01975646
02-18-2000
David G. Decatur, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
David G. Decatur v. Social Security Administration
01975646
February 18, 2000
David G. Decatur, )
Complainant, )
) Appeal No. 01975646
v. ) Agency No. SSA427-93
)
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
)
DECISION
Complainant filed a timely appeal from the agency's final decision
denying his equal employment opportunity (EEO) complaint of unlawful
employment discrimination. His complaint alleged discrimination on the
basis of physical disability (respiratory problems aggravated by 'sick
building syndrome'), in violation of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791, et seq.<1> Complainant alleged he was
discriminated against when he was refused reasonable accommodation for
his disability. The appeal is accepted in accordance with EEOC Order
No. 960.001. For the following reasons, the Commission AFFIRMS the
agency's final decision.
Background
The record reveals that during the relevant time, complainant was employed
as a Claims Representative GS-11 at the agency's Warfield Road, Richmond,
Virginia facility.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a formal complaint on March 22, 1993.
At the conclusion of the investigation, complainant received a copy
of the investigative report(s) and requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a
recommended decision finding no discrimination.<2> She found that the
complainant failed to demonstrate that he was 'disabled' within the
meaning of 29 C.F.R. �1630.2(j)(1)(ii).<3> More specifically, the AJ
determined that the complainant had a physical impairment but he failed
to establish he was substantially limited in a major life activity such
that he was entitled to a reasonable accommodation. The AJ concluded that
the complainant was not significantly restricted in breathing, sleeping
and working when compared to the average person. She determined he had
virtually no limitations because he was still able to hike and exercise
and did not miss much time from work aside from doctor's appointments.
The AJ noted that the complainant's work performance had not been limited
and that he still received excellent performance appraisals during the
time in question.
She also concluded that even if the complainant were legally disabled,
the agency had made reasonable efforts towards an accommodation. The AJ
found that the agency arranged for regular carpet cleaning, inspected
the heating and air conditioning system and attempted to carry out
the complainant's request to keep the door to the computer room closed.
The agency also allowed the complainant to relocate his desk away from the
room with the offending fumes. Finally, the complainant was temporarily
relocated to another location which ultimately became his permanent
work station along with the rest of the office.
The agency's final decision adopted the AJ's recommended decision.
On appeal, complainant contends that the AJ erred in her determination
that the complainant was not substantially limited in his ability to sleep
and work. He contends that it was clearly indicated he was limited in his
ability to work because he took 41 days of leave related to his condition.
He also contends he was regarded as disabled by the agency because he was
granted liberal sick leave when he was ill from the building air quality.
The complainant argued that because he was disabled within the meaning
of the law, the agency's efforts to accommodate him were inadequate.
He argued that the agency fell short by failing to test his work area
for mold, failing to adjust the fresh air intake in the office, and
failing to relocate him far enough away from the source of the odors.
The complainant also contested the agency's initial refusal to transfer
him without medical documentation.
Analysis and Findings
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
administrative judge will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as "such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion."
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted).
After a careful review of the record, the Commission finds that the
AJ's decision was based on a sound interpretation of the relevant facts,
appropriate regulations, policies, and laws. She noted in her findings of
fact that the complainant suffered from watery eyes, headaches, fatigue,
dizziness, forgetfulness and chest pains as a result of his reaction
to the air quality in his office. She concluded as a matter of law,
however, that these symptoms did not rise to the level of a substantial
limitation on a major life activity. The AJ based her conclusion on the
fact that the complainant appeared able to engage in physical activity as
he had prior to his reaction and that his work performance did not suffer.
She also noted the complainant was not required to take sick leave except
for doctor's appointments.
In addition, we note from our review of the record, that the complainant's
physician considered the complainant's condition to be "mild", and he was
not able to conclude that the complainant's condition adversely affected
his ability to exercise. Moreover, the complainant did not seek medical
treatment until several months after the onset of his symptoms when the
agency requested medical documentation of his condition. This fact
greatly detracted from his claim that he was substantially limited in
his ability to work, breathe. etc.
We have found that persons with allergies who are affected by
'sick building syndrome' are disabled within the meaning of the law.
See Fulgham v. Department of the Navy, EEOC No. 01883383, February 24,
1989)(Acute infectious sinusitis, allergic rhinitis is a substantial
limitation on breathing and working); but see, Veazie v. U.S. Postal
Service, EEOC No. 01971183 (June 2, 1999)(Sinusitis, bronchitis and
allergies to mold, dust not substantial limitation on a major life
activity). The decision whether an individual is substantially limited
in a major life activity is necessarily a case-by-case determination.
EEOC Compliance Manual,Vol.2, EEOC Order 915.002, Section 902, "Definition
of the Term Disability"(March 14, 1995). Based on the record before us,
we cannot conclude that the AJ erred in her conclusions regarding the
complainant's particular condition.
Because we affirm the AJ's determination that the complainant was not
substantially limited in a major life activity, we also affirm the
determination that the complainant is not disabled within the meaning
of the law. Consequently, we need not review in depth her analysis of
the accommodations provided to the complainant.
Conclusion
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
2/18/00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
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 Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to
all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also be
found at the Commission's website at WWW.EEOC.GOV.
2Because the Administrative Judge's decision was issued prior to the new
regulations, her decision will be referred to as a recommended decision.
3The 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: WWW.EEOC.GOV.