|UNITED STATES OF AMERICA
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
IN RE: THE MATTER OF:
and Case No. EEOC 054-086-X0097
THE VETERANS ADMINISTRATION
This matter came on to be heard before The Honorable Martin K. Magid, Hearing Examiner, at Room 1304, MacNamara Building, Detroit, Michigan, on Friday, September 5, 1986, commencing at 8:30 a.m.
On Behalf of Complainant:
On Behalf of Respondent:
Mr. Franklin Winslow
Mr. Joseph Wiley, Observer
P R O C E E D I N G S
326Pursuant to the Equal Employment Opportunity Commission approval of decisions from the bench in federal sector complaint hearings, I am hereby informing you that I have determined that the instant complaint is appropriate for the issuance of a bench decision based on the following:
One: The complaint involves clearly defined issues;
Two: The investigation contains all relevant documents and statements and any material defects have been cured; and
Three: The complaint involves the disparate theory of discrimination.
Therefore, I will now proceed to render my recommended decision in the instant complaint on the record:
Pursuant to Section 1613.218 of the Commission's regulations, a hearing was conducted on September 4, 1986 in the Patrick V. MacNamara 327Federal Building, Detroit, Michigan, on the discrimination complaint filed by the Complainant Lauren L. Hall against the Veterans Administration, hereinafter the "V.A." or the "Agency."
She alleged that she was discriminated against because of her physical handicap when the Agency failed to provide her with a smoke free working area.
Four witnesses testified at the hearing. The following is the chronology of events which led to this hearing:
One: EEO counseling was sought by the complainant on March 28, 1985;
Two: The formal complaint was filed on April 17, 1985;
Three: The complaint was investigated from November 17 through November 22, 1985, and an informal settlement was attempted;
Four: A proposed disposition was issued on April 7, 1986; and
Five: A hearing was requested by the Complainant, and on April 8, 1986, the services of an Examiner were requested by the Agency.
The sole issue involved in the 328instant complaint is as follows:
Was the Complainant discriminated against on the basis of physical handicap, obstructive lung disease when the agency failed to provide her with a smoke free work area.
In any judicial or administrative proceeding involving the charge of discrimination, it is the burden of the Complainant to initially establish that there is some substance to her allegation of discrimination.
In order to accomplish this burden, the Complainant must establish a prima facie case of discrimination. McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973); Furnco Construction Company versus Waters, 438 U.S. 567 (1978).
This means that the Complainant must present a body of evidence such that were it not rebutted, the tryer of fact could conclude that unlawful discrimination did occur.
If the Complainant meets her burden of presenting a prima facie case, then the Agency has the burden to produce admissible evidence of some legitimate, nondiscriminatory reason for its action.
329If the Agency does so, the Complainant has the burden to demonstrate that the Agency's reason is, in actuality, not credible or is a pretext for discrimination. Texas Department of Community Affairs versus Burdine, 450 U.S. 248 (1981).
Special considerations in cases involving handicap: Employment discrimination against a physically or mentally handicapped federal employee is prohibited under sections 501 and 504 of the Rehabilitation Act of 1973, as amended; 29 USC, Section 791 and 794 and the EEOC's regulations in 29 CFR 1613.701, et seq.
The provisions of the Rehabilitation Act are patterned after Title VII of the Civil Rights Act of 1964, as amended, 42 USC 2000(e), et seq. See Rogers versus Frito-Lay, Incorporated, 611 Fed. 2d, 1074, 1081 (Fifth Circuit 1980).
Moreover, much Title VII case law is applicable to cases involving discrimination against the handicapped. See Prewitt versus U. S. Postal Service, 662 Fed. 2d 292, 305, Note 19 (Fifth Circuit 1981).
Under Section 706(6) of the Rehabilitation Act, 29 USC 706(6) and 29 CFR 330 1613.702(a), a handicapped person is defined as any person who, one, has a physical or mental impairment which substantially limits one or more of such person's major life activities; two, has a record of such impairment; or, three, is regarded as having such an impairment.
Also, the EEOC regulations at 29 CFR 1613.702(f), defines the term "qualified handcapped person" as follows:
"Qualified handicapped person means with respect to employment, a handicapped person who with or without reasonable accommodation can perform the essential functions of the position in question without endangering the health and safety of the individual or others and who, depending upon the type of Appointing Authority being used, one, meets the experience and/or education requirement (which may include passing a written test) of the position in question; or, two, meets the criteria for appointment under one of the special appointing authorities for handicapped persons."
The legislative history of the Rehabilitation Act demonstrates that Congress intended and expected that the federal government
331would be a model Employer of handicapped persons and would take affirmative action to hire and promote them. Senate Report Number 93-318, 93rd Congress, Second Session at 49 (1973).
The Rehabilitation Act in Section 501 requires all Government agencies of the Executive Branch and the Postal Service to establish comprehensive affirmative action plans [f]or hiring, placing and advancing handicapped individuals. 29 USC 791(b).
In interpreting the Rehabilitation Act, the Supreme Court in Southeastern Community College versus Davis, 442 U.S. 397, 441 (1979) stated that a comparison of Sections 501 and 504 of the Rehabilitation Act, 29 USC 791 and 794 demonstrated, "That Congress understood accommodations of the needs of handicapped individuals may require affirmative action."
The duty of a federal employer to accommodate the special needs of handicapped employees is provided for at
29 CFR 1613.704, which states:
(A) "An agency shall make reasonable accmmodations to the known physical or mental limitations of a qualified handicapped 332applicant or empoyee unless the Agency can demonstrate that the accommodation would impose an undue hardship on the operation of its program."
(B)"Reasonable accommodations may include, but shall not be limited to (1) making facilities readily accessible to and useable by handicapped persons; and (2) job restructuring, part-time and modified work schedules, acquisition or modification of examinations, the provision of readers and interpreters and other similar actions."
The principles of accommodating handicapped employees are more stringent than those regarding religious practices, as expressed in Trans World Airlines versus Hardison, 432 U.S. 63 (1977).
As the Court pointed out in Prewitt versus U. S. Postal Service, 662 Fed. 2d, 292, 308 Note 22 (Fifth Circuit 1981), "Congress clearly intended the federal government to take measures that would involve more than a de minimis cost" to accommodate qualified handicapped applicants or employees.
Although a strict McDonnell Douglas analysis is not used in handicap cases, the 333Complainant is nevertheless required to establish a prima facie case, Pushkin versus Regents of the University of Colorado, 658 Fed. 2d 1372, 1385 to 1387 (Tenth Circuit 1981).
Each Complainant's allegation of discrimination is premised upon a peculiar set of facts. Therefore, the evidence required to establish a prima facie case must vary according to the nature of the handicap, the nature of the alleged handicap discrimination and the specific accommodation requested.
The guideliness of McDonnell Douglas modified to apply to handicap cases, such as the instant Complaint would require the following for a prima facie case:
The Complainant must show, (1) she is a member of the protected class of handicapped individuals; (2) she is a "Qualified handicapped individual," who possess the required background and ability to perform with or without reasonable accommodation, the essential functions of the position in question without endangering her health or safety or that of others; (3) Complainant requested the Agency to accommodate her handicap; (4) the agency failed to provide 334the requested accommodation.
If the Complainant meets this initial burden, the Agency then has the burden to prove its failure to accommodate is for a legitimate nondiscriminatory reason.
One such reason would be that the required accommodation if implemented would impose an undue hardship on the operation of the agency's program.
Other reasons could be unrelated to the Complainant's handicap.
Once the Agency presents admissible evidence that reasonable accommodation is not possible or practicable or that there was an independent reason for its action, the Complainant bears the burden of coming forward with evidence that suggests that accommodations can reasonably be made; that the Employer's decison was based on unfounded assumptions or that the independent ground asserted unreasonably precluded consideration of the handicap. See Prewitt, 662 Fed. 2d 292 (Fifth Circuit, 1981).
Complainant subbmitted her application to the agency on August 6, 1984. On September 17, 1984, the Agency's personnel officer informed Michigan Rehabilitation Services, a state agency, 335it had selected Complainant for a permanent clerk-typist position.
Since Complainant was being hired under a program for severely handicappeded persons, the Michigan Agency was requested to provide medical information reflecting the nature and extent of her disability.
The Michigan Agency was also asked for its recommendation, if any, for job and work site modifications and for its comments regarding her limitations which would affect her work or would help to assure a successful ollacement.
On September 21, 1984, the Agency's personnel management specialist wrote a memorandum to "Appointment Documentation File." The memorandum stated that appointment approval was based on the recommendation of the selecting official and the state Agency certification that the Complainant was capable of performing the duties of the position.
The memorandum did not state that her employment depended on the modifications suggested by the Michigan Agency or its other comments on her limitations.
An agency witness testified her being 336hired did not depend on the contents of those remarks if any. The state Agency submitted Complainant's medical data and its certificate of employability to the Agency on October 3, 1984.
In response to the V.A.'s request for comments on the Complainant's limitations, the state Agency wrote the following:
"She should avoid a smoking atmosphere, since it will affect her condition which is an allergy and problems with the upper respiratory tract."
The medical data submitted to the V.A. showed she had obstructive lung disease.
Under the heading, "Nature of Disability," the state Agency provided the following information, "Ulcerative colitis with ileostomy. Avoid dusty, smokey work setting."
Complainant testified and an Agency witness confirmed that she told him at a pre-hiring inveterview that she had to avoid tobacco smoke. He did not ask her for details concerning this problem.
On September 24, 1984, Complainant began work as a clerk-typist in the Agency's Regional Office in the Patrick V. McNamara Federal Building, Detroit, Michigan.
337She was placed in the Centralized Transcription activity, the typing pool, a large room in which approximately 25 people were located.
According to her supervisor and the EEO Counselor, at least ten persons had previously complained about the adverse effects of tobacco smoke on the atmosphere in that room. The adverse effects of secondary smoke on persons with lung disease and others are well documented. See Complainant's Exhibits 7, 12, and 18.
Complainant immediately began to suffer what she termed "extreme physical and emotional distress."
She describes the physical reactions as "shortness of breath, headaches, nausea, disorientation and sinus irritation." She stated these problems have a negative effect on her work performance, since she has trouble concentrating, makes excessive errors, uses excessive sick leave and has a lower production rate.
The Agency also points out that a great deal of overtime work is necessary in Complainant's unit. Although complainant desires to work overtime, she cannot do so if smokers are
338working, since the ventilation in the building is normally shut down during off duty hours.
When Complainant informed Agency management of the severe effects of the tobacco smoke, she requested a smoke free working environment.
However, the agency refused that request. Her second level supervisor, a smoker, testified it would be unreasonable for him to approach his supervisor about banning smoking or to ask about special wall construction.
The Agency tried several other lesser approaches to the problem. Complainant was moved to different work stations and smokers were moved to different desks, all in the same room. Fans were used in an attempt to divert the tobacco smoke away from Complainant.
Her fellow employees were requested to voluntarily not smoke at their work places; however, her fellow employees continued to smoke.
There was credible testimony and other evidence in the Complaint file that suggests fellow employees engaged in harassment by deliberately smoking near Complainant.
The Director acknowledged that those 339who complained were laughed at, belittled and considered trouble makers. See Complaint file Exhibit B-10, Page 2 and Agency Exhibit 2.
Some employees did not voluntarily stop their smoking in the typing pool room and others increased their smoking. The Agency hired a clerk typist an alcoholic who uses smoking as a relaxant instead of alcohol.
When it hired him, the Agency did not make him aware of the Director's recently-issued memorandum asking for voluntarily limiting smoking.
The Agency's attempts to accommodate Complainant's impairment were not successful. One non-handicapped fellow employee described the situation as it existed after all of the Agency's attempts to . . . accommodate were as follows:
"The air circulation is bad and with people smoking continuously, the smoke seems to linger on. At times it is so bad, my eyes burn and even my lungs feel as if I just smoked a pack mayself. For any non-smoker, expecially someone with lung disease, it is very uncomfortable."
That employee goes on, "Smokers continue to smoke and no matter where you sit, the 340smoke is still there." Complaint file, Exhibit B-7, Page Two.
Another non-handicapped employee stated as follows:
"Anywhere you sit in there, you're going to gag from the smoke. There isn't any exhaust ventilation. It all stays in the unit. The only thing they could do that would help the situation would be to ban smoking in the unit." Complaint file, Exhibit B-9, Page Two.
For the following reasons the Examiner finds by a preponderance of evidence that Complainant established a prima facie case of discrimination on the basis of her physical handicap: . . .
341The final elements of a prima facie case in this context were satisfied when Complainant requested the accommodation of a smoke free work area and the Agency refused.
There are two facets to the Agency's proposed legitimate non-discriminatory reasons for its failure to accommodate Complainant:
One involves the defense that it 342would be too expensive to isolate the Complainant in order to provide her with a smoke free work area.
The second involves the Agency's claim that it would infringe on smokers' rights to prohibit smoking in the typing pool. This claim will be discussed first.
The Examiner is aware of no Constitutional provision, statute, regulation, court decision or contract which provides employees of the Agency with the right to smoke whenever and wherever they please during working hours.
Although the Agency's attorney argued [that] Court cases state that smokers have rights, he has provided no authority for that proposition or for the proposition that once smoking is allowed in a work area it must forever be a smoking area.
The examiner has found no cases to that effect; nor has the Examiner found any cases to the effect that smokers have rights.
Instead, the Agency provided testimony that at least two areas in which smoking was previously allowed were made non-smoking areas.
There can be no doubt that employees . . . 343have no more right to inflict the debilitating, harmful effects of that habit [brain damage] upon their fellow employees than they have to engage in any other behavior which affects others' health or productivity.
The Agency first argued that a smoking ban could be construed as a change in "past practices" which requires approval of the Union. Complaint file, Exhibit B-4, Page Three.
In later testimony, it was acknowledged that a no smoking policy could be implemented by giving the Union timely notice that it was going to take place.
The examiner finds this latter testimony to be an accurate statement of the pertinent provisions of the Agency's agreement with the Union. See Examiner's Exhibit 2, Article VI, Section six.
The Examiner also finds that the Union agreement at Article III, Section 1, renders itself as subordinate to the Rehabilitation Act and the EEOC regulations concerning federal agencies' obligation toward handicapped employees. Also see Ignacio v U. S. Postal Service, MSPB 344Docket Number SF 07520110438, EEOC Petition Number 0384005 (Special Panel Number 1, February 27, 1986).
A corollary of the Agency's smokers rights argument is its claim that fellow Complainant's employee whose handicap is alcoholism must be allowed to smoke "constantly" because he "wouldn't be able to function properly without his cigarettes." Complaint file at Exhibit B-6, Page Three.
However, a careful analysis of the regulations reveals the fallacy in this argument. A handicapped person is a "qualified handicapped person" if, and only if, he can perform the essential functions of the position without endangering the health and safety of others. 29 CFR 1613.702(f).
The alcoholic's constant smoking directly endangers the complainant's health and safety.
Complainant 's second level supervisor testified it has cost Complainant lost time and has reduced the unit's productivity.
Therefore, if he cannot perform the essential function of his position without
345endangering Complainant by his smoking, then he is not a qualified handicapped person, and he need not be accommodated to that extent. See, for example, Doe versus Region 13 Mental Health Retardation Commission, 704 Fed. 2d, 1402 (Fifth Circuit, 1983); Rehearing Denied, 709 Fed. 2d, 712 (Fifth Circuit, 1983) where the Court held that a mentally handicapped psychiatric social worker who had an exemplary work record and an acceptable attendance record was not a qualified handicapped person because her serious suicidal tendencies could convert a bias in favor of suicide to her patients.
The Examiner finds by a preponderance of the evidence that there is no legitimate basis for the agency's smokers rights argument nor is it nondiscriminatory, since it plainly discriminates against Complainant by having a detrimental effect on her handicap and ability to work
Scant evidence is available to support the Agency's claim that it would incur undue hardship if it was required to isolate Complainant in a smoke-free environment.
The Chief of the Administration Division, stated, "Changing the configuration of
346the walls in our GSA leased space would require GSA approval as well as the approval and funding from V.A. Central Office." Complaint file, at Exhibit B-4, Page Three.
However, neither he nor anyone else in the Agency took action to determine the cost of changing the configuration of the walls, nor did it seek GSA or V.A. Central Office approval for such construction.
In the absence of such inquiries, this defense must be considered hollow and a pretext for discrimination.
The Agency claims that Complainant should not prevail because it offered to transfer her to another position in a
smoke free environment and she refused the transfer. Notwithstanding Complainant's testimony and acknowledgment by the Agency that the new environment was not guaranteed to remain smoke free, there are two other reasons why this argument fails.
First, the EEOC regulations refer to one who can perform "The
essential functions of the position in question." 29 CFR 1613.702(f).
The position in question here is that
347of clerk typist, not teletypist. Complainant has no obligation to try out or to accept a transfer to that position. The obligation is on the Agency to accommodate her in the clerk typist position.
Second, the agency hired Complainant specifically for the clerk typist position.
It hired her pursuant to a special program for the handicapped with full knowledge and/or disregard of her handicap, her limitations and the
admonitions of Michigan Rehabilitation Services that she should work in a
smoke free atmosphere.
Under these conditions and under the mandate that federal agencies are to be model employers of the handicapped, the Examiner finds it fundamental that the Agency incurred an obligation to accommodate the handicap sufficiently so as to allow the Complainant to work at her occupation and not to cause the Complainant's impairment to become more debilitating.
The examiner finds the Complainant was not required to accept the teletypist position.
All the actions taken by the Agency
348here in an attempt to accommodate the Complainant may be described as de minimis. They were all ineffective.
As discussed above, it is required to do more for this qualified handicapped employee. Prewitt versus U.S. Postal Service, supra.
In conclusion, the Examiner finds by a preponderance of the evidence that the Agency failed to present legitimate non-discriminatory reasons for its failure to provide a smoke free working area from Complainant.
The Examiner has found the Agency's reasons to be non legitimate and not nondiscriminatory. The agency's reasons have also been found to be a pretext for discrimination on the basis of physical handicap.
Therefore, it must be concluded that Complainant was discriminated against on the basis of her physical handicap when the Agency decline her request for a smoke free work area.
Recommended Decision: This Complainant Examiner recommends a finding of discrimination.
Recommended Corrective Relief: The Examiner recommends that Complainant be provided
349immediately with a smoke free work area.
It is recommended that the typing pool room be designated as a no smoking area. If smoking in nearby areas under the control of the agency is found to be detrimental to Complainant's impairment it is recommended that those areas also be designated as no smoking areas.
It is recommended that the Agency strictly enforce the ban on smoking and that it post notices and otherwise inform its employees regarding progressive, mandatory penalties for violators.
It is recommended that if banning smoking in areas under the control of the Agency is insufficient to prevent harm to Complainant from the work area atmosphere, the Agency should install ventilating equipment or change the configuration of the walls, or both, so as to provide Complainant with a ventilated, smoke free atmosphere in which to work.
The Examiner also recommends that Complainant be compensated for overtime she could have worked since her employment began but did not due to the expected presence during overtime hours of fellow employees who smoke.
350Finally, the Examiner recommends that the Agency restore to Complainant's sick leave and annual, leave balances the amount of leave taken due to the adverse effect on Complainant of the smoky work atmosphere.
Complainant shall provide medical proof of the reason for these absences.
Notice: Pursuant to Secion 613.220(d) of Part 1613 of the Equal Employment Opportunity Commission's regulations, the Complaints Examiner's recommended decision, finding discrimination and the corrective action recommended therein shall become the final decision binding on the Agency if the has not issued a final decision, adopting, rejecting, or modifying the recommended decision by the latter of the following two dates: One, within 30 calendar days after the date the Agency receives the
recommended decision; or, two, within 180 calendar days of the date on
which the complaint was filed.
In such event, the Agency shall notify the Complainant that pursuant to Section 1613.220(d) of Part 1613 of the Equal Employment Opportunity Commission's regulation, the
351Complaints Examiner's recommended decision is the Agency's final decision, and furnish to her a copy of the findings, analysis and recommended decision of the Complaints Examiner under Section
1613.218(g), and a copy of the hearing record.
The Agency shall also notify the Complainant of writing of her right to appeal to the Commission and the time limits applicable thereto, and of her right to file a civil action as described in Section 1613.281.
Final Statement by the Complaints Examiner: The decision recommended above was based not only on the evidence submitted by the Complainant but also on the evidence submitted by the agency officials and any evidence which have been requested by this Complaints Examiner.
352. . . Whereupon the proceedings were concluded at 9:20 a.m."