0120122961
04-10-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120122961
Hearing No. 570-2011-00751X
Agency No. 2004-0688-2010104159
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's June 15, 2012, final order 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 order which fully implemented the EEOC Administrative Judge's (AJ), decision finding no discrimination is AFFIRMED.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Triage Nurse Case Manager at the Agency's Trauma Services, Nursing Service in Washington, D.C. On November 5, 2010, Complainant filed a formal complaint alleging that the Agency discriminated against her on the basis of disability (prior lung cancer, asthmatic bronchitis, respiratory problems) when the Agency refused to reduce the temperature of her workplace to 68 degrees.
Following an investigation by the Agency, Complainant requested a hearing before an AJ. Prior to the hearing, both Complainant and the Agency filed motions for summary judgment. Complainant argued that the Agency failed to accommodate her breathing disorders when it would not agree to keep her entire work area at a temperature of 68 degrees. In the alternative, Complainant requested that she be allowed to telework or be provided an air conditioning unit. The Agency indicated that telework was not a viable option for Complainant because her position required her to actively interact with patients. The Agency explained that an air conditioning unit could not be used due to the threat of mold and mildew which posed a risk to patient health and because she worked with Mental health patients and a window unit posed a security risk. Further, the Agency explained that it was unable to keep the temperature at 68 degrees because patients may have been affected by the cold temperature. The Agency explained that there was no way to adjust the temperature only to Complainant's office or work space. The Agency indicated that adjusting the temperature to Complainant's requirements would have meant replacing and updating the facility's entire HVAC system. The Agency also explained that it had adjusted the temperature on numerous occasions, and had provided Complainant with an accommodation by allowing her to us an air purifier and fan in her work area which allowed her to cool the area as needed. The Agency asserted that because Complainant failed to identify a vacant funded position, which she could have been reassigned to, the Agency was under no obligation to accommodate her. Notwithstanding, the Agency argued that it had provided Complainant with an accommodation, and while it was not the accommodation of her choice, she was effectively accommodated by being allowed to use an air purifier and fan in her work space so that she could lower the temperature as needed. The AJ granted the Agency's motion, finding that Complainant failed to show that she was denied a reasonable accommodation.
CONTENTIONS ON APPEAL
On appeal, among other things, Complainant asserts that the AJ erred in finding that the Agency was unable to provide her with the accommodation that she sought, specifically, the ability to control the temperature in her office. She asserts that the AJ accepted that it was an undue hardship on the Agency to accommodate her. She maintains the Agency gave up its attempt to accommodate her and blamed her for being negative about accommodations. Complainant indicates that contrary to the AJ's finding, her request for accommodation was reasonable. While she acknowledges that several of her accommodation suggestions were not viable, including having an individual thermostat in her office so that she could control the temperature as due to the age of the building and the HVAC system, each floor was controlled separately and so she could not have her own thermostat. She also agreed that a portable air conditioning unit was not viable because of inadequate drainage and the possibility of infection from standing water. However, she argues that the Agency failed to consider that she could be given an office in a different location that would allow for proper drainage. Complainant asserts that the AJ also improperly determined that she failed to participate in the interactive process because she rejected all of the suggestions that the Agency offered. Complainant indicated that, as a result of the Agency's inability to accommodate her, she was forced to use many hours of sick leave. After some time, Complainant moved to another office within the hospital and thereafter was given an air conditioner.
In response, among other things, the Agency contends that during the interactive process Complainant was adamant that she did not want to move to another office. Had she considered that option, however, the Agency argues that her accommodation of an air conditioner and the control of her office temperature may have occurred earlier. The Agency explained that once Complainant moved from the mental health unit she was able to have an office with a window which allowed an air conditioner.
ANALYSIS AND FINDINGS
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 final order. We find that even if we assume arguendo that Complainant is a qualified individual with a disability, the Agency demonstrated that it provided her with a reasonable accommodation through the use of an air purifier and fan which allowed her to cool her immediate work area and while this was not Complainant's first choice for an accommodation it was an effective accommodation.
The Commission has long held that if more than one accommodation is effective, although the preference of the individual with a disability should be given primary consideration, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations. 29 C.F.R. �1630.9; see, also Enforcement Guidance, at (Question 9; Polen v. Department of Defense, EEOC Appeal No. 01970984 (January 16, 2001).
Further, we find that the record shows that during the interactive period Complainant rejected many possible accommodations offered by the Agency and she was adamant that she did not want to change offices. The fact that she later changed offices to a new part of the hospital and was able to get an air conditioner is immaterial to this case as Complainant moved away from the mental health section where she had been previously located. We find that Complainant has provided no evidence which supports her contentions that she was not provided an effective reasonable accommodation. Accordingly, the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. The Agency's final order is AFFIRMED.
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
_4/10/15_________________
Date
2
0120122961
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013