0120112065
08-09-2013
Haneefah Mahmood-Williams, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Haneefah Mahmood-Williams,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120112065
Hearing No. 551-2010-00096X
Agency No. SEA-10-0045
DECISION
Under 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 10, 2011 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
Complainant worked as a Legal Assistant at the Agency's Washington Office of Disability Adjudication and Review. For six years, she worked at a cubicle that was next to a window. But then one day, a coworker moved in to an adjoining cubicle, a coworker who, according to Complainant, had bad body odor and ate fermented food for lunch.
The "noxious smells" emanating from the coworker's cubicle made Complainant feel nauseous, according to her doctor's note. She claimed that she had a desire to vomit, suffered from headaches, and had difficulty maintaining normal breathing while working at her cubicle. She had to walk away from her cubicle to breathe in normal air, and resorted to using a mask while the coworker ate her fermented food.
Complainant felt she had a "disabling condition" of "noxious smells" and requested that the Agency provide her with a plug-in fan as an accommodation. But the fan proved to be ineffective because it drew in the bad odors whenever the fan was pointed at Complainant. And when the fan was allegedly pointed at the coworker, the coworker complained to management.
Specifically, on September 1, 2009, the coworker complained to management that Complainant had pointed the fan at her. Management then instructed Complainant to not point the fan at the coworker. According to Complainant, this instruction "completely devastated and humiliated" her because she maintained that she had not done this to the coworker, yet management chose to believe the coworker's story without further inquiry or investigation.
On September 30, 2009, management sent out an email, indicating there was a vacant workstation on the fifth floor outside of hearing room A. According to an October 19, 2009 email by a union representative, Complainant was offered an opportunity to move to another workstation, but declined.
Window Blinds
The cubicles of Complainant and the coworker were next to a window with blinds. On some days, the coworker needed the window blinds to be lowered and closed to block out the glare, as a reasonable accommodation for her cataracts. The record indicates that she was bothered by the glare and light sensitivity.
Complainant preferred to have the window blinds up, and took umbrage that the Agency and union prioritized the coworker's need to adjust and lower the blinds as a reasonable accommodation over her own personal preference to have the blinds up.
Other Incidents
On January 13, 2010, someone left an anonymous, typed note for Complainant. The note stated: "Haneefah, please don't be upset, but could you please go lighter on your perfumes. The aroma is usually noticeable from 20 feet away. For those of us that have allergies, it makes it difficult at times. I hope this doesn't hurt your feelings."
On March 10, 2010, Complainant complained that the left armrest of her relatively new chair was damaged. Complainant suspected it had been done by a coworker. Management offered Complainant a new chair.
The next day, on March 11, 2010, Complainant discovered that someone had left a radio on her desk with a note, stating: "For you, enjoy! Headphone jack on back, best reception near window." The note was unsigned, but a supervisor later admitted that morning that she had written the note and given the radio to Complainant because there had been complaints about the volume of Complainant's radio, which did not have a jack for headphones.
On that same day, management rescinded the accommodation of adjusting and lowering the blinds for the coworker because it had resulted in "ongoing conflict and reduced productivity, which negatively impacts the Agency." Management moved the coworker to a different cubicle on another floor.
Complainant filed a formal complaint. The relevant claims before the EEOC Administrative Judge (AJ) were whether the Agency discriminated against Complainant on the bases of race (African-American), sex (female), disability (nausea, headaches, difficulty breathing, anxiety), age (55), and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. on September 3, 2009, management ordered her to position her fan towards herself and not her coworker although Complainant had already performed the management-required action;
2. on September 4, 2009, her fan was removed from her desk;
3. on September 11, 2009, management denied her reasonable accommodation request for a fan to clear fumes caused by a coworker having a bad body odor and fermented food at her work station;
4. on September 30, 2009, one of her supervisors placed a restriction on her ability to open her blinds, which differed from guidance she received from another supervisor;
5. on January 13, 2010, an anonymous coworker wrote and left a note falsely accusing her of wearing too much perfume.
6. on March 10, 2010, her chair was damaged;
7. on March 11, 2010, a supervisor placed a note, headset, and radio at her work station.
The AJ issued summary judgment in favor the Agency. First, the AJ addressed Complainant's general claim that the Agency failed to provide an effective, reasonable accommodation for the coworker's bad body odor.
The AJ determined that Complainant was not entitled to a reasonable accommodation for the coworker's bad body odor because she was not an individual with a disability. The AJ found that Complainant experienced only temporary breathing problems in response to a specific workplace stimulant, and was therefore not substantially limited in the major life activity of breathing. Furthermore, the AJ determined that Complainant provided no medical evidence showing that she had a physiological disorder or condition that was due to or was exacerbated by the coworker.
The AJ also rejected Complainant's contention that the Agency "regarded" her as an individual with a disability, merely because it granted her request for a fan. Providing an accommodation, by itself, does not mean that an employer regarded an individual as having a substantially limiting impairment.
Second, the AJ addressed Complainant's claim that she had been subjected to hostile work environment harassment in reprisal for requesting a reasonable accommodation. After she requested a fan as a reasonable accommodation for the coworker's body odor, Complainant maintained that she was retaliated against when:
* management accused her of pointing her fan at the coworker;
* management provided the coworker with an accommodation that restricted Complainant's control of her own blinds;
* someone wrote her an anonymous note, falsely accusing her of wearing perfume;
* someone damaged her chair
* a supervisor placed a radio and anonymous note at Complainant's work station.
The AJ found that there was no evidence indicating that Complainant's request for a reasonable accommodation had anything to do with these incidents. Therefore, Complainant failed to establish that she was subjected to a hostile work environment based on reprisal for requesting a reasonable accommodation.
The Agency issued a final order, adopting the AJ's findings of no discrimination.
On appeal, Complainant only challenges the AJ's findings regarding the failure to provide a reasonable accommodation, and hostile work environment on the basis of reprisal. The brief does not present arguments regarding the other bases of sex, race, and age. Therefore, the Commission exercises its discretion to not address those bases here.
For Complainant's accommodation claim, even if Complainant was assumed to be an individual with a disability who was entitled to a reasonable accommodation, we would not find that she was denied a reasonable accommodation. This is because Complainant would only be entitled to an effective accommodation, not the accommodation of her choice. Here, Complainant's attorney appears to suggest that there were only two effective accommodations to address the coworker's body odor: (1) relocate the coworker to another cubicle, or (2) force the coworker to improve her hygiene. But there was a third accommodation, one that the Agency offered to Complainant but she turned down: Complainant could move to another vacant cubicle.
For the hostile work environment claim, we agree with the AJ's conclusion that Complainant failed to show that the supervisors, coworkers, and unknown persons behind these incidents were motivated by Complainant's requesting a reasonable accommodation. Furthermore, we note that most of the alleged incidents (asking Complainant to not point the fan at a coworker, adjusting and lowering the office's window blinds to provide a legitimate accommodation to a coworker with a disability, giving a radio to Complainant) were not severe or pervasive enough to constitute a hostile work environment.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, the Commission AFFIRMS the Agency's final order, because 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.
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
_8/9/13_________________
Date
2
0120112065
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112065