01a04770
03-08-2001
Betty Ann Gamez, Complainant, v. William A. Halter, Acting Commissioner, Social Security Administration, Agency.
Betty Ann Gamez v. Social Security Administration
01A04770
March 8, 2001
.
Betty Ann Gamez,
Complainant,
v.
William A. Halter,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A04770
Agency No. 99-0066
Hearing No. 110-A0-8043X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning her equal employment opportunity (EEO) 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.<1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleges she was discriminated against on the basis of
disability (chronic urticaria, dermatographism and formaldehyde allergy)
when the agency denied her a reasonable accommodation by refusing to
allow her to work from home and by refusing to assign her to a work
area where all the restrictions delineated by her physician were met.
For the following reasons, the Commission reverses the agency's final
order and remands the complaint for an evidentiary hearing.
The record reveals that complainant, an EEO Specialist at an agency
facility in Atlanta, Georgia, filed a formal EEO complaint on November
14, 1998, alleging that the agency had discriminated against her as
referenced above. At the conclusion of the investigation, complainant
was provided a copy of the investigative report and requested a hearing
before an EEOC Administrative Judge. The Administrative Judge issued a
decision without a hearing, finding no discrimination, which the agency
adopted in its final order.
BACKGROUND
Complainant worked for the agency for eighteen years, the last eight
of which as an EEO Specialist, before taking disability retirement
in December 1998. In August 1997, her office was relocated to the
Atlanta Federal Center. Complainant began experiencing a physical
reaction to the new office space. The reaction included dryness and
itching of skin, redness of her face, neck, trunk and extremities and
painful irritation to her eyes and eyelids. In October 1997, after
her condition worsened following the office's receipt of new furniture,
she sought medical attention from her family physician, an allergist,
and finally, a dermatologist, who determined that she had developed a
dermatitis associated with exposure to some irritant in the workplace.
When removed from the workplace, the rash would improve dramatically but
would increase within one hour of re-exposure. Complainant also reported
that the irritation to her eyes and eyelids was causing her to have
difficulty with her vision, that she experienced burning sensations in her
chest and throat, and that she had the taste of chemicals in her mouth.
During this time, complainant made oral requests to her first line
supervisor, the Manager of Civil Rights and Equal Opportunity, that she
be allowed to work from home. Complainant attested that her supervisor's
response both times was a "very sarcastic no." Although complainant did
not request it and there was no medical recommendation in support of it,
the agency undertook to transfer complainant to different work sites in
an effort to find an environment which did not aggravate her condition.
In December 1998, complainant's supervisor arranged for her to go on
a detail to the Center for Human Resources, located in a different
area of the same building, because it was thought that the work space
in that office was more "open." The agency also provided her with an
air purifier. Complainant experienced the same physical problems in
the more "open" office. In January 1998, the agency assigned her to
the Covington, Georgia Branch Office which had been repainted and had
new carpeting installed four months prior to complainant's assignment.
After a week in Covington, complainant was tremendously inflamed around
her face, eyelids and lips, and her condition was visible to management
and staff. In February 1998, complainant was assigned to the Tucker,
Georgia District Office wherein she was in close contact with the dust
from old files and chemicals from printers and copiers. Within a week,
complainant's skin condition worsened even further. She remained at
the Tucker assignment for approximately two weeks and then went on
sick leave. Complainant, who had been placed on medication, remained
out of work until March 30, 1998, when her dermatologist returned her to
work in order to assess the medication's efficacy. Complainant returned
to the detail in the Center for Human Resources and within four days,
experienced redness on the neck, swelling, dry lips and the sensation
that her eyelids were burned. She resumed sick leave until May 19,
1998 when she was told to report to the Atlanta Downtown District Office
which had not been renovated in eight years. The office was known to
be poorly ventilated and infested with fleas. Here she also experienced
problems with swelling and reddening in addition to difficulty breathing.
In May 1998, complainant filled out agency Form 501 requesting that she
be permitted to work from home and provided a letter from her physician
stating that her symptoms could not be successfully treated if she
remained continually exposed to the office environment. The agency
asked for additional medical documentation. Complainant provided another
letter from her physician, wherein he reiterated his belief that allowing
complainant to work from home would be the most effective accommodation
of her problem and provided the following alternative recommendations:
(1) place complainant in a work area that is a well ventilated space
free of pollutants such as pesticides, toxic and fragrant-laden cleaning
products, paint fumes and gases from carpets;
(2) select the least toxic/allergenic building furnishings and supplies;
(3) select the least toxic integrated pest management using no sprayed
or volatile pesticides in and around the work area;
(4) notification prior to painting, renovating or applying pesticides
with provisions for alternative work arrangements; and
(5) educate management and employees as to the nature of the disability.
On July 8, 1998, management denied complainant's request to work
from home. In so doing, the Acting Director of the Center for Human
Resources stated that the agency did not have approval for an ongoing
flexible workplace program and that it did not appear that "the full
range of responsibilities of an EEO Specialist could be carried out from
a home workplace environment because of the need to access documents,
make copies etc..." In his affidavit, the Acting Director stated that
complainant's position required her to provide face-to-face advice, review
confidential files, and answer the general incoming line and other duties.
Complainant's supervisor also submitted an affidavit stating that he
denied her request because "her position was not suitable for work
from home due to it's [sic] nature" and that she could not "perform the
essential functions of her position from home." He further stated that
it would be a hardship to grant complainant the opportunity to work from
home because the staff would be "tax" [sic] without her since there were
four EEO Specialists to serve 9,000 employees.<2>
Complainant contended that the agency transferred her from place to place
without making any effort to ascertain whether the different work sites
would have been suitable and that management, despite its protestations
to the contrary, never implemented any of her physician's alternative
recommendations. More significantly, complainant argued that she should
have been allowed to work from home. Complainant stated that most of
her contact with management and employees throughout the region was done
by telephone; that she was bound by a confidentiality standard both on
and off the work site and that she could keep confidential EEO files
under lock and key in her home; and that with the use of a computer,
she could perform the same duties as she did at the office.
The Administrative Judge found that complainant was not a qualified
individual with a disability within the meaning of the Rehabilitation Act,
specifically concluding that while complainant was substantially limited
in the major life activity of working, she could not perform the essential
functions of her position with or without a reasonable accommodation.
In reaching this conclusion, the Administrative Judge found that
complainant could not work from home because her position required her
to "interface" with the agency's employees. The Administrative Judge
further found that it would have been "unreasonable" for the agency to
provide complainant with office space consistent with her physician's
recommendations as evidenced by the fact that she was unable to work in
any of the five offices to which the agency had assigned her, including
an older building which had not been recently renovated.
On appeal, complainant argues that summary judgment was inappropriate
since there was a genuine issue as to whether she could have performed
the essential functions of her position from home and as to whether
providing the alternative accommodations recommended by her physician
would have been an undue hardship for the agency. The agency requests
that we affirm its final order.
ANALYSIS AND FINDINGS
The Commission's regulations allow an Administrative Judge to issue a
decision without a hearing when he or she finds that there is no genuine
issue of material fact. This regulation is patterned after the summary
judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The United States Supreme Court has stated that summary
judgment is appropriate where the trier of fact determines that, given
applicable substantive law, no genuine issue of material fact exists.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In determining
whether to grant summary judgment, the trier of fact's function is not
to weigh the evidence and render a determination as to the truth of
the matter, but only to determine whether there exists a genuine factual
dispute. Id. at 248-49. The courts have been clear that summary judgment
is not to be used as a "trial by affidavit." Redmand v. Warrener, 516
F.2d 766, 768 (1st Cir. 1975). The Commission has noted that when a
party submits an affidavit and credibility is at issue, "there is a need
for strident cross-examination and summary judgment on such evidence is
improper." Pedersen v. Department of Justice, EEOC Request No. 05940339
(February 24, 1995). The hearing process is intended to be an extension
of the investigative process, designed to �ensure that the parties have a
fair and reasonable opportunity to explain and supplement the record and
to examine and cross-examine witnesses.� See EEOC Management Directive
110, November 9, 1999, 6-1; see also 29 C.F.R. �� 1614.109(d) and (e).
"Truncation of this process, while material facts are still in dispute
and the credibility of witnesses is still ripe for challenge, improperly
deprives complainant of a full and fair investigation of her claims."
Mi S. Bang v. United States Postal Service, EEOC Appeal No. 01961575
(March 26, 1998).
Under the Commission's regulations, an 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
accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o);
(p). A "qualified" individual with a disability is one who satisfies
the requirements for the employment position she holds or desires and
can perform the essential functions of that position with or without
reasonable accommodation. The inquiry as to whether an individual with a
disability is "qualified" is not limited to whether the employee, with or
without reasonable accommodation, can perform the essential functions of
the position actually held by the employee, but also includes positions
that the employee could have held as a result of job restructuring or
reassignment. See Van Horn v. United States Postal Service, EEOC Appeal
No. 01960159 (October 23, 1998). When an employee cannot perform the
essential functions of her current position because of a disability, and
no accommodation is possible in that position, reasonable accommodation
includes reassignment to another position. Ignacio v. United States
Postal Service, EEOC Petition No. 03840005 (September 4, 1984), aff'd,
30 M.S.P.R. 471 (Spec. Pan. February 7, 1986). While the agency is not
obligated to create a new position for complainant, it must make a good
faith effort to locate a vacant, funded position for which complainant
was qualified. Therefore, "[o]nly after determining that reassignment
to a vacant position was not possible or would result in an undue
hardship, would the Rehabilitation Act permit the agency to conclude
that [a complainant] is not a qualified individual with a disability."
Kitaura v. United States Postal Service, EEOC Petition No. 03980089
(March 11, 1999).
Upon review, we find that, assuming arguendo complainant is an individual
with a disability within the meaning of the Rehabilitation Act,
there is a genuine issue of material fact as to whether complainant
could have performed the essential functions of her EEO Specialist
position with the reasonable accommodation of working from home.<3>
Complainant, who had been working as an EEO specialist for eight years
and was well acquainted with her job duties and responsibilities, gave
specific reasons as to why and how she could have successfully worked
from home. Both her supervisor and the Acting Director provided brief,
general statements regarding why working from home was not an option.
The Administrative Judge's determination that complainant could not work
from home because she had to "interface" with other agency employees was
reached by weighing the evidence in the record and making credibility
determinations based on affidavit testimony. This is precisely the type
of evidence that is appropriate for cross-examination, elaboration and
credibility determinations. Accordingly, judgment as a matter of law
for the agency should not have been granted.
On remand, we direct the agency's attention to the fact that requests
for reasonable accommodation do not have to be in writing and need not
make mention of the Rehabilitation Act or use the phrase "reasonable
accommodation." See EEOC Enforcement Guidance on Reasonable Accommodation
and Undue Hardship Under the Americans with Disabilities Act, No. 915.002,
Questions 1 and 3 (March 1, 1999). We also note that an employer must
modify its policy concerning where work is performed if such a change
is needed as a reasonable accommodation, but only if the accommodation
would be effective and would not cause an undue hardship. Id. at Question
33.<4>
After a thorough review of the record, the Commission reverses the
agency's final order and remands this complaint to the Atlanta District
Office in accordance with this decision and the ORDER below.
ORDER
The complaint is remanded to the Atlanta District Office for scheduling
of a hearing in an expeditious manner. The agency is directed to submit
a copy of the complaint file to the EEOC Hearings Unit within fifteen
(15) calendar days of the date this decision becomes final. The agency
shall provide written notification to the Compliance Officer at the
address set forth below that the complaint file has been transmitted
to the Hearings Unit. Thereafter, the Administrative Judge shall, after
ensuring that the development of the record is complete, issue a decision
on the complaint in accordance with 29 C.F.R. � 1614.109, and the agency
shall issue a final action in accordance with 29 C.F.R. � 1614.110.
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
March 8, 2001
__________________
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 In addition to complainant's position description, there is an undated,
untitled document in the record purporting to describe the duties of
an EEO Specialist and stating why such duties could not be performed
from home. The duties described include searching confidential cases
files in response to status inquiries, obtaining copies of documents and
promotion packages kept in a room containing official personnel files,
observing promotion panels, attending job fairs, providing training,
planning activities and conferences, working as key-workers for the
Savings Bond Campaign and the Combined Federal Campaign, and attending
meetings with top regional officials. The Administrative Judge's
decision did not reference this document. It is unclear whether this
document was submitted in opposition to complainant's appeal and, if so,
whether complainant was served with a copy of it pursuant to 29 C.F.R. �
1614.403(f).
3 The Commission finds that the Administrative Judge failed to apply the
correct legal standard for determining whether complainant is a qualified
individual with a disability. Initially, the Administrative Judge should
have considered whether complainant was substantially limited in any other
major life activity before considering the major life activity of working.
29 C.F.R. pt. 1630, App. � 1630.2(j). Second, assuming arguendo that
complainant was an individual with a disability, it is the agency who
bears the burden of proving that the reasonable accommodations requested
by complainant would have resulted in undue hardship. Finally, assuming
arguendo that complainant could not perform the essential functions of
the EEO Specialist position with or without a reasonable accommodation,
the Administrative Judge did not consider the issue of reassignment and
the agency's burden of proof thereunder.
4 For further guidance regarding reasonable accommodation, the parties
may wish to review the following Commission guidance: Preemployment
Disability-Related Questions and Medical Examinations (October 10,
1995); The Americans with Disabilities Act and Psychiatric Disabilities
(March 25, 1997); Disability-Related Inquiries and Medical Examinations
Of Employees Under the Americans with Disabilities Act (July 27, 2000);
and EEOC Procedures for Providing Reasonable Accommodation for Individuals
with Disabilities, Order No. 560.003 (February 7, 2001).