01A22747
09-29-2003
Dorothy W. Pittard, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Dorothy W. Pittard v. Health and Human Services
01A22747
September 29, 2003
.
Dorothy W. Pittard,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A22747
Agency No. ACF-007-99
Hearing No. 100-A0-7316X
DECISION
Complainant timely initiated an appeal from the agency's final order
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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
AFFIRMS the agency's final decision.
The record reveals that, at all relevant times, complainant was employed
with the agency as a Program Analyst, GS-343-13, in the Office of
Regional Operations located in Washington, DC. Believing that she was
the victim of discrimination, complainant sought EEO counseling and
subsequently filed a formal complaint on May 13, 1999, alleging that
she was discriminated against on the basis of her disability when:
(1) the agency failed to reasonably accommodate complainant's disability
since February 1998,<1> and
on January 5, 1999, the Director of the Equal Employment Office informed
complainant that he would not process her request for reasonable
accommodation until the Department of Labor adjudicated her workman's
compensation claim.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision after a hearing,
finding no discrimination.
The AJ found that complainant failed to establish that she was an
individual with a disability, within the meaning of the Rehabilitation
Act. The AJ further found that notwithstanding complainant's failure
to establish a prima facie case of discrimination, the agency engaged in
an ongoing, interactive process with complainant regarding her chemical
sensitivity to odors and perfumes and provided her with various effective
accommodations.
On appeal, complainant, through her attorney, contends that the AJ erred
in finding that she was not a qualified individual with a disability.
Complainant additionally contends that she is entitled to relief for
the agency's failure to provide her with a reasonable accommodation.
The agency requests that we affirm its final order. Pursuant to 29
C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ 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 regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
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 final agency order.
In so finding, we note that assuming arguendo complainant is an individual
with a disability pursuant to the Rehabilitation Act, an individual with
a disability is not entitled to an accommodation of her choice, but only
to an effective accommodation, i.e., one that allows her to perform the
essential functions of her job. See EEOC Enforcement Guidance: Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities Act
(revised October 17, 2002), at question 9. Although complainant argues
that the accommodations that the agency made for her were inadequate to
shield her from irritants, the AJ's finding that complainant was provided
several reasonable accommodations to limit her exposure to irritants is
supported by substantial evidence in the record. Accordingly, we concur
with the Administrative Judge's finding that the agency's actions were
sufficient to meet its legal obligation under the Rehabilitation Act.
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
September 29, 2003
__________________
Date
1 Specifically, complainant requested a private office space. In the
alternative, complainant requested an office space configured to reduce
her direct exposure to fragrances, such as higher partitions for her
cubicle, a cubicle with an entrance off the main corridor, and a cubicle
not located next to someone who wore fragrances.