01A10323
04-09-2002
Mary E. Lynch, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Mary E. Lynch v. Department of Veterans Affairs
01A10323
April 9, 2002
.
Mary E. Lynch,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A10323
Agency No. 99-0946
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision (FAD),
dated September 13, 2000, 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.<1> 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 during the relevant time, complainant was employed
as a part-time temporary Infection Control Nurse, at the agency's VA
Medical and Regional Office Center (Center), White River Junction,
Vermont. Complainant sought EEO counseling and subsequently filed a
formal complaint on April 2, 1999, alleging that she was discriminated
against on the basis of disability (latex allergy) when she was terminated
from employment, effective February 6, 1999.
ISSUE PRESENTED
Whether complainant was discriminated against on the basis of disability
when the agency failed to provide complainant with a reasonable
accommodation for her disability and this failure resulted in her
termination.
BACKGROUND
Complainant was hired in 1989, and had worked in several different
positions at the Center prior to her last position. Complainant had
a history of asthma for many years and also had allergies to food,
dust, and cats. In 1997, complainant consulted with several doctors,
including allergists, concerning her sensitivity to latex.<2> Complainant
advised her doctors that she had allergic reactions to latex. One of
complainant's doctors found no evidence of the allergy and another found
that she was latex allergic.<3> Complainant notified the agency of her
allergy and her anaphylactic reaction to latex.<4> Beginning in 1997,
complainant began to take various forms of leave after learning of her
latex sensitivity and essentially never returned to the Center after
January 28, 1998. Complainant was terminated, effective February 6, 1999.
On January 6, 1998, complainant filed a claim for worker's compensation
with the Office of Workers' Compensation Programs. In support of her
claim, complainant submitted numerous documents and medical reports which
discussed the history of the development of complainant's condition,
the results of laboratory and diagnostic tests, and physical examination
findings.<5> On April 5, 1999, the hearing officer referred the matter
to a specialist for a medical opinion because of conflicting medical
testimony. The specialist reported that he believed that the patient's
symptom complex, work environment and history were consistent with a
diagnosis of latex sensitivity, but that a definite diagnosis would
require further testing.
Complainant stated that she wanted the Center to convert to powder-free
latex gloves<6>; and was not able to return because the environment had
not become latex safe. The Center offered the following accommodations
to complainant: the use of masks, respirators, latex-free gloves,
reassignment to a different position in a latex-free office environment
outside of the hospital in a building with a separate air system,
minimization of her visits to known latex-rich areas, and reassignment
to an alternate position in the medical care cost recovery program with
no loss in salary or benefits. Complainant refused these accommodations
because she believed that she might still be inadvertently exposed to low
levels of latex carried into her area or bathrooms by other personnel,
including housekeeping or medical staff; and that latex may still be
present in her office, including in the mouse pad, the computer screen,
carpet backing, pencil erasers, and other items.
Complainant stated that she did not contact the Center or return to
work because she was waiting for the Center to notify her that it had
eliminated powdered latex gloves or had become completely latex safe.
There was testimony that there was no current way to totally eliminate
latex from a medical environment and that those hospitals that did go
nearly�latex-free,� did it at the cost of many millions of dollars.
By a letter dated September 29, 1998, the Acting Chief-of-Staff (ACS)
requested complainant to contact him no later than October 9, 1998,
regarding her employment intentions. By a note, dated September 28,
1998, sent by complainant to ACS's home, complainant stated she was
awaiting an appeal date with OWCP regarding her denied claim, but did
not provide any other information concerning her employment intentions.
This note crossed in the mail with ACS's letter. Complainant testified
that she thought her note satisfied ACS's inquiry and she did not further
respond. By letter dated January 4, 1999, the Hospital Director (HD)
notified complainant that she would be terminated from her position,
effective February 6, 1999.
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 FAD, the agency concluded that complainant failed to state a
prima facie case of discrimination on the basis of the agency's failure
to accommodate her allergy to latex because complainant's condition
did not appear to meet the definition of disability; that she did not
demonstrate that her allergy to latex substantially limited a major
life activity; and that she was not otherwise qualified to perform the
essential functions of an infection control nurse because of her fear
of inadvertent exposure to latex. Further, the agency stated that it
made diligent efforts to offer reasonable accommodations to complainant,
and that no reasonable accommodation would eliminate her fear of exposure
to latex. Concerning the termination, the FAD stated that the evidence
supported a finding that complainant did not respond to the agency's
notice of proposed termination. Also, that complainant failed to prove
that the agency's actions were a pretext for discrimination, or that
the agency terminated her employment due to discriminatory animus.
CONTENTIONS ON APPEAL
On appeal, complainant contends that she did not refuse to return to work
under any condition but that she was unable to return to an environment
where exposure to the powder of the latex gloves continued to exist;
where the environment was not free of ambient latex particles; that
she is allergic to latex; that the allergy could substantially limit
the major life activity of breathing; that the agency failed to make
a reasonable effort to engage in the informal interactive process and
that the agency lacked good faith. The agency states that the appeal
raises matters that either does not require comment or were otherwise
fully addressed in the FAD.
ANALYSIS AND FINDINGS
Complainant's allegations constitute a claim of disparate treatment in
the termination of her employment which is properly analyzed under the
three-tier order and allocation of proof as set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See also Hochstadt v. Worcester
Foundation for Experimental Biology, Inc., 425 F.Supp. 318, aff'd, 545
F.2d 222 (1st Cir. 1976); and Prewitt v. United States Postal Service,
662 F.2d 292 (5th Cir. 1981) (applying the scheme to cases brought under
the Rehabilitation Act). The burden of proof under this scheme remains
at all times on the complainant.
Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. � 791 et seq.,
prohibits discrimination on the basis of disability and requires agencies
of the Federal government to make reasonable accommodation to the known
physical. or mental limitations of qualified employees with disabilities,
unless the agency can demonstrate that accommodation would prove to
be an "undue hardship." 29 C.F.R. � 1614.203(b) and (c). A "person
with a disability" is one who: (1) has a physical or mental impairment
that substantially limits or restricts one or more of his or her major
life activities; or (2) either has a record of such impairment or is
regarded as having the impairment. 29 C.F.R. � 1614.203(a). "Major life
activities" include such functions as caring for one's self, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning,
and working. 29 C.F.R. � 1614.203(a)(3). To establish a prima facie
case of discrimination based on a failure to accommodate a disability,
complainant must show: (1) that she is a "person with a disability"
for purposes of the Rehabilitation Act, as defined in 29 C.F.R. �
1614.203(a); (2) that she is a "qualified person with a disability," in
that she is qualified for and can perform the essential elements of the
position at issue with or without reasonable accommodation, as specified
in 29 C.F.R. � 1614.203(a)(6); and (3) that she received an adverse
employment action as a result of her disability. Arneson v. Heckler,
50 FEP Cases 451 (8th Cir. 1989); Treadwell v. Alexander, 707 F.2d 473
(11th Cir. 1983); Prewitt v. U.S. Postal Service, supra. In addition,
initially, complainant must make at least a facial showing that her
disability can be accommodated. Treadwell v. Alexander, supra at 477-78.
In that the gravamen of complainant's claim is that the agency failed to
provide a reasonable accommodation for her disability which resulted in
her termination, the Commission will assume, arguendo, that complainant
established a prima facie case of discrimination based on a failure to
accommodate. However, the record indicates that the agency offered the
following accommodations to complainant: the use of masks, respirators,
latex-free gloves, offered to reassign her to a different position in
a latex-free office environment outside of the hospital in a building
with a separate air system, offered to minimize her visits to known
latex-rich areas, and offered reassignment to an alternate position in the
medical care cost recovery program with no loss in salary or benefits.
However, complainant refused these accommodations because she believed
that she might still be exposed to inadvertent low levels of latex
carried by other personnel, and that latex may still be present in
the office where she was to work. Basically, complainant wanted the
facility to be entirely latex-free. The agency is not obligated to
provide complainant with her chosen accommodation. See EEOC Enforcement
Guidance: Reasonable Accommodation and Undue Hardship under the Americans
with Disabilities Act, EEOC Order No. 915.002, question 9 at 17 - 18
(March 1, 1999). It must provide only a reasonable accommodation that
allows complainant to perform the essential functions of her job. Id.
We find that the agency made reasonable efforts to provide appropriate
accommodations for complainant's disability. In that we find that the
agency made reasonable efforts to provide appropriate accommodations,
we need not address complainant's contention on appeal that the agency
did not act in good faith and did not make a reasonable effort to engage
in the informal interactive process.
Concerning the termination, the record reflects that complainant was
terminated for failure to respond to the agency's notice of proposed
termination and did not otherwise advise the agency as to her intentions
concerning her continued employment. We find that the agency met its
burden to provide a legitimate nondiscriminatory reason for its action.
The Commission further finds that complainant failed to present evidence
that more likely than not, the agency's articulated reason for its
actions were a pretext for discrimination.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we affirm the FAD.
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
April 9, 2002
Date
1 The Rehabilitation Act was amended in 1992
to apply the standards in the Americans with Disabilities Act (ADA)
to complaints of discrimination by federal employees or applicants
for employment.
2 Latex is derived from natural rubber which comes from the milky
sap of certain species of plants. Natural rubber is made into natural
rubber latex through a manufacturing process. The degree to which a
person having a natural latex sensitivity/allergy reacts to the natural
latex is dependent on the sensitivity of the patient, how the natural
rubber protein enters the body (e.g., inhalation of powder or direct skin
contact), and other factors, such as, frequency and magnitude of exposure.
Department of Veterans Affairs, Directive 7701, July 8, 1998.
3 Complainant had seen four or more doctors during the relevant time
period.
4 An anaphylactic reaction could manifest itself as a swelling of the
eyes, swelling of the mouth, swelling of the tongue, swelling of the back
of the throat, or chest wheezing. A victim could experience a drop-off
of oxygenation, a rise in respiratory rate, a change in blood pressure,
as well as other symptoms.
5 The OWCP initially denied complainant's claim but she appealed the
decision. The results of the appeal are not reflected in the record.
6 Certain types of latex gloves release a powder that causes the latex
protein to become an air-borne allergen that can be breathed in and can
cause allergy and asthma symptoms.