At the time of events giving rise to this complaint, complainant worked as a Tractor Trailer Operator at the agency's San Francisco Processing & Distribution Center facility in San Francisco, California.

Complainant contacted an EEO Counselor and filed a formal EEO complaint on July 25, 2001, alleging that he was discriminated against on the bases of disability and in reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when, continuing since March 2000, management did not accommodate his disability when it failed to provide him with a smoke free tractor trailer designated for his use. The record reveals complainant began experiencing breathing problems in 1998, and stopped working, citing total disability in April 2001, as recommended by his physician and psychologist.

The agency issued a final order not implementing the AJ's first decision, and filed an appeal with the Office of Federal Operations. Therein, the Office of Federal Operations vacated the AJ's decision and remanded the matter for a hearing on whether: (1) complainant's physical impairments substantially limited a major life activity; and (2) whether complainant was provided with a smoke free truck.

Pursuant to the order, the AJ held a hearing on August 25, 2004, and issued a decision on September 30, 2005. In her decision, the AJ found complainant was substantially limited in the major life activity of breathing, and an individual with a disability under the Rehabilitation Act.  The AJ further found that complainant was a qualified individual with a disability because there was no argument or evidence that complainant lacked the requisite skills, training and experience to perform the essential job functions of a Tractor Trailer Operator.

The AJ found no dispute in the record that complainant asked for an accommodation of his disability numerous times. In fact, the record revealed the agency and complainant agreed in 1999, to provide complainant with a designated smoke free truck and to explore other filtering system options.  However, the AJ found that agency officials failed to ensure that this agreement was adhered to. The AJ found that soon after he was assigned to the smoke free truck in early 2000, complainant regularly complained to his supervisors that people were smoking in his truck. Complainant suffered from headaches, breathing problems, nausea, vomiting, and an inability to sleep. Finding no assistance from management, complainant became emotionally distraught, and by the start of 2001, obsessed about the notion that others smoked in his truck to the point that he slept at work in order to watch the truck.

The AJ found that the preponderance of the evidence revealed that the agency failed to provide complainant with a smoke free truck. The agency's logs revealed the names of those who smoked and were assigned to the truck, and at the hearing, testimony of seven witnesses revealed the agency did not provide complainant with a smoke free truck. The AJ also found that the relevant management officials were not credible, and did little or nothing to. investigate complainant's complaints to ensure compliance with the agreement to provide him with a smoke free truck, or to explore the option of a filtering system. As such, the AJ found the agency failed to provide complainant with a reasonable accommodation.

As for complainant's claim of retaliation, the AJ found that complainant engaged in protected activity in 1999, when he first filed a formal complaint, and repeatedly thereafter when he requested reasonable accommodation, Furthermore, the AJ found the requisite causal connection between his prior EEO activity, and the agency's failure to provide an accommodation, such that an inference of retaliation was established.

The AJ found the agency's reasons for its actions were not credible, or in some cases, not even articulated. In that regard, the AJ found that agency officials contradicted themselves when they claimed that they provided the smoke free truck, and that providing the truck was not feasible. The AJ found the shifting reasons for its failure to provide a filtering system or smoke free truck were pretext for retaliation.

As relief, the AJ ordered that the agency pay complainant back pay (including overtime and night differential) from April 2001, when he stopped working for the agency, until the time the decision was implemented. The AJ also ordered that the agency pay complainant front pay. The AJ awarded complainant $95,000.00 in non-pecuniary compensatory damages, as well as past and future pecuniary damages for his psychological treatment. Finally, the AJ awarded complainant attorney's fees and costs.

Based upon the evidence of record, we find that complainant has shown that he is substantially limited in the major life activity of breathing and, therefore, is an individual with a disability covered under the Rehabilitation Act.

The agency did not dispute the AJ's finding that complainant was denied an accommodation. Accordingly, we find no reason to address that issue in the decision, and agree that there is substantial evidence in the record to support the AJ's finding that complainant was denied an accommodation when he was not provided with a smoke free truck.

BACK PAY

The agency shall calculate back pay with appropriate offsets to account for workers' compensation payments and any interim earnings, in accordance with our order below. Accordingly, we find complainant is entitled to back pay due to the agency's failure to accommodate from the date of the discrimination up until the date this decision becomes final.

FRONT PAY

In light of the above, we agree with the AJ's findings that front pay is the appropriate remedy in this case. The record reveals there is a history of an antagonistic relationship between the parties stemming from complainant's attempts to be accommodated and the agency's resistance to those efforts. In addition, we note that complainant worked in a vocational rehabilitation position, and therefore is available for work. Accordingly, we find that front pay is the appropriate remedy in this case. In its appeal, the agency argues that reinstatement is the preferred remedy. However, at the same time, it contends that it cannot accommodate complainant. Regardless of the inherently contradictory and inconsistent position the agency has taken regarding reinstatement, the record is more than sufficient to support the AJ's award of front pay.