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EEOC Administrative Decision
- Fragrance Illness Accommodation -
Roberts v. U.S. DOT


Received via E-mail Sun, 01 Apr 2001 13:50:08 -0500
With many thanks to our friend K.

The link supplied -- 0+0+0&WAISaction=retrieve -- does not work for me, therefore, I've uploaded this for your convenience and edification. -- barb

Ella Roberts v. U.S. Department of Transportation
September 18, 2000

Ella Roberts,    )
Complainant,    )
   ) Appeal No. 01970727
v.    ) Agency No. 4-96-062
Rodney E. Slater,   )
Secretary,   )
U.S. Department of Transportation )
(Federal Aviation Administration), )
Agency. )



Complainant timely appealed the agency's final decision that it had not discriminated against her in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. †2000e et seq., and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. †791 et seq. The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. † 1614.405).


Whether complainant has proven, by a preponderance of the evidence, that she was discriminated against:

on the bases of race (African-American), sex (female) and reprisal (prior EEO activity) when on September 17, 1995, she was removed from her alternate work schedule (AWS) while a similarly situated White male was allowed to work on an AWS;

on the bases of her physical (Multiple Chemical Sensitivity) and mental (depression and stress) disability and/or in retaliation for prior EEO activity when her requests for reasonable accommodation were denied, and when she was subjected to a hostile work environment by being forced to continue working with an allegedly difficult employee.


On January 5, 1996, complainant, the Assistant Manager of Programs, Great Lakes Region, filed a formal EEO complaint alleging that the agency discriminated against her as referenced above. The agency accepted and investigated the complaint. At the conclusion of the investigation, complainant requested an immediate final agency decision (FAD). On September 27, 1996, the agency issued a FAD finding no discrimination. It is from this decision that complainant now appeals.

The record reveals that complainant has worked in her present position as Assistant Manager of Programs (AMP) since March 9, 1991. She previously worked as an Area Supervisor (AS) from 1989 until 1991. Complainant alleged in her complaint and affidavit that she suffers from a condition called Multiple Chemical Sensitivity (MCS) which was triggered in 1983 when she was exposed to paint fumes in the work environment. Complainant averred that when she is exposed to fragrances such as perfumes, she becomes ill by contracting respiratory infections, which require her to go on sick leave and take prescription medications. Furthermore, her illness manifests itself by causing her to tear, lose her voice, gag, and suffer from headaches. She claims that her condition has worsened over the years, and that she must work in a fragrance free environment. Other evidence in the record includes medical documentation from physicians describing the effects of her MCS. One physician remarked that over the 1996 year, complainant was seen in his office for problems associated with MCS eighteen times.

Complainant's allegations center around the agency's failure to accommodate her need for a fragrance free environment. Complainant averred that her prior supervisor refrained from wearing fragrances in her presence, and also advised her when chemicals would be on site in advance. However, complainant alleges that the current Air Traffic Manager (ATM) (African-American female, no disability, no prior EEO activity), although aware of her condition, refused to stop wearing fragrances in her presence, and has failed to accommodate her disability.

Complainant claims she alerted the ATM to her MCS in April 1994, and requested that employees refrain from wearing fragrances in her presence. In June 1994, complainant presented the ATM with a note from her physician which stated that she suffered from severe allergies and that she should avoid fragrances. Complainant concedes that the ATM issued a memorandum in August 1995, requesting employees to refrain from wearing perfume in complainant's presence, although the ATM herself continued to wear perfume, which, according to complainant, contributed to a hostile work environment. Following a November 1994 request for an air filter, she received such from the Assistant Air Traffic Manager (AATM)(African-American male, no disability, no prior EEO activity), which he brought in from his home, without the benefit of its supplies.

Documentary and testimonial evidence in the record reveals that beginning in September 1994, an acrimonious relationship existed between complainant and a Training Specialist (TS), who was complainant's subordinate.<1> Complainant testified that this relationship contributed to her stress and depression.

In April 1995, the ATM implemented a revitalization plan which involved rotating Area Supervisors (AS) into complainant's position, as well as rotating complainant into AS positions for 120-day details. According to the ATM, the purpose of this plan was to "support continued development of and proficiency of supervisors and staff specialists."<2> ROI at ex. 5. After complainant was notified of her impending detail to an AS position, complainant became concerned about whether her MCS would be accommodated. Therefore, she spoke with the AATM, who requested medical documentation. Complainant testified that she presented him with documentation on May 10, 1995, which said that complainant suffered from acute sinusitis brought on by an allergy to fragrances.

On May 14, 1995, complainant was detailed to an AS position pursuant to the revitalization plan. Between May 28, 1995 and July 1995, another individual was detailed into complainant's position as AMP. On May 17, 1995, due to the stress she experienced at the time surrounding the supervision of the TS, and soon after she was notified about her impending detail, complainant was diagnosed as suffering from depression. In August 1995, complainant's psychologist wrote that complainant suffers from an adjustment disorder with depressed features, and complained of excessive crying, trouble sleeping, and has little energy or motivation. He prescribed her with anti-depressant medication. Soon after her diagnosis, complainant notified the ATM of the diagnosis and prescription medication she was taking.

The record reveals that throughout the summer months, complainant spent the majority of time on sick leave until approximately September 1995, instead of on the detail. She testified that she became stressed and depressed at the thought of the detail assignment. Complainant also stated she was embarrassed due to the manner in which the agency told her about the detail, that being, in front of her co-workers, without advance notice. Complainant testified that she believed the detail was a demotion, in light of her prior experience working as an Area Supervisor. In addition, complainant believed management was targeting her and failing to address her concerns with respect to the TS, and her disabilities. Also during this time, complainant alleged that the ATM decided to move complainant into the same office as the TS, and required that complainant maintain a medical clearance for operational currency.<3> As a result of the above, in June 1995, complainant filed a grievance over her reassignment. Also, complainant testified on behalf of another individual, who also suffered from MCS, and had filed an EEO complaint.

Complainant returned to work in September 1995. Upon her return, complainant learned she was removed from the Alternate Work Schedule (AWS). At that time, complainant's psychiatrist noted that although complainant has improved somewhat, her return to work in September 1995 "produced a full recrudescence of [complainant's] symptoms." ROI at ex. 5.

In August 1995, management required that all employees discontinue working the Alternate Work Schedule (AWS). Although complainant was removed from her AWS when she returned from sick leave in September 1995, she maintained that the Assistant Manager for Automation (Caucasian male, no disability, no prior EEO activity) was permitted to continue working the AWS, as was another AS (African-American male, no prior EEO, no disability). Complainant averred that she was capable of completing her work while on the AWS, but that she was removed from the AWS by the ATM and AATM who claimed that there was a need to restore continuity.

On October 2, 1995, complainant wrote the ATM and AATM about her MCS, and also submitted medical documentation from her physician, which stated that she suffered from significant nasal allergies which caused extreme sensitivity to environmental odors such as perfume and tobacco. Furthermore, complainant's physician recommended that complainant have a high quality air cleaner in her office in order for her to tolerate particles in the air. In her letter, complainant referenced her previous requests for an air purifier and fragrance free environment, and noted that her disability had not been accommodated.

On November 7, 1995, complainant received a memorandum from the ATM, in which she proposed that complainant be permanently reassigned or terminated from her position as AMP. The memo also acknowledged complainant's June 1995 grievance, as well as the fact that she had been out on sick leave and that she was taking prescription medication. In her complaint, complainant alleged that at this time, the ATM told her the action was being taken because "she was "not loyal to management." Complaint at p. 3. No actions pursuant to the memorandum were ultimately taken.

On November 20, 1995, the AATM responded to complainant's request for an accommodation by requesting that she submit detailed medical information, which included a diagnosis, prognosis, list of medications, explanation of the impact of medical condition on complainant's health, as well as information which may indicate whether complainant may be expected to suffer any incapacitation from the impairment. On December 15, 1995, complainant requested a 45-day extension for the medical documentation requested by the agency. Her request was later granted. Thereafter, on March 6, 1996, the agency notified complainant that as they had not received the documentation, there would be no further decision rendered on the issue of complainant's request for an accommodation. This complaint followed.

Final Agency Decision

In its final decision, the agency found that complainant failed to establish that she was an individual with a disability with respect to either her MCS or depression, in that she failed to show how either impairment substantially limited a major life activity. Assuming that complainant was a qualified person with a disability, the agency found that complainant failed to show that her conditions could be accommodated. Although management was aware of complainant's requests for a fragrance free environment, air purifier, and relief from supervising the TS in order to alleviate her depression, the agency found that complainant failed to respond to the November 20, 1995 request for medical documentation. According to the agency, such information was necessary in order to make a determination as to the extent of complainant's chemical sensitivity condition and need for an accommodation. The agency also found that complainant failed to show that it denied her an accommodation in reprisal for filing the June 1995 grievance.

As for her other bases, the agency found that complainant failed to establish that she was discriminated against as alleged. Assuming that complainant had established a prima facie case of discrimination on the bases of race, sex and reprisal when her AWS was removed upon her return from sick leave in September 1995, the agency found it had articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to prove were pretext for discrimination. Specifically, management officials testified that complainant was removed from her AWS in order for her to maintain continuity within the departments which her position oversaw. Although others were permitted to stay on their AWS, the agency maintained that the comparatives were able to accomplish their unit's mission and ensure watch coverage, whereas complainant was not.

With respect to complainant's claim of a hostile environment based on disability and reprisal, complainant alleged that the following incidents constituted a hostile working environment: (a) supervision of the allegedly difficult employee, the TS; (b) detail to the AS position; (c) the handling of her June 1995 grievance; (d) a plan to move complainant from her office to an office shared by the TS; (e) the removal of her AWS in September 1995; (f) the imposition of a requirement for her position to maintain a medical clearance for operational currency at which time complainant was taking a disqualifying medication for stress; and (g) the November 1995 memorandum detailing the plan to permanently reassign her, or to terminate her.

In its decision, the agency found that complainant failed to establish a prima facie case of a hostile work environment, in that she failed to show that most of the incidents alleged, with the exception of one, were as a result of her disability. However, the agency did find that complainant's allegation relating to her proposed permanent reassignment or termination in November 1995 was in fact related to her disability, in that the November 1995 memorandum specifically referenced complainant's illness, sick leave, and disqualifying medication as related to the proposed actions. The agency also found that complainant had established a prima facie case with respect to her claim of a hostile environment based on reprisal. Specifically, the agency found that the agency knew complainant had engaged in prior EEO activities; indeed, the agency acknowledged there was no dispute as to the fact that complainant had requested reasonable accommodations in May 1994, August 1994, and October 1995, as well as when she filed a grievance in June 1995. Furthermore, the agency found that the totality of the actions alleged by complainant as creating a hostile work environment were sufficiently severe or pervasive enough to alter the conditions of her employment.

The agency then analyzed whether it had articulated legitimate, nondiscriminatory reasons for the incidents complainant alleged constituted a hostile work environment. Specifically, the ATM testified that complainant was detailed to the AS position in May 1995 according to a facility revitalization plan wherein Area Supervisors would rotate on 120-day details into complainant's position which would "facilitate closer supervision from the AATM and provide an opportunity for [complainant] to gain and enhance skills and abilities necessary to effectively function in a challenging supervisory capacity." ROI at ex. 5. However, the ATM testified that the plan never materialized. Furthermore, complainant did not serve her detail as an AS because she went out on sick leave due to a stress related illness from May until September 1995. With respect to the removal of complainant's AWS, the ATM and the AATM testified that complainant's AWS was removed because of a need to restore "continuity" of the two departments supervised by complainant. As the AATM and the ATM testified, the imposition of the medical clearance requirement was imposed as a result of the facility's revitalization plan. Finally, the agency explained that the plan to move complainant into the office with the TS, as well as the plan to reassign permanently or terminate complainant pursuant to the November 1995 memo, did not ultimately occur.

The agency found that complainant had failed to prove, by a preponderance of the evidence, that the agency's reasons for these actions were pretext for discrimination. It is from this decision that complainant now appeals.


On appeal, complainant contends that her MCS is a disability and that the agency failed to accommodate her. Furthermore, complainant contends that the ATM created a hostile work environment by refusing to stop wearing perfume, and in fact kept a bottle of perfume on her desk as a symbol of her refusal. Complainant also argued that the agency failed to show that the removal of the TS from complainant's supervision or a fragrance free environment would cause an undue hardship. In response to complainant's appeal, the agency argues that complainant failed to appeal the remaining issues in her complaint, and that complainant's appeal only deals with her alleged disabilities. The agency also maintains that complainant is not an individual with a disability and that she failed to submit appropriate documentation when requested. Furthermore, despite its conclusion to the contrary in its FAD, the agency now argues that complainant's allegations regarding the hostile work environment were not severe or pervasive enough to alter the conditions of her work environment.

On December 6, 1996, the Commission received further information from complainant entitled, "Complainant's Brief in Opposition to the Agency's Motion to Dismiss." Therein, complainant argued that she had presented sufficient information of her MCS, as well as her requests for accommodations. Furthermore, complainant submits medical documentation from her physicians detailing the effects of MCS. Complainant also submits further documentation from her Department of Labor Notice of Traumatic Injury and Claim for Continuation of Pay. These documents were not contained in the investigatory record and are dated from March 1996 through February 1997. In response, the agency argues that the regulations do not provide for a reply brief, and even if they did, such documents are too late, and should therefore not be considered by the Commission.


Discrimination Based on Disability

As a threshold matter, complainant bears the burden to establish that she is a "qualified individual with a disability" within the meaning of the Rehabilitation Act.<4> An "individual with a disability" is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment. 29 C.F.R. † 1630.2(g). Major life activities include, but are not limited to, caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. † 1630.2(i). A "qualified" individual with a disability is one who satisfies the requirements for the employment position he/she holds or desires and can perform the essential functions of that position with or without reasonable accommodation. 29 C.F.R. † 1630.2(m).

(A) Multiple Chemical Sensitivity

Based on the entire record before us, we find that complainant is an individual with a disability, MCS, in that she has an impairment which substantially limits a major life activity, breathing. Here, the cumulative medical evidence reveals that complainant is substantially limited in her overall health and ability to breath when she comes into contact with fragrances and other chemical fumes. For complainant, fumes which would not significantly affect an average person in society are a substantial problem. Specifically, complainant suffers from wheezing, reoccurrence of sinusitis and bronchitis, coughing, tearing, sneezing, and chest congestion when she comes into contact with fragrances, jet and paint fumes. The effects of her disability has required dozens of appointments with her physician. Witnesses testified that when complainant came into contact with fragrances or paint fumes she had trouble breathing, coughed, and suffered problems with her voice. Furthermore, complainant's physician reports that recovery from the effects of fumes for complainant may take weeks to complete. See e.g. Carl v. Department of Defense, EEOC Appeal No. 01985333 (March 19, 1999) (severe allergic anaphylactic reactions due to a variety of chemicals substantially limited major life activity of working); Scalese v. Department of the Air Force, EEOC Petition No. 03960050 (July 10, 1996) (individual with MCS substantially limited in major life activity of working, but not a qualified person with a disability in that he could not show that he could perform the essential functions of the job with or without an accommodation).

Complainant must also show that she is a qualified person with a disability. A qualified individual with a disability is one who, with or without reasonable accommodation, can perform the essential functions of the position in question and meets the experience and/or educational requirements for the position. 29 C.F.R. †1630.2(m). Here, there is no dispute that complainant is qualified in that the ATM testified that complainant is an exceptional employee. Furthermore there is no dispute that management officials knew of complainant's impairment when it took the alleged actions against her.


With respect to complainant's claim of disability discrimination based on depression, we agree with the agency that complainant has failed to show that her depression substantially limits a major life activity. Here, the medical evidence reveals that complainant suffered from depression during the summer of 1995, and was out on sick leave as a result. During that time, complainant testified that she suffered from insomnia and stress. Her medical records indicate that during this time she cried a lot, suffered from headaches, and had little energy or motivation. According to the record, complainant has been back at work, and there is no evidence indicating that her depression is long term or that it has reoccurred for a substantial period of time. As such, we do not find that her depression rose to the level of a disability.

After a review of the record, we also find complainant failed to present sufficient evidence that, because of her depression, the agency regarded her as a individual with a disability. In addition, complainant failed to show she has a record of a disability because of her depression.

Failure to Accommodate

An agency is required to make reasonable accommodations to the known physical and mental limitations of qualified individuals with disabilities unless it can demonstrate that doing so would impose an undue hardship upon its operations. 29 C.F.R. †1630.9(a). Reasonable accommodation may include job restructuring, reassignment to a vacant position, or modified work schedules. 29 C.F.R. †1630.2(o). Factors to consider in determining whether any of these accommodations would impose an undue hardship include the size and budget of the program, the type of operation and the nature and cost of the accommodation. 29 C.F.R. †1630.2(p).

As early as May 1994, complainant requested to work in an environment free from fragrances due to her MCS. Although many employees stopped wearing fragrance in response to an August 1995 memorandum by the ATM which requested employees refrain from wearing fragrant products, the ATM continued to wear fragrances when in contact with complainant. According to complainant, this activity, as well as the ATM's practice of keeping a bottle of perfume on her desk as a symbol of her refusal, contributed to a hostile work environment.

After a review of the record, we find complainant's request for an entirely fragrant free environment was not a reasonable request for accommodation, and would have imposed an undue hardship on the agency's operation. Complainant, whose office is located at Cleveland Hopkins International Airport, requested that she be provided with an environment free from fragrances, including perfume. However, she failed to explain how her employer could provide her with an office environment free from all fumes, including jet fuel, exhaust, cleaning supplies, other perfumed personal products, as well as all other fumes associated with an office comprised of at least a dozen individuals. Enforcing such an accommodation would be impractical, especially when considering the employer's obligation to limit and rid a large number of scent producing agents one finds in the workplace.

Our analysis does not end there, though. The Interpretive Guidance on Title I of the Americans with Disabilities Act (1991) (Guidance), 29 C.F.R. Part 1630, addresses the process for providing a reasonable accommodation. It notes that once an individual makes a request for an accommodation, "the appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the qualified individual with a disability." Guidance, 29 C.F.R. †1630.9. In other words, once an accommodation is properly requested, the responsibility for fashioning a reasonable accommodation is shared between the employer and employee. Id. The record reveals that in addition to her request for a fragrance-free environment, complainant requested an air purifier in November 1994 and October 1995. Although complainant admits that the AATM provided his own personal air purifier, complainant maintained that this did not perform as well as could be expected, and that she is not provided the necessary supplies for the air filter.

The facts of this case illustrate a complete breakdown of the interactive process necessary in formulating a reasonable accommodation. Here, the agency itself admits that complainant requested an accommodation to her MCS as early as May 1994, yet it failed to engage in any discussions whatsoever as to how to accommodate her disability. For example, the ATM averred in her affidavit that "[she] was aware that [complainant] was sensitive to [fragrances] and wanted accommodations made. It wasn't a direct request for me to stop wearing perfume. It was a request for how to accommodate her condition." ROI at ex. 8.

If there were any question as to whether complainant required a particular accommodation, the agency should have solicited additional medical information from her much earlier than it actually did. See, e.g., Randel v. Dept. of the Navy, EEOC Petition No. 03960061 (August 8, 1996) (agency on notice of disability required to solicit necessary additional information from employee). Instead, the agency ignored its obligation until complainant submitted a "formal" request for an accommodation. At that time, agency officials maintained that they did not have medical documentation, despite the fact that she submitted documentation in June 1994, and despite testimony that they were "acutely aware" of her health problem and desire for a fragrance free environment. See ROI at ex. 9, p. 2. In that regard, we remind the agency that when requesting an accommodation, an individual may use "plain English" and need not mention the ADA or use the phrase "reasonable accommodation." See Enforcement Guidance: Reasonable Accommodation & Undue Hardship, EEOC Notice No. 915.002 at p. 8 (March 1, 1999).

In light of these facts, we find that the agency failed to properly investigate whether an accommodation could be made. If it was determined that the requested accommodation, a fragrance free environment was impossible, it was incumbent on the agency to engage in an interactive process to determine, what, if any accommodations could be provided so that complainant could perform the essential functions of her job. Specifically, the record is devoid of any evidence as to whether the agency investigated whether complainant could have worked at home, been given the appropriate air filter, or could have had an office where contact with others could have been kept at a minimum.

Although we find that complainant's request for an entirely fragrance free work environment would pose an undue hardship on the agency, the agency's responsibility did not end there, as discussed above. We further find the agency's argument that complainant failed to provide medical documentation in late 1995 to be disingenuous given the weight of evidence which reveals that the agency was well aware of complainant's illness and need for an air filter. As such, we find that the agency discriminated against complainant when it denied her a reasonable accommodation of an appropriate air filter.

Hostile Work Environment Based on Reprisal

It is well-settled that harassment based on an individual's prior EEO activity is actionable. See Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000); Richardson v. New York State Dep't. of Correctional Serv., 180 F.3d 426, 446 (2nd Cir.1999) ("co-worker harassment, if sufficiently severe, may constitute adverse employment action so as to satisfy the second prong of the retaliation prima facie case"); Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 886 (7th Cir.1998) ("retaliation can take the form of a hostile work environment"); Gunnell v. Utah Valley State College, 152 F.3d 1253, 1264 (10th Cir.1998) ("co-worker hostility or retaliatory harassment, if sufficiently severe, may constitute 'adverse employment action' for purposes of a retaliation claim"). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her membership in that class and her prior EEO activity; (3) the harassment complained of was based on her disability and/or her prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).

Complainant alleged that she was subjected to a retaliatory hostile work environment because she assisted a co-worker with her EEO complaint and because she filed a grievance in June 1995. After a review of the record, however, we find complainant failed to present sufficient evidence that established agency officials were aware that complainant assisted another employee with her EEO complaint. We also find complainant failed to establish she was subjected to retaliatory harassment based on her June 1995 grievance. In that regard, we note complainant's grievance dealt with her reassignment to the AS position, and was not based on discrimination.

Despite this, we do find that complainant established that she was subjected to a hostile work environment based on protected activity. A request for reasonable accommodation of a disability constitutes protected activity under Section 503 of the Americans With Disabilities Act. EEOC Guidance on Investigating, Analyzing Retaliation Claims, EEOC Compliance Manual Notice No. 915.003 (May 20, 1998). After a careful review of the record, we find that the ATM and AATM perpetuated an antagonistic position towards complainant in light of her repeated requests for reasonable accommodation. As discussed above, complainant's multiple accommodation requests were not responded to appropriately. Finally, we note that the ATM did not dispute complainant's contention that contemporaneous with the November 1995 threat of reassignment or termination, the ATM told complainant that she was "not loyal to management."

We also find, as did the agency, that certain incidents alleged by complainant constituted harassment, and were severe or pervasive enough to alter the conditions of her employment. Specifically, we find that the agency's repeated failure to accommodate complainant's MCS, as well the removal of her alternate work schedule following her extended absence, coupled by the threat of permanent reassignment or termination were sufficiently severe to alter the terms and conditions of complainant's work conditions. As such, we find complainant established that she was subjected to harassment based upon protected activity.

Removal of Alternate Work Schedule Based on Race, Sex or Reprisal

After a careful review of the entire record, and after applying the three-tiered analytical framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981), we find that the agency properly found that complainant was not discriminated against on the bases of race or sex when her alternate work schedule was taken away. Complainant failed to show that her AWS was removed based on a discriminatory motive based on her race or sex.

However, we do find the record supports complainant's contention that her alternative work schedule was removed due to her requests for reasonable accommodation. Complainant, who had repeatedly requested that management accommodate her disability, was removed from her AWS upon her return from sick leave. Although the agency contends that all employees were removed from the AWS, the overwhelming evidence in the record does not support their position. Rather, the record reveals that the Assistant Manager for Automation, as well as Area Supervisors and Administrative staff retained their AWS. In fact, the AATM reported to the agency's investigator that, "the only person we felt was necessary at that time to mandate schedule changes was [complainant]." ROI at ex. 10. Although the agency argues that complainant's AWS was removed to restore "continuity," they failed to produce a scintilla of evidence that supported their conclusion. Rather, both the ATM and AATM averred that complainant was an exceptional employee who scored 2.85 out of a possible 3 points on her performance appraisal. The agency failed to show that complainant's department suffered from any continuity problems. As such, we find complainant proved, by a preponderance of the evidence that the agency removed her from the AWS program based on her participation in protected activity.


In conclusion, we find that the agency discriminated against complainant based on her disability (Multiple Chemical Sensitivity) when the agency failed to accommodate her disability. We further find that the agency subjected complainant to a retaliatory hostile work environment. In order to remedy complainant for its discriminatory actions, the agency shall comply with the following ORDER.


The agency is ordered to take the following action:

Within thirty (30) calendar days from the date this decision becomes final, the agency shall provide complainant with an upgraded Air Purification System equivalent to one of the following: an NSA Model 7000A or Pure Air Cloud-9 Model 300; or a system deemed appropriate by engineering standards and/or as deemed necessary for proper clean air standards by appropriate consultants.

The issue of compensatory damages is REMANDED to the agency. Thereafter, the agency shall issue a final action in accordance with 64 Fed. Reg. 37,644, 37,657-58 (1999) (to be codified at 29 C.F.R. † 1614.110). The agency shall submit copies of the final agency action to the Compliance Officer at the address set forth below.

Within forty five (45) calendar days from the date this decision becomes final, the agency shall restore any leave used and/or wages and other benefits lost due to the agency's failure to accommodate complainant's MCS.

Within thirty (30) calendar days from the date this decision becomes final, the agency shall restore complainant to the Alternative Work Schedu le Program.

The agency shall take appropriate preventative steps to ensure that no employee is subjected to harassment and to ensure that appropriate steps are taken immediately after management is notified of any such harassment.

The agency shall post a notice in accordance with the paragraph below.

The agency shall immediately provide training to the Air Traffic Manager and Assistant Air Traffic Manager concerning their duties and obligations pursuant to the Rehabilitation Act and Title VII.

The agency is further directed to submit a report of compliance, as provided in the statement entitled, "Implementation of the Commission's Decision." The report shall include supporting documentation of the agency's calculation of back pay and other benefits due complainant, including evidence that the corrective action has been implemented.


If complainant has been represented by an attorney (as defined by 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter referred to as 29 C.F.R. † 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. † 1614.501(e). The award of attorney's fees shall be paid by the agency. The attorney shall submit a verified statement of fees to the agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. † 1614.501.


The agency is ORDERED to post at its Cleveland, Ohio facility copies of the attached notice. Copies of the notice, after being signed by the agency's duly authorized representative, shall be posted by the agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.


Compliance with the Commission's corrective action is mandatory. The agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the complainant. If the agency does not comply with the Commission's order, the complainant may petition the Commission for enforcement of the order. 29 C.F.R. † 1614.503(a). The complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter referred to as 29 C.F.R. †† 1614.407, 1614.408), and 29 C.F.R. † 1614.503(g). Alternatively, the complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. †† 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. † 2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. † 1614.409).


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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter referred to as 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).

This is a decision requiring the agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you receive this decision. In the alternative, you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you filed your complaint with the agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.


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").


September 18, 2000
. Date      

Frances M. Hart
Executive Officer
Executive Secretariat



For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to complainant, complainant's representative (if applicable), and the agency on:

Date           Equal Opportunity Assistant

An Agency of the United States Government

Notice is posted pursuant to an Order by the United States Equal Employment Opportunity Commission dated ___________ which found that a violation of Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. †791 et seq., and Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. † 2000e et seq. have occurred at this facility.

Federal law requires that there be no discrimination against any employee or applicant for employment because of that person's RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect to hiring, firing, promotion, compensation, or other terms, conditions, or privileges of employment.

The Department of Transportation, Federal Aviation Administration, Cleveland Automated Flight Service Station, (hereinafter referred to as "facility") supports and will comply with such Federal law and will not take action against individuals because they have exercised their rights under law.

The facility has been found to have violated the Rehabilitation Act and Title VII when it failed to accommodate an individual with a disability; subjected the individual to a hostile work environment based on reprisal; and removed the individual from participating in the Alternate Work Schedule Program based on reprisal. The facility was ordered to provide the individual with an accommodation for her disability, restore any leave used, and restore her to the Alternate Work Schedule Program. The facility was also ordered to provide the complainant with the opportunity to establish her entitlement to compensatory damages, pay her reasonable attorney's fees, provide training to the responsible officials, and post this notice.

The facility will not in any manner restrain, interfere, coerce, or retaliate against any individual who exercises his or her right to oppose practices made unlawful by, or who participates in proceedings pursuant to, Federal equal employment opportunity law.


Date Posted: ____________________

Posting Expires: _________________

29 C.F.R. Part 1614


  1. According to testimony in the record, complainant apparently placed the TS on a Performance Improvement Plan (PIP) due to performance deficiencies. Later, the ATM removed the TS from the PIP and did not support complainant's position with respect to her supervision of the TS. Furthermore, complainant alleges that despite repeated complaints to the ATM that the TS had physically threatened her, her complaints went unaddressed by management.


  2. It appears that the poor interpersonal relationship between complainant and the TS may have payed a role in the decision to implement the revitalization plan, as the plan also provided for the temporary reassignment of the TS and the rotation of other employees into her position.


  3. In order to maintain currency, Area Supervisors were required to obtain a medical clearance.


  4. 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. Since that time, the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints of disability discrimination. These regulations can be found on EEOC's website:

--- End forwarded message ---






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