0120101310
07-27-2010
Christina W. Garland, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, (Indian Health Service) Agency.
Christina W. Garland,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
(Indian Health Service)
Agency.
Appeal No. 0120101310
Hearing No. 560-2008-00227X
Agency No. HHS-HIS-074-06
DECISION
On February 17, 2010, Complainant filed an appeal from the Agency's
December 18, 2009, final order concerning her equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems
the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the Agency's final
order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Staff Nurse, GS 9/5, at the Agency's Claremore Indian Hospital
facility in Claremore, OK. On August 30, 2006, Complainant filed an
EEO complaint alleging that the Agency discriminated against her on
the bases of disability (previous spinal surgery, lifting restrictions)
and age (62) when:
1. From April 24, 2006 to May 2, 2006 Complainant was denied a reasonable
accommodation; and,
2. On or about May 31, 2006 Complainant was constructively discharged
when she was forced to apply for disability retirement.
Complainant underwent two spinal surgeries in 2005. In early 2006,
Complainant provided the Agency with a statement from her physician
limiting Complainant to paperwork-only duties for a brief period.
Complainant provided a second statement to the same effect approximately
one month later; this statement was effective through March 1, 2006, and
cleared Complainant for "full time, no restrictions" after that date.
At some point, Complainant returned to regular nursing duty. On April
19, 2006 Complainant requested that she be exempt from rotations; these
rotations were implemented so nurses in the facility would be trained in
different areas. Complainant asked to be moved to Pediatric Dentistry,
a position which apparently involved lighter duties. Complainant's
supervisor testified that in order to accommodate Complainant's
request, another nurse would have to be pulled from rotations to cover
Complainant's position. Complainant requested the accommodation because
she stated she could not lift heavy legs and put them in stirrups, but
could work with children in the pediatric dental area. Complainant's
supervisor denied the request, but informed Complainant that, should
she need help with heavy lifting, assistance would be available.
Complainant testified that assistance was indeed provided, as a scrub
technician helped Complainant with the lifting.
The Agency ordered Complainant to provide medical documentation to
clarify the extent of her workplace limitations. Complainant provided
two statements from her physician; the first statement informed the
Agency that a search of Complainant's records was underway, while the
second limited Complainant to lifting no more than 30 pounds. On May 2,
2006, Complainant was sent home for failing to comply with the Agency's
requests to provide medical documentation. On June 5, 2006, Complainant
provided the Agency with a third physician statement; the statement
limited Complainant to sedentary work with a lifting restriction of no
more than 15 pounds. At this point, the Agency concluded that Complainant
was unable to perform the essential functions of her position. The Agency
informed Complainant of two non-nursing positions in the facility.
Complainant responded that she was not interested in another position.
On June 9, 2006 Complainant applied for disability retirement.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing and the AJ held a hearing on November 12,
2009, and issued a decision on December 7, 2009. The Agency subsequently
issued a final order adopting the AJ's finding that Complainant failed
to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant maintains that she was denied a reasonable accommodation, and
insists that paperwork-only positions were available for nurses in the
Claremore facility. Additionally, Complainant continues to insist that
the conditions in the Claremore facility were intolerable and hostile.
The Agency did not submit any briefs in support of its argument.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ 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). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9,
1999).
Denial of Reasonable Accommodation
Under the Commission's regulations, an Agency is required to make
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. 29 C.F.R. �
1630.9. For the purposes of analysis, we assume Complainant is an
individual with a disability. 29 C.F.R. � 1630.2(g)(1).
Complainant must show that she is a "qualified" individual with a
disability within the meaning of 29 C.F.R. � 1630.2(m). We note that the
discussion of "qualified" does not end at Complainant's position. The term
"qualified individual with a disability," with respect to employment,
is defined as a disabled person who, with or without a reasonable
accommodation, can perform the essential functions of the position held
or desired. 29 C.F.R. � 1630.2(m). The term "position" is not limited
to the position held by the employee, but also includes positions that
the employee could have held as a result of reassignment. Therefore,
in determining whether an employee is "qualified," an agency must look
beyond the position which the employee presently encumbers. Accordingly,
an agency should consider reassignment. EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship Under the Americans With
Disabilities Act (Enforcement Guidance - Reasonable Accommodation),
No. 915.002 (revised October 17, 2002); see also Interpretive Guidance
on Title I of the Americans With Disabilities Act, Appendix, to 29
C.F.R. Part 1630.2(o).
Upon review of the record, we find that Complainant could not perform
the essential functions of Staff Nurse. The Clinical Nurse position
description explicitly states that the job entails "considerable walking
in moving from bed to bed, bending and lifting, often in excess of 50
pounds, when helping patients in and out of bed and positioning patients
in bed." Complainant's supervisor testified to the same effect, viz.,
that nurses in the Agency are required to "lift and transport patients"
and lift up to 50 pounds. Though Complainant's physician provided a
statement limiting Complainant to 30 pounds at one point, the Commission
finds that this limitation was provisional. The 30 pound restriction was
merely temporary; the limitation was ordered while Complainant's physician
went about compiling the medical documentation requested by the Agency.
Once this was accomplished, the physician put Complainant on a 15 pound
weight restriction. Complainant's April 21 request for reassignment to
Pediatric Dentistry was not, therefore, a reasonable accommodation that
would allow Complainant to otherwise perform the essential functions
of Staff Nurse. Further, the Agency made Complainant aware of other
non-nursing positions within the facility once it became clear that
Complainant could not perform the essential functions of her position;
however, Complainant did not consider moving into either position.1
Thus, the Commission finds that the Agency did not deny Complainant a
reasonable accommodation which would have allowed Complainant to perform
the essential functions of Staff Nurse. The Commission also agrees with
the AJ's conclusion that Complainant failed to prove a prima facie case
of age discrimination.
Constructive Discharge
A discriminatory constructive discharge occurs when the employer,
motivated by discriminatory animus, creates working conditions that are
so difficult, unpleasant, or intolerable that a reasonable person in
complainant's position would feel compelled to resign. Doe v. Social
Security Admin., EEOC Appeal No. 01A114791 (Feb. 21, 2003). In other
words, the employee is essentially forced to resign under circumstances
where the resignation is tantamount to the employer's termination or
discharge of the employee. Kimzey v. Wal-Mart Stores, Inc., 107 F.3d
568, 574 (8th Cir. 1997). The Commission has adopted a three-pronged
test for establishing a constructive discharge. Complainant must
show that:(1) a reasonable person in his position would have found the
working conditions intolerable; (2) conduct which constituted prohibited
discriminatory treatment created the intolerable working conditions; and
(3) complainant's involuntary resignation resulted from the intolerable
working conditions. Greer v. United States Postal Service, EEOC Appeal
Nos. 01976756, 01976792 (Dec. 29, 2000) (citing Taylor v. Department of
Defense, EEOC Request No. 05900630 (July 20, 1990)).
In this case, we find that even assuming that Complainant's version of
events is accurate, no reasonable fact-finder could conclude that the
alleged actions created intolerable working conditions or constituted
unlawful disability or age discrimination. The Agency requests for
additional medical documentation were reasonable and appropriate.
The Agency had a duty to discover the full extent of Complainant's
limitations, given the nature of the Agency's work. The record clearly
supports the notion that Complainant's supervisors were interested
in protecting the health and welfare both of Complainant and of the
facility's patients. The Commission does not find that working conditions
at the Agency were so intolerable that a reasonable person would have
been compelled to retire.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. 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 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 27, 2010
__________________
Date
1 The Commission notes that it was improper for the Agency to insist that
Complainant apply for these positions; however, because Complainant did
not wish to be considered for either position, the Commission views this
as a harmless error.
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0120101310
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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