01A14195
12-30-2002
Harriette White, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Harriette White v. Department of Veterans Affairs
01A14195
December 30, 2002
.
Harriette White,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A14195
Agency No. 2001-2661
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning her complaint of unlawful 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. The appeal is accepted for the Commission's de
novo review pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a nurse at the agency's Medical Center in Tuscaloosa, Alabama.
Complainant sought EEO counseling and subsequently filed a formal
complaint alleging that she was discriminated against on the bases of sex
(female), disability (hyper irritable airways), and age (DOB: 04/02/1935)
when on July 31, 2000, Environmental Management Service (EMS) employees,
in the course of their duties, used a floor wax remover near her office
causing complainant to experience a severe allergic reaction. At the
conclusion of the investigation, complainant was informed of her right to
request a hearing before an EEOC Administrative Judge or alternatively,
to receive a final decision by the agency. Complainant requested that
the agency issue a final decision. In its final decision, the agency
concluded that complainant did not prove either that the agency denied
her reasonable accommodation or that the floor wax removal incident was
motivated by discriminatory animus.
Assuming arguendo that complainant is a qualified individual with a
disability within the meaning of the Rehabilitation Act, we find that in
1993 a specific agreement between management and complainant was reached
to accommodate her disability. The agreement provided the following:
(1) designated times for cleaning in the areas where complainant was
assigned; (2) complainant will be assigned elsewhere whenever irritant
chemicals are being used in the area; (3) coordination between EMS and
the Nursing Service on complainant's unit will be done, if any change in
schedule is necessary; (4) the head nurse or the acting head nurse and
EMS will communicate/coordinate the cleaning schedule; (5) complainant's
cooperation in scheduling and changing schedules is necessary to assure
efforts to accommodate her; (6) when complainant is not scheduled to work
she must notify the unit by telephone that she is coming onto the unit
and that she must inquire if chemicals are being used prior to entering
the unit; (7) if complainant experienced any problems with irritating
chemicals, she must remove herself immediately from the area and notify
or have someone notify the supervisor for corrective action; and (8)
in no event will complainant confront individuals of any services, nor
will they confront her, concerning real or perceived errors in these
accommodation efforts.
The record establishes that on the Friday, July 28, 2000, complainant
received notice that the EMS workers would be applying the floor wax
remover on Monday, July 31, 2000 at 4:00 p.m., the end of complainant's
tour of duty. Due to an emergency phone call, complainant was unable to
leave on time on Monday and before the EMS supervisor could successfully
intervene, the EMS workers began to apply the floor wax before complainant
exited the building.
Upon review of the record, we find that this was an unfortunate but
isolated incident. There is no evidence of a pattern of complainant
being denied the protections set forth in the 1993 agreement or that those
protections in any way failed to be consistently effective. We therefore
conclude that complainant has not established that the agency denied
her reasonable accommodation. We further find that complainant has not
presented any evidence from which a reasonable fact finder could draw
an inference of sex , age or disability discrimination. See Furnco
Construction Corp. v. Waters, 438 U.S. 567, 576 (1978). We therefore
affirm the agency's final decision, finding no discrimination.
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:
December 30, 2002
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations