LEROY J. PLETTEN, PETITIONER V. MERIT SYSTEMS PROTECTION BOARD No. 90-5961 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit Brief For Respondent In Opposition OPINIONS BELOW The opinions of the court of appeals, Pet. App. 1a-15a, and the district court, Pet. App. 17a, 20a, 22a-23a, are unreported. JURISDICTION The judgment of the court of appeals was entered on July 13, 1990. The petition for a writ of certiorari was filed on October 9, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner received proper administrative consideration of his claim that the Army violated Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. 791. 2. Whether the Army could reasonably accommodate petitioner's disability. STATEMENT Petitioner has a medical condition which requires a work environment completely free of tobacco smoke. The Army determined that it could not reasonably accommodate petitioner's condition because its regulation permits smoking in designated locations, petitioner's essential job functions required him to travel to all parts of the facility, and the ventilation system could not eliminate tobacco smoke. The Merit Systems Protection Board rejected petitioner's contention that the Army's determination violated Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. 791. The district court and court of appeals agreed. 1. Petitioner was a civilian employee of the United States Army's Tank Automotive Command (TACOM) in Warren, Michigan, when he was diagnosed in 1979 as suffering from acute asthma. Pet. App. 2a, 52a. After his physicians warned him that any exposure to tobacco smoke would cause asthma attacks, petitioner requested TACOM to provide him a smoke-free office with improved ventilation, and to prohibit other employees from smoking within 25 feet of him. Pet. App. 52a. The Army provided petitioner a smoke-free office, but that did not satisfy his medical needs. Petitioner's job -- a personnel position known as "position classification specialist" -- required him to travel over the entire TACOM compound. Because the compound's ventilation system could not eliminate all smoke, the Army could not provide petitioner with a work place completely free of tobacco smoke, as petitioner's physicians advised Army physicians he required. Appellant's Brief (6th Cir.), Exhibit C at 4. TACOM therefore determined that it could not accommodate petitioner's condition and placed him on leave without pay. Pet. App. 2a. 2. Petitioner appealed the adverse employment action to the Merit Systems Protection Board (MSPB) and to the Equal Employment Opportunity Commission (EEOC), invoking Section 501 of the Rehabilitation Act of 1973 (codified as amended at 29 U.S.C. 791). Section 501 requires the federal government to make reasonable accommodations to qualified handicapped persons that will allow them to perform the essential functions of their positions. "Qualified handicapped persons" are define by regulation to mean those persons "who, with or without reasonable accommodation, can perform the essential functions of the position in question * * *." 29 C.F.R. 1613.702(f). Reasonable accommodations include: "Making facilities readily * * * usable by handicapped persons," and "job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, * * * and other similar actions." 29 C.F.R. 1613.704(b). Unreasonable accommodations include those that would impose undue hardship on the operation of the government program. 29 C.F.R. 1613.704(a). The MSPB determined that petitioner was a handicapped employee within the meaning of the Rehabilitation Act, but ruled that the Army had made all reasonable efforts to accommodate his disability. Pletten v. Department of the Army, 6 MSPB 626 (6/18/81), Clerk's Record (C.R.) 70, No. 84-75360 (E.D. Mich.); MSPB Record, Vol. 37 at 3152-3158. Petitioner appealed that decision to the EEOC, which, on April 8, 1983, referred the case to the MSPB for reconsideration. C.R. 1; MSPB Record, Vol. 36 at 2401-2406. Meanwhile, the MSPB rejected another charge filed by petitioner which challenged his removal from employment and the Army's subsequent refusal to allow him to return to work. C.R. 35; MSPB Record, Vol. 2 at 525-537. On reconsideration, the MSPB consolidated petitioner's cases and issued a final decision in which it determined that petitioner was not able to work in the existing smoke conditions at TACOM; that the only accommodation that would permit petitioner to work at TACOM was a complete ban on smoking; and that such an accommodation was unreasonable. Pletten v. Department of the Army, 23 MSPB 679 (10/24/84), Appellant's C.A. Br., Exh. I. Based upon review of the medical evidence, depositions of three witnesses, and a description of petitioner's job requirements, the MSPB found that petitioner's medical evidence (consisting of letters from his two physicians) showed that petitioner required an entirely smoke-free work environment. Ibid. Finding that petitioner's job required that he work at many locations throughout the TACOM facility, the MSPB concluded that TACOM could not reasonably accommodate petitioner's condition, because the then-prevailing smoking regulation authorized smoking in corridors, lobbies, restrooms, and private offices. Ibid. 3. On November 23, 1984, petitioner sought review of the MSPB's decision in federal district court and the Federal Circuit. Because exclusive jurisdiction of MSPB matters involving alleged discrimination lies in federal district court, 5 U.S.C. 7703(b)(2), the Federal Circuit transferred the appeal before it to the district court, which dismissed the duplicative action. C.A. J. App. 78. In the remaining action, the district court granted summary judgment in favor of the Army. Pet. App. 21a-22a, 29a-31a. It observed that undisputed evidence showed that petitioner required a completely smoke free environment. It also found that smoking was permitted freely throughout the TACOM compound during the period in question. Pet. App. 30a. Although the TACOM smoking policy had been recently changed to restrict the areas in which smoking was permitted, the court found that the new policy did not "provide a totally smoke-free environment sufficient for a person with a health problem prohibiting any smoke particulate. This is for able-bodied people who do not wish to be exposed to tobacco smoke and only limits the smoking areas to those designated by each supervisor * * *." Pet. App. 30a-31a. In light of the undisputed evidence that petitioner was not willing to work in another job that might reduce his exposure to smoke, Pet. App. 30a, the district court concluded that TACOM could not reasonably accommodate petitioner's disability. Pet. App. 31a. Accordingly, it granted summary judgment for the Army. Ibid. While petitioner's district court and Federal Circuit actions were pending, petitioner filed numerous charges with the EEOC -- all of which charged discrimination based on disability or retaliation for having filed previous EEOC charges. After the district court entered judgment in favor of the government in the MSPB litigation, the EEOC consolidated petitioner's 78 pending charges against the Army and dismissed them on the basis of res judicata. C.R. 1, No. 88-72254 (E.D. Mich.). Petitioner appealed the EEOC's decision by filing a complaint in the district court, which, in an unpublished order, granted the Army's motion to dismiss the action on the basis of res judicata. Pet. App. 17a-19a. Petitioner appealed the district court's decisions in favor of the MSPB and the EEOC to the Sixth Circuit. 4. The Sixth Circuit consolidated the appeals and affirmed both decisions in an unpublished order. Pet. App. 1a-15a. It found no dispute surrounding the determination that petitioner's asthma-induced inability to tolerate tobacco smoke constituted a disability within the meaning of the Rehabilitation Act. Pet. App. 6a. The court likewise determined that it was undisputed that TACOM could not reasonably provide the smoke-free work place that petitioner required. Pet. App. 8a. The court rejected petitioner's argument that the case should have been transferred to the Federal Circuit, Pet. App. 10a, and declined to consider whether the district court had erred in dismissing the Secretary of the Army as a defendant because petitioner had not appealed that ruling, Pet. App. 11a-13a. Finally, the court affirmed the dismissal of petitioner's complaint challenging the EEOC's decision on the ground that the claims of disability discrimination and retaliation were barred by the district court's previous decision affirming the MSPB's resolution of those claims. Pet. App. 13a-15a. ARGUMENT Although the tapestry of the petition is woven of many threads, petitioner finds essentially two errors in the court of appeals' disposition of his claims: (1) he was denied proper administrative consideration of his claims; and (2) he is a "qualified handicapped person" -- that is, he would be able to perform his job notwithstanding his inability to tolerate tobacco smoke if TACOM would make reasonable efforts to accommodate his disability. The unpublished decision of the court of appeals is correct and does not conflict with any decision of this Court or of any other court. Further review is not warranted on either of petitioner's claims. 1. The record belies petitioner's assertion, Pet. 1-2 & n.1, that he has been deprived of administrative review. Petitioner has had repeated review of his claims from -- among other tribunals -- the EEOC, the MSPB, the district court, and the court of appeals. His assertion that the courts below failed to heed a February 1982 EEOC order requiring the Army to reconsider his claims, Pet. App. 51a-66a, overlooks the fact that, after the EEOC issued the decision on which he relies, both the EEOC and the MSPB again considered his claims of handicap discrimination and retaliation, and the courts reviewed those final decisions. Thus, he has receved the very review to which he claims to be entitled. For the first time in this Court, petitioner asserts that he is the victim of race and sex discrimination, Pet. 38, and that he is entitled to administrative consideration of those claims as well. The allegations of race and sex discrimination, however, were not presented to or ruled upon by the administrative agencies, the district court, or the court of appeals. Under settled practice, they should not be considered in the first instance by this Court. See Delta Airlines v. August, 450 U.S. 346, 362 (1981); United States v. Lovasco, 431 U.S. 783, 788 n.7 (1977); United States v. Mendenhall, 446 U.S. 544, 551-552 n.5 (1980). 2. The court of appeals correctly concluded that TACOM did not discriminate against petitioner on the basis of his disability. Both parties agreed in the lower courts that petitioner's asthma rendered him a handicapped person within the meaning of the Rehabilitation Act. /*/ Pet. App. 6a. Both the district court and the court of appeals determined that the undisputed medical evidence (which was provided by petitioner's physicians) showed that petitioner could work only in an entirely smoke-free environment and that, because his job required him to travel to all parts of the TACOM facility, the only accommodation that would enable petitioner to perform his job was a complete ban on smoking at the facility. Pet. App. 8a, 29a-31a. The MSPB and both courts concluded that such an accommodation was not reasonable because it accorded no consideration to TACOM employees who smoke. This ruling was a reasonable interpretation of the scope of the duty of reasonable accommodation imposed by the Rehabilitation Act. See Vickers v. Veterans Administration, 549 F. Supp. 85, 87-89 (W.D. Wash. 1982) (rejecting suggestion that reasonable accommodation of hypersensitivity of an employee to tobacco smoke required complete ban on smoking in absence of statute or official policy prohibiting smoking). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General STUART M. GERSON Assistant Attorney General MARLEIGH D. DOVER CATHERINE L. FISK Attorneys DECEMBER 1990 /*/ Apparently reversing field in this Court, petitioner at times argues that he is not handicapped. Pet. 28. Given that petitioner seeks further administrative review of his claim of handicap discrimination, Pet. 63, it is unclear whether he has really abandoned his claim that he is a handicapped person entitled to reasonable accommodation.