                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SANDRA LYNN BROSIUS,                            DOCKET NUMBER
                  Appellant,                         AT-0752-13-7403-I-2

                  v.

     DEPARTMENT OF LABOR,                            DATE: August 17, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Archibald J. Thomas, III, Esquire, Jacksonville, Florida, for the appellant.

           Amy R. Walker, Esquire, Atlanta, Georgia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed her removal for medical inability to perform the essential functions of
     her position. Generally, we grant petitions such as this one only when: the initial
     decision contains erroneous findings of material fact; the initial decision is based
     on an erroneous interpretation of statute or regulation or the erroneous application

     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                        2

     of the law to the facts of the case; the administrative judge’s rulings during either
     the course of the appeal or the initial decision were not consistent with required
     procedures or involved an abuse of discretion, and the resulting error affected the
     outcome of the case; or new and material evidence or legal argument is available
     that, despite the petitioner’s due diligence, was not available when the record
     closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
     § 1201.115). After fully considering the filings in this appeal, we conclude that
     the petitioner has not established any basis under section 1201.115 for granting
     the petition for review.     Therefore, we DENY the petition for review and
     AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
     § 1201.113(b).

                                      BACKGROUND
¶2         The agency removed the appellant for medical inability to perform the
     duties of her Workers’ Compensation Assistant position.         Initial Appeal File
     (IAF), Tab 1; Refiled Appeal File (RAF), Tab 6 at 27-29. 2       In her subsequent
     appeal, the appellant challenged her removal and also argued that the agency
     discriminated against her by failing to accommodate her disability and retaliated
     against her for protected equal employment opportunity (EEO) activity.          IAF,
     Tab 1; RAF, Tab 1, Tab 11. After holding a hearing, the administrative judge
     affirmed the removal action and denied the appellant’s affirmative defenses.
     RAF, Tab 14, Initial Decision (ID).
¶3         The administrative judge found that the agency established that the
     appellant’s medical condition, an acute sensitivity to various chemicals and
     odors, rendered her unable to safely and efficiently perform the core duties of her
     position.   ID at 2-9.   He further found that the appellant’s only identified


     2
       On the appellant’s request, the administrative judge dismissed the appeal without
     prejudice, and the appellant refiled it in accordance with the administrative judge’s
     instructions. IAF, Tab 5; RAF, Tab 1.
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     accommodations, a scent-free environment or full-time telework, were not
     possible under the circumstances present and there were no vacant, funded
     positions to which she could be assigned. ID at 11-12. The administrative judge
     also determined that the appellant failed to establish her EEO reprisal claim.
     ID at 12-14.   The record reflects that the appellant filed her formal EEO
     complaint the same day that the agency issued the removal decision and the
     administrative judge found no evidence indicating that the deciding official knew
     of it when she issued her final decision letter. ID at 13. The administrative judge
     also noted the appellant’s failure to present any evidence, save for her own
     assertions, in support of her claim that the agency removed her in retaliation for
     her earlier informal EEO activity or for requesting reasonable accommodation.
     ID at 13-14.   Lastly, the administrative judge determined that the appellant’s
     removal was reasonable under the circumstances and promoted the efficiency of
     the service. ID at 14‑15.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶4        In her petition for review, the appellant argues that the evidence was
     insufficient to sustain the agency’s burden of proof regarding her medical
     inability to perform the essential elements of her position, to establish that she
     was not a qualified individual with a disability, or to show that the
     accommodations she requested would impose an undue hardship on the agency.
     Petition for Review (PFR) File, Tab 1 at 5.           She also argues that the
     administrative judge never determined which of her duties were essential. Id.
     at 6. She maintains that the record fails to show that her performance was less
     than satisfactory when she sought accommodation, contending that her “periodic
     medical inability to work after the agency began providing alternative
     accommodations was minimal” and that her absences were “[p]erhaps even less
     than other employees with routine illnesses such as the flu or other minor periodic
     illnesses.” Id. She also asserts that the administrative judge erred in analyzing
                                                                                       4

     her disability discrimination claim. Id. at 7. The agency responds in opposition.
     PFR File, Tab 3.
¶5        When, as here, the appellant does not occupy a position with medical
     standards or physical requirements or subject to medical evaluation programs, to
     establish a charge of physical inability to perform, an agency must prove a nexus
     between the employee’s medical condition and observed deficiencies in her
     performance or conduct or a high probability, given the nature of the work
     involved, that her condition may result in injury to herself or others.      Fox v.
     Department of the Army, 120 M.S.P.R. 529, ¶ 25 (2014). In determining whether
     the agency has met its burden, the Board will consider whether a reasonable
     accommodation exists that would enable the employee to safely and efficiently
     perform the core duties of the position. Id.
¶6        Under the circumstances presented here, we agree with the administrative
     judge that the agency proved its charge, showing the existence of a high
     probability that, given the nature of her work in a Federal building accessible to
     the public at large, the appellant’s condition may result in injury to herself.
     ID at 4-9. We also agree that the “appellant’s high level of vulnerability to scents
     and odors in her workplace” adequately supports the agency’s concerns regarding
     her ability to safely perform the essential functions of her position. ID at 7. As
     discussed below, the medical evidence supports the appellant’s written statement
     that such exposure resulted in “debilitating migraines, chronic sinusitis,
     dysphasia, immediate excessive pain, elevated blood pressure, elevated heart rate,
     blurred vision, vomiting, dehydration, and on numerous occasions visits to the
     emergency room.” ID at 8; RAF, Tab 6 at 56; see, e.g., Fox, 120 M.S.P.R. 529,
     ¶ 25. By contrast, the appellant’s assertion on review that her periodic inability
     to work was no worse than employees with routine illnesses like the flu,
     PFR File, Tab 1 at 6, is without support in the record and inconsistent with both
     the medical evidence and the appellant’s own assertions.
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¶7            The appellant’s long-time primary care physician wrote that her exposure to
     scented products and perfumes “triggers immediate headache, blurry vision, and
     sometimes loss in her voice,” as well as “elevated blood pressure and a change in
     her heart rate.” RAF, Tab 6 at 64. Her physician referred her to a pulmonologist
     who likewise noted the appellant’s history of migraines provoked by workplace
     exposure to “various chemicals and odors such as colognes, perfumes, lotions,
     and hairsprays.”      Id. at 60. The pulmonologist opined that, in the absence of
     either a scent-free environment or teleworking, the appellant “may have to apply
     for social security disability.”    Id. at 61.   Lastly, a doctor who reviewed the
     medical evidence at the agency’s request offered his opinion that the appellant
     required the requested accommodations because she was unable to perform her
     job when she experienced migraines due to exposure to strongly scented products.
     Id. at 55-56.       He further wrote that he was unaware of any alternative
     accommodations that would be effective under these circumstances. Id.
¶8            When that medical evidence is considered along with testimony that, as
     recounted in the initial decision, credibly indicated that the agency took
     reasonable but ultimately ineffective measures to limit the appellant’s exposure to
     scents and chemicals, and that the appellant nevertheless found it necessary to file
     numerous workers’ compensation claims during the first half of 2013, we agree
     with the administrative judge that the weight of the evidentiary record indicates
     that it is not safe for the appellant to work in the Federal building where her
     office     is   located.    ID   at 6-7;   see   Nanette   v.   Department   of   the
     Treasury, 92 M.S.P.R. 127, ¶ 45 (2002) (finding that, in light of the difficulty in
     preventing an accidental exposure to toxic substances and the dire consequences
     of such an occurrence, the appellant failed to demonstrate she could safely
     perform the essential functions of her position in an office environment).
¶9            As noted above, the administrative judge determined that the appellant
     failed to establish that the agency discriminated against her based on a failure to
     accommodate her disability. ID at 9-12. The administrative judge found that the
                                                                                                6

      appellant had an impairment that substantially limits at least one of her major life
      activities. ID at 10. Nevertheless, the administrative judge also found that the
      appellant failed to establish that she was a qualified individual with a disability,
      i.e., a person who, with or without accommodation, can perform the essential
      functions of her position. ID at 11-12. The appellant challenges this finding on
      review. PFR File, Tab 1 at 5.
¶10             An agency is required to make a reasonable accommodation to the known
      physical and mental limitations of an otherwise qualified individual with a
      disability unless the agency can show that accommodation would cause an undue
      hardship on its business operations.           29 C.F.R. § 1630.9(a); see Miller v.
      Department of the Army, 121 M.S.P.R. 189, ¶ 13 (2014).                         Reasonable
      accommodation includes modifications to the manner in which a position is
      customarily performed to enable a qualified individual with a disability to
      perform the essential job functions of the position. Miller, 121 M.S.P.R. 189,
      ¶ 13. 3     To establish disability discrimination, an employee must show that:
      (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g);
      (2) she is a qualified individual with a disability, as defined by 29 C.F.R.
      § 1630.2(m);       and    (3) the   agency     failed    to    provide     a    reasonable
      accommodation. Miller, 121 M.S.P.R. 189, ¶ 13.
¶11             When an appellant cannot show that she can perform the essential duties of
      her position with or without accommodation, the Rehabilitation Act does not
      require the agency to accommodate her medical condition. E.g., White v. U.S.


      3
        As a Federal employee, the appellant’s claim of disability discrimination arises under
      the Rehabilitation Act of 1973. However, the standards under the Americans with
      Disabilities Act (ADA) have been incorporated by reference into the Rehabilitation Act.
      29 U.S.C. § 791(g). Further, the ADA Amendments Act of 2008 (ADAAA), Pub. L.
      No. 110–325, 122 Stat. 3553 (codified at 42 U.S.C. §§ 12101 et seq.), applies to this
      appeal because the incidents in question occurred after the January 1, 2009 effective
      date of the ADAAA. Although the ADAAA changed the interpretation of the law
      regarding the existence of a disability, it did not affect the requirements of the law as to
      reasonable accommodation. See Miller, 121 M.S.P.R. 189, ¶ 13 n.3.
                                                                                           7

      Postal Service, 117 M.S.P.R. 244, ¶ 21 (2012); McFadden v. Department of
      Defense, 85 M.S.P.R. 18, ¶ 20 (1999); see Gonzalez-Acosta v. Department of
      Veterans Affairs, 113 M.S.P.R. 277, ¶ 13 (2010) (providing only limited or light
      duty tasks within an employee’s position that do not constitute a separate position
      is not a reasonable accommodation) (citing EEOC Enforcement Guidance:
      Reasonable Accommodation and Undue Hardship Under the Americans with
      Disabilities Act); Henry v. Department of Veterans Affairs, 100 M.S.P.R. 124,
      ¶¶ 10,13 (2005) (explaining that the Rehabilitation Act does not require an
      agency to restructure a job to eliminate its essential functions and finding that an
      agency is not required to create a new position for the appellant to provide a
      reasonable accommodation).
¶12         We agree with the administrative judge that the agency established that the
      only accommodations that the appellant identified in this matter, a scent-free
      environment or full-time telework, were not feasible under the circumstances.
      ID at 6-7.   The record reflects that, despite the agency’s good-faith efforts to
      provide a safe environment for the appellant to do her job, a scent-free work
      environment is simply not possible in a busy Federal office building like the one
      in which she works. ID at 6; see Nanette, 92 M.S.P.R. 127, ¶¶ 40-41 (assuming
      that the provision of a chemical‑free workspace is possible, given the degree of
      public interaction expected in a Federal office building, an accommodation
      request for an essentially scent-free environment is unreasonable on its face). We
      further concur with the administrative judge that the agency showed that the
      appellant’s job cannot be performed by telework. ID at 7. The record reflects
      that a significant portion of the appellant’s daily workload involves working with
      files containing personally identifiable information, which is protected by the
      Privacy Act, 5 U.S.C. § 552(a), and, as a result, cannot leave the office. ID at 7;
      RAF, Tab 6 at 50. Because the record reflects that these duties were a substantial
      portion of the appellant’s workload, the elimination of which would require
      significant restructuring of her position, this point not only illustrates that such an
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      accommodation would be an undue hardship on the agency, it also confirms the
      administrative judge’s finding that the appellant could not perform the essential
      duties of her position. ID at 11 & n.7. Moreover, the appellant does not dispute
      the administrative judge’s finding that the agency searched, but was unable to
      find, a vacant position to which she could be reassigned. ID at 7‑8.
¶13         Because the evidence therefore establishes that the appellant could not
      safely work in her office for the reason that the agency could not reasonably
      accommodate her medical need for a chemical and scent-free environment, and
      that neither telework nor transfer to another position was possible under the
      circumstances presented, we find that the administrative judge correctly
      determined that the agency established that the appellant was medically unable to
      perform the essential functions of her position and affirm the initial decision.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            You have the right to request further review of this final decision.

      Discrimination Claims: Administrative Review
            You may request review of this final decision on your discrimination
      claims by the Equal Employment Opportunity Commission (EEOC). See title 5
      of the U.S. Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit your
      request by regular U.S. mail, the address of the EEOC is:
                                Office of Federal Operations
                         Equal Employment Opportunity Commission
                                      P.O. Box 77960
                                 Washington, D.C. 20013

      If you submit your request via commercial delivery or by a method requiring a
      signature, it must be addressed to:
                                                                                 9

                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                131 M Street, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

        You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
        If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate U.S. district court.
See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
no later than 30 calendar days after your receipt of this order. If you have a
representative in this case, and your representative receives this order before you
do, then you must file with the district court no later than 30 calendar days after
receipt by your representative. If you choose to file, be very careful to file on
time.    If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court‑appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security.        See 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.




FOR THE BOARD:                           ______________________________
                                         Jennifer Everling
                                         Acting Clerk of the Board
Washington, D.C.
