0120113039
06-20-2014
Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120113039
Hearing No. 531-2009-00241X
Agency No. OCO20080207SSA
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's May 20, 2011, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Agency's final decision (FAD) is AFFIRMED.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Legal Administrative Specialist, GS-09 at the Agency's Office of Disability Operations facility in Washington, DC. On March 18, 2008, Complainant filed a formal complaint alleging that the Agency discriminated against her on the basis of disability (severe latex allergy) when her request, in December 2007, to ban latex gloves and balloons in order to create a latex-free environment for the entire Security West Building as a reasonable accommodation was not resolved by management.
Complainant was born with spina bifida and has had a severe latex allergy since the early 1990s. She learned of the allergy when she experienced an adverse reaction (drop in blood pressure; hives) in an operating room. She indicates that she suffers respiratory distress (i.e., she cannot breathe and starts to turn blue) anytime she comes in close proximity with products containing latex proteins, primarily gloves and balloons. She also maintains that she experiences symptoms merely from breathing the proteins. To treat these symptoms she uses an inhaler and an epi-pen.
After one of these episodes in the operating room, where she developed shortness of breath and hives, Complainant's physician indicated that he believed that she had developed sensitivity to latex as a result of having multiple surgeries due to her spina bifida.1 Complainant therefore alerted management to her condition. Management banned the use of latex gloves by its employees in the Security West Building the day after Complainant made her accommodation request. Complainant's allegation that she was denied a reasonable accommodation therefore is based on management's failure to also eliminate all latex balloons from the Security West Building. Complainant maintains that she gave the Agency a copy of her operative records from her Neurologist but was told that additional medical documentation was needed. She maintains that she attempted on numerous occasions to talk to the Agency medical director and explain her condition but he refused to talk to her. She maintains that she spoke with the Associate Commissioner who told her that the decision was up to the Agency's medical director but the Associate Commissioner indicated that she thought that a ban on balloons would be an infringement of other workers rights. As a result, Complainant filed the instant complaint.2
Following an investigation by the Agency, Complainant requested a hearing before an EEOC Administrative Judge (AJ). As a sanction for Complainant's failure to comply with discovery orders, the AJ remanded the case to the Agency for a FAD. The FAD found that Complainant failed to show that she was denied a reasonable accommodation. The Agency argued that despite numerous attempts to get Complainant to provide updated medical documentation she failed to provide the information that was necessary to determine whether she was an individual with a disability (i.e. whether she actually had an allergy to latex).
Notwithstanding, the Agency asserts that Complainant was given a reasonable accommodation based on the information she provided from her physician. Specifically, the Agency banned latex use in the building and asked that latex balloons not be used on the floor where she worked. In April 2007, management stopped the ordering and delivery of latex gloves to the building. Further, employees where Complainant worked were asked to refrain from bringing any latex products into the work area, the custodial staff in Complainant's building were not allowed to purchase or use latex gloves, employees were also asked not to use or purchase latex gloves, management stopped employees from ordering latex gloves for special events and asked employees in Complainant's building to dispose of any remaining latex gloves. The Agency maintained that Complainant failed to show that she was not provided an accommodation and failed to show that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant, among other things, maintains that she has an allergy that is life threatening and therefore making the campus area latex free should be simple, because it should not be a problem to ban latex balloons which are not part of the work environment.
In response, the Agency maintains that Complainant failed to provide the necessary medical documentation even after explicitly being told what was needed. The Agency explains that as a result of her failure to provide the documentation it was unable to determine whether she was an individual with a disability. Notwithstanding, the Agency maintains that it provided Complainant with a reasonable accommodation by banning latex gloves, and banning latex balloons on the floor where she worked. The Agency asserts that Complainant failed to show that its articulated legitimate, nondiscriminatory reasons were pretext for discrimination.
ANALYSIS AND FINDINGS
The Commission's regulations require an Agency to make reasonable accommodation for the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o), 1630.2(p). A qualified individual with a disability is an "individual with a disability" who satisfies the requisite skill, experience, education and other job related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. � 1630.2(m).
Assuming, for purposes of this decision, that Complainant established that she is a qualified individual with a disability as defined by our regulations, we find that she has not established that she was denied a reasonable accommodation here. Specifically, we find that it is undisputed that the Agency provided Complainant with accommodations for her medical condition by banning latex glove use in the building and asking that latex balloons not be used on the floor where she worked. In April 2007, management stopped the ordering and delivery of latex gloves to the building. Further, employees where Complainant worked were asked to refrain from bringing any latex products into the work area, the custodial staff in Complainant's building were not allowed to purchase or use latex gloves, employees were asked not to use or purchase latex gloves, management stopped employees from ordering latex gloves for special events and asked employees in Complainant's building to dispose of any remaining latex gloves.
While it is clear that the accommodation that Complainant sought, i.e., a 100% latex free environment, was not provided, she has not shown that the accommodations which were provided to her were not effective.3 Complainant has presented no persuasive evidence that after the Agency implemented the above changes to the workplace that she had latex related medical problems or that there remained a high likelihood that she might have such problems. Accordingly, although Complainant preferred a 100% latex free environment, she has not shown that what was provided to her was not an effective accommodation. Therefore, we determine that Complainant has not established that the Agency's action constituted a violation of the Rehabilitation Act. After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
__6/20/14________________
Date
1 In a letter dated April 3, 2007, Complainant's physician indicated, among other things, that latex can be transferred through the air or rubbed off from balloons. He advised that Complainant's workplace be made as safe as possible in order to prevent a latex-mediated emergency.
2 According to the record, Complainant initially worked in the Security West Building in 2002. At that time, management banned the use of both latex gloves and balloons. Complainant left to work at another location. When she returned in 2006, employees were again using latex products.
3 The Commission's position is that if more than one accommodation is effective, "the preference of the individual with a disability should be given primary consideration; however, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations." 29 C.F.R. � 1630.9; see also EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, Question 9 (revised October 17, 2002); Polen v. Dep't of Defense, EEOC Appeal No. 01970984 (Jan. 16, 2001). Thus, while Complainant may be entitled to an effective reasonable accommodation under the Rehabilitation Act, she is not entitled to the accommodation of her choice.
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0120113039
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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