U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Letty K.,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120142135 Hearing No. 410-2013-00350X Agency No. ATL-12-0376-SSA DECISION On May 23, 2014, Complainant filed a timely appeal from the Agency's April 30, 2014, 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. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order. ISSUES PRESENTED The issues presented are: (1) whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly decided the case without a hearing; and (2) whether the AJ properly determined that the preponderance of the evidence in the record did not establish discrimination based on disability. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Case Technician at the Agency's Atlanta North Hearing Office in Atlanta, Georgia. Complainant said that her first-level supervisors (S1A and S1B) were Group Supervisors, her second-level supervisors (S2A and S2B) were the Acting Hearing Office Director and the Hearing Office Director, and her third-level supervisors (S3A and S3B) were the Hearing Office Chief Administrative Law Judge and the Acting Hearing Office Administrative Law Judge. According to Complainant, she was diagnosed with asthma/reactive airway disease about 20 years ago, but lived "symptom-free" between about 2000 and 2010. Complainant stated that she remained symptom-free without using inhalers, steroids, or antibiotics because she used alternative methods to mitigate the symptoms of asthma. Complainant said, "Almost immediately after starting to work in the SSA toxic office environment [in 2010], I began experiencing many of the old symptoms related to asthma due to violation of the office/union "aerosol" policy (i.e., misuse of: aerosol sprays, Lysol spray, toxic cleaning products, pesticides, Raid, and bleach." Complainant stated that she is extremely sensitive to odors/fragrances, and that "once I am exposed, [I] suffer many symptoms including but not limited to: nausea, headaches/migraines, coughing, breathing problems, hoarseness, laryngitis and even bronchitis." Complainant said that, due to her physical impairment, her walking becomes limited due to a lack of lung capacity, her sleep is interrupted, and she experiences chest tightness and heart palpitations. Complainant said that on June 15, 2011, she notified S1A about her disability. According to Complainant, S1A told her that "Lysol was a germ killer and wouldn't hurt me." The record contains a June 15, 2011, email from Complainant to S1A, with a carbon copy to S1B and S3A, which states, in relevant part, "I am having problems (almost on a daily basis) and would like to help develop a workplace policy. After asking [S3] for help yesterday (as it relates to the overuse of aerosol, candles, etc.) he asked me to refer to you. When you have a moment, I have a note from my doctor regarding environmental toxins and what a serious issue it is (not only to me but to many others including several who may not be aware.)" Complainant attached a June 14, 2011, note from Complainant's son, who is a chiropractor (C1), which states, in relevant part, "[Complainant] has a hypersensitivity to multiple chemical substances. Her heightened sensitivity to environmental toxins (i.e., perfumes, fragrances, cleaning products which include aerosol sprays) causes adverse reactions (i.e., increased immune responses, burning sensations in the nose, eyes and throat, allergic reactions, migraines, asthma like symptoms, etc.) I have suggested she detoxify herself, and avoid as much as possible, any exposure due to the hypersensitivity reactions brought on by the exposure to chemicals." On June 21, 2011, Complainant stated that she contacted the Hearing Office Administrator in the Regional Office (R1). According to Complainant, R1 told her that "employees should not be using strong products like bleach" and suggested that she inform her supervisor and contact a union steward if management did not act. On August 4, 2011, S2A sent all Atlanta North employees an email, which states, in relevant part, "As a reminder, please make sure that you check with management before using any type of aerosol spray or cleaning product. We have employees in the office who are extremely sensitive to chemicals and sprays and this could lead to serious health issues." On November 15, 2011, Complainant said that S1B and S2B called her into a meeting. According to Complainant, at the meeting S1B told her that there was an office policy prohibiting the use of aerosols. Complainant stated that S1B also told her that management was creating a Committee to Address Air Quality Issues in the Office (Committee). The record contains a November 15, 2011, email from S1B to Complainant, which states, in relevant part, "As we discussed earlier today, pursuing a Reasonable Accommodation is appropriate. The office has offered you a change in cubicle location. We have removed all office-supplied cleaners and replaced them with products you suggested. Management and the AFGE rep have issued reminders to the staff. We have spoken directly with employees who have used other products. Through the work of the Air Quality Committee we will continue to address the issue." On November 16, 2011, Complainant requested a reasonable accommodation in writing from S1B. According to Complainant, she asked the Agency to purchase, provide, and use less toxic cleaning chemicals, refrain from cleaning and spraying during her 6:30 a.m. to 3:30 p.m. shift, schedule all pest control appointments after her shift, and enforce the ban on aerosol products. The record contains Complainant's November 16, 2011, reasonable accommodation request, which requests that the Agency "Adopt and Enforce a "Fragrance Free" Policy similar to CDC's 2009 INDOOR ENVIRONMENTAL QUALITY POLICY; thereby eliminating all use of: aerosol(s), in-office application of scented products (i.e., nail polish, perfumes/colognes, lotions, etc.); Lysol, pesticides, insecticides, etc.; provide a "fragrance free work area" to protect/accommodate both employees and claimants from damage to respiratory/pulmonary issues; make appropriate adjustments or modifications so that employees with a disability 'can enjoy the same benefits and privileges of employment as similarly situated employees.'" On November 22, 2011, S1B sent an email to all Atlanta North employees, which stated, "On August 4, 2011 the Acting HOD issued a directive regarding the use of aerosols and cleaning products in the office - 'make sure that you check with management before using any type of aerosol spray or cleaning product. We have employees in the office who are extremely sensitive to chemicals and sprays and this could lead to serious health issues.' . . . [A]ir fresheners may not be used in SSA space without specific permission from [the Office of Environmental Health and Occupational Safety]. This includes any chemical product or device that is intended to alter the air quality. And, specifically Lysol spray is prohibited." S3A said that on February 17, 2012, he denied Complainant's November 16, 2011, request for a reasonable accommodation because he found that she was not an individual with a disability based on the medical records she provided. According to S3, although he determined that Complainant was not entitled to a reasonable accommodation, the Agency took steps such as limiting Lysol use, using less odorous cleaning supplies, and offering to move Complainant's cubicle away from the bathroom. According to Complainant, the Agency's response to her request was not a reasonable accommodation because the Agency did not completely eliminate the use of Lysol, aerosols, and toxic cleaning products. On March 2, 2012, Complainant requested a reassessment of S3A's determination. Complainant said that she was denied advanced sick leave on March 28 and 29, 2012, when she had to take leave due to symptoms she experienced as a result of exposure to chemicals in the workplace. S1B said that Complainant worked on March 28, 2012. According to S1B, Complainant requested Leave Without Pay (LWOP) for March 29 and 30, 2012, which was granted. The record contains a request from Complainant for LWOP for March 29 and 30, 2012. The record does not contain a request for advanced leave for these dates. The record contains a June 7, 2012, email from S2B to all Atlanta North employees, which states, in relevant part, "Management has sent out office-wide messages regarding the use of certain chemicals within the office, especially those containing aerosol. We have prohibited the use of aerosol sprays such as Lysol, compressed air or any other sprayed chemicals without prior management approval. . . . Let me be clear on this: No sprays unless local management has authorized it. This is an office policy." On July 5, 2012, S3B issued a decision on Complainant's request for reassessment. In his decision, S3B determined that Complainant was an individual with a disability because of her sensitivity to bleach, Lysol, and similar cleaning products. However, S3B determined that Complainant had already been accommodated by the office policy on the use of sprays and other irritants and by notifying Complainant before any potential exposure to those products. Complainant initiated EEO counseling on March 9, 2012. On April 17, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (asthma, respiratory ailments) when: 1. On February 17, 2012, S3 denied her request for a reasonable accommodation (submitted on November 16, 2011), asking management to adopt and enforce a "Fragrance Free" policy, thereby eliminating all use of aerosols, scented products, pesticides, insecticides, and certain cleaning products such as Lysol; 2. On March 28 and 29, 2012, management officials failed to provide her with a reasonable accommodation when they did not assign her to a safe and healthy work area and denied her requests for advanced leave and/or Leave Without Pay due to symptoms she experienced as a result of exposure to chemicals in the workplace; and 3. Beginning November 16, 2011, the Agency violated the terms of the AFGE National Agreement pertaining to unsafe/unhealthy working conditions. The Agency accepted claims 1 and 2 for investigation and dismissed claim 3 pursuant to 29 C.F.R. § 1614.107(a)(1). When the Agency requested more information about why her EEO counselor contact was untimely with respect to this claim, Complainant referenced her reasonable accommodation request, which is already the subject of claim 1. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an AJ. Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's January 10, 2014, motion for a decision without a hearing and issued a decision without a hearing on April 10, 2014. The AJ determined that Complainant's request for a fragrance free workplace was not reasonable or that the accommodations offered and provided by the Agency were effective. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the AJ applied the incorrect legal standards because the AJ treated Complainant's request as a request for a completely fragrance free environment, instead of as a request for the removal of particular allergens. According to Complainant, the Agency failed to engage in the interactive process with Complainant. Complainant maintains that there is a genuine issue of material fact as to whether "the Agency actually took the appropriate steps to enforce the reasonable accommodation provided to Complainant, and remove aerosols from the workplace." Complainant requests that her complaint be remanded for a hearing. In response to Complainant's appeal, the Agency contends that Complainant failed to establish that her request for a fragrance free policy was reasonable or that the accommodations offered and provided by the Agency were not effective. The Agency requests that its final order be affirmed. ANALYSIS AND FINDINGS In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). As a preliminary manner, we affirm the Agency's dismissal of claim 3 pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency dismissed the claim as a duplicate claim, but we affirm the dismissal for failure to state a claim as a collateral attack on another forum's proceedings. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The matter raised in claim 3 of the instant complaint should be resolved within the collective bargaining agreement's negotiated grievance process. The EEO process is not the proper forum for Complainant to have raised her challenge to actions that directly relate to alleged violations of the collective bargaining agreement. Decision without a Hearing We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). Here, we affirm the issuance of a decision without a hearing because there is no genuine issue of material fact. Complainant first alleges that there is a genuine issue of material fact as to whether the Agency engaged in the interactive process, and she then contends that the Agency granted her a reasonable accommodation but that there is a genuine issue of material fact as to whether the Agency "enforced" the accommodation. However, the evidence in the record clearly establishes that the Agency engaged in the interactive process and accommodated Complainant. Reasonable Accommodation In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002). An agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(c) and (p). "The term "qualified," with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position." 29 C.F.R. § 1630.2(m). For the purposes of this decision, we will assume that Complainant is a qualified individual with a disability. In claim 2, Complainant alleged that on March 28 and 29, 2012, the Agency failed to provide her with a reasonable accommodation when it did not assign her to a safe and healthy work area and denied her requests for advanced leave and/or Leave Without Pay due to symptoms she experienced as a result of exposure to chemicals in the workplace. During the investigation, Complainant did not address her allegation that the Agency "did not assign her to a safe and healthy work area" on March 28 and 29, 2012. With respect to Complainant's request for leave, the evidence in the record indicates that Complainant requested and was granted LWOP for March 29 and 30, 2012. There is no evidence in the record that Complainant requested advanced leave. Accordingly, the preponderance of the evidence in the record does not establish that Complainant was denied a reasonable accommodation as alleged in this claim. In claim 1, Complainant alleged that she was denied a reasonable accommodation when her request that the Agency adopt and enforce a "Fragrance Free" policy, thereby eliminating all use of aerosols, scented products, pesticides, insecticides, and certain cleaning products such as Lysol, was denied. On appeal, Complainant contends that the AJ erred because he treated Complainant's request as a request for a completely fragrance free environment, instead of as a request for the removal of particular allergens. However, the text of Complainant's reasonable accommodation request (and the accommodation that was denied in S3A and S3B's decisions) was a request for a totally fragrance free environment. We have previously determined that a complainant's request for an entirely fragrance free work environment can pose an undue hardship on an agency. See Roberts v. Dep't of Transportation, EEOC Appeal No. 01970727 (Sep. 15, 2000). The Agency appropriately initiated the interactive process and provided a number of alternate accommodations to Complainant. In response to Complainant's request, the Agency offered to move Complainant's work station, changed to office cleaning supplies recommended by Complainant, banned the use of aerosols and cleaning product use in the office without management approval, issued reminders about the ban, spoke to employees who violated the policy, formed the Committee, invited Complainant to join the Committee, relocated Complainant to a different building during a project, and granted her paid and unpaid leave as requested. While Complainant is entitled to an effective reasonable accommodation, she is not entitled to the accommodation of her choice. Lynette B. v. Dep't. of Justice, EEOC Appeal No. 0720140010 (Dec. 3, 2015). Complainant has not shown that the accommodations offered and provided by the Agency were not effective. See ***, Complainant, v. U.S. Postal Serv., EEOC Appeal No. 0120132469 (Oct. 22, 2013)(complainant with migraines did not demonstrate that the agency asking employees not to wear strong fragrances and granting leave when he experienced migraines was not an effective reasonable accommodation); Garvich v. U.S Postal Serv., EEOC Appeal No. 01A43925 (July 7, 2005)(complainant with migraines and fragrance sensitivity did not demonstrate that she was denied a reasonable accommodation where agency allowed Complainant to move around the facility when a fragrance bothered her, told employees to be mindful of wearing strong fragrances, and asked employees wearing strong fragrances to wash it off or change their clothes). We therefore find that the Agency had fulfilled its obligation under the Rehabilitation Act. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order because the case was properly decided without a hearing and the preponderance of the evidence in the record does not establish that Complainant was denied a reasonable accommodation. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations 11-30-16 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2014-2135