition,
the AJ found that the agency had established that it would be impossible
to monitor the perfumes, shampoos, deodorants and other personal care
items used by patients and their visitors. The AJ also found, concerning
complainant's inquiries about transferring to other clinics, that she
failed to demonstrate that there were any vacancies at those clinics,
and further, that she failed to demonstrate that these clinics could
accommodate her restrictions.
The AJ also concluded that complainant failed to establish a prima facie
case of sex discrimination because she failed to demonstrate that male
employees were permitted representation before the Board, or that male
employees with similar restrictions were accommodated in their positions.
Further, the AJ found that complainant failed to establish a prima facie
case of reprisal regarding issue (3) because she failed to prove that
her supervisor's statements on her disability form were motivated by
retaliatory animus, as her supervisor stated that he was unaware of her
EEO activity until well after he prepared the statement.
The AJ then concluded that even if complainant established prima facie
cases, the agency articulated legitimate, nondiscriminatory reasons for
its actions, namely, that: (1) hospital management officials attempted,
for more than six months, to accommodate complainant's restrictions;
(2) they identified an office without carpeting which they could make
chemical free, but that even these accommodations were insufficient in
light of the broad restrictions which rendered complainant unable to
enter any of the many buildings at the Medical Center to see a patient
while on call; (3) the Human Resources Manager testified that employees
did not attend, or have representation, at Board meetings; and (4)
complainant's supervisor testified that he completed the supervisor's
statement on the disability form based on his experience supervising her,
and not based on retaliatory animus. The AJ concluded that complainant
failed to demonstrate that the agency's reasons were more likely than
not motivated by discriminatory or retaliatory animus. The agency's
FAD adopted the AJ's RD. Complainant submitted no new arguments on
appeal, and the agency argued that we should dismiss the appeal because
complainant and her husband, who served as her EEO representative, both
filed civil actions in the United States District Court for the Southern
District of Texas, alleging, among other things, violations of their civil
rights under part 20 of the Code of Federal Regulations (C.F.R.).<4>
ANALYSIS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge will be upheld if supported by substantial
evidence in the record. Substantial evidence is defined as �such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.� Universal Camera Corp. v. National
Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted).
A finding that discriminatory intent did exist is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). After a
careful review of the record, the Commission finds that the AJ's findings
are supported by substantial evidence.<5> In reaching this conclusion,
we note that while the agency stated that it may have been able to make
complainant's office chemical-free, it could not prevent exposure to the
chemicals when complainant was required to provide patient care outside
of her office or when she was required to be in one of the many buildings
of the facility.<6> The agency also stated that it could not reasonably
prevent complainant's exposure to automobile exhaust or tobacco smoke
while in route to the other buildings within the facility nor could it
monitor the use of perfumes, shampoos and other personal care items
by patients and their visitors. As a result, we discern no basis to
disturb the AJ's findings, which were based on a detailed assessment of
the record. Therefore, after a careful review of the record, including
arguments and evidence not specifically addressed in this decision,
we AFFIRM the FAD which adopted the AJ's RD.
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 (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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
December 19, 2000
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 On 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.
3 In a later letter, complainant's physician specifically identified the
following offending products: 1. Wexcide and other phenol containing
products; 2. New carpet, paint, wallpaper, adhesives, and other
renovation products; 3. Air-Chem deodorizers and other deodorant
products with a petrochemical base; 4. Carbon-less paper; 5. Tobacco
smoke; 6. Formaldehyde; 7. Chlorine; 8. Ammonia; 9. Perfumes and other
scented personal care products with petrochemical base; 10. Automobile
and diesel exhaust fumes; 11. Copy machine fumes; and 12. Pesticides.
4 The Commission notes that the above-referenced civil actions do not
specifically allege violations of either Title VII or the Rehabilitation
Act, and that 29 C.F.R. � 1614, not 20 C.F.R., contain the regulations
applicable to the processing of federal discrimination complaints.
As such, we decline to dismiss the appeal.
5 We take this time to clarify the reassignment issue. As to possible
reassignment, the AJ found that complainant failed to demonstrate that
there were any vacancies at the other clinical facilities which she had
identified. However, we note that the reasonable accommodation process
is an interactive process which requires both the agency and complainant
to work together in finding the appropriate accommodation. See The
Interpretive Guidance on Title I of the Americans with Disabilities
Act, Appendix B to 29 C.F.R. Part 1630, � 1630.9. In this case, where
complainant requested reassignment as a possible accommodation, it is
the agency's burden, not complainant's, to determine if the reassignment
option is appropriate and available. However, in light of the AJ's
ultimate finding that the agency could not reasonably accommodate
complainant's impairment in light of a medical facility's need to ensure
cleanliness and sanitization and inability to control the use of personal
care products by patients and visitors, we find that this misstatement
does not affect the outcome of this matter.
6 Most of the chemicals identified are widely used for cleaning and
antiseptic purposes. Complainant's own physician explained that the
chemicals in question were found in almost every work setting and that
even trace amounts could cause severe illness.