0120100495
01-04-2012
Gailey Brown-Jones, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Gailey Brown-Jones,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120100495
Hearing No. 430-2007-00241X
Agency No. 2004-0590-2006100964
DECISION
On November 5, 2009, Complainant filed an appeal from the Agency’s
October 14, 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. The Commission accepts the appeal pursuant to
29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final order.
ISSUE PRESENTED
The issue presented is whether substantial evidence in the record
supports the EEOC Administrative Judge’s decision that the Agency
provided Complainant with a reasonable accommodation.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Registered Nurse (Nurse II) in the Spinal Cord Injury (SCI) Service
at the Agency’s Medical Center in Hampton, Virginia. Nurses in SCI
often had to lift and reposition patients with and without assistive
devices. On March 1, 2006, Complainant filed an EEO complaint alleging
that the Agency discriminated against her on the basis of disability
(back injury) when:1
1. For the November 2, 2004 to November 2, 2005 appraisal period,
she received a “Satisfactory” performance rating;
2. On December 1, 2005, she received an untimely response from a summary
review board held on August 31, 2005;
3. From January 4-26, 2006, management harassed her when:
a. She was required to use annual leave, sick leave, and leave
without pay (LWOP) to make repeated visits to her physician to obtain
work slips;
b. On January 5, 2006, she was informed that she would be required
to sign an Alternative Duty (Light Duty) work assignment offer and must
use LWOP if she could not push a computerized medication cart while on
light duty;
c. On January 9, 2006, she signed the Alternative Duty (Light Duty)
work assignment offer under duress;
d. On January 25, 2006, she was asked to leave the unit while
attempting to locate her W-2 forms; and
e. At unidentified times, her work assignments were changed to require
her to work weekends and shift rotation while on light duty.
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. The AJ held a hearing on October 9, 2008
and issued a decision on September 30, 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.
Regarding Complainant’s medical condition and medical restrictions,
the AJ found the following facts: Complainant suffered an on-the-job
back injury. According to a January 4, 2006 Back to Work Authorization
form from her physician, Complainant’s medical restrictions included a
20 pound lifting restriction and no bending or stooping. According to
a January 6, 2006 Work Restriction Evaluation form from her physician,
Complainant’s medical restrictions included a 10 to 20 pound lifting
restriction and no bending, squatting, climbing, kneeling, or twisting.
Complainant did not have any medical restrictions involving pushing
and pulling.
Regarding Complainant’s request for reasonable accommodation, the AJ
found the following facts: On January 4, 2006, Complainant submitted a
written request for an accommodation. Complainant, however, left blank
the parts of the form pertaining to the nature of her disability, the
accommodation requested, and the reason for the request. On January 6,
2006, management offered Complainant an Alternative Duty work assignment
which required her to dispense medication to patients from a computerized
medication cart. Complainant informed management that she could not push
the cart because of her back injury. Management then told Complainant
that she could dispense medication to patients from the nurses’ station.
Complainant, however, refused and told management that the union had
advised nurses not to do that. Management then told Complainant that she
would have to take leave if she could not push the cart. On January 9,
2006, Complainant signed the Alternative Duty work assignment offer with
the comment “under duress.” From January 6-20, 2006, Complainant
took annual leave. During this period, the Health Work Life Committee
reviewed Complainant’s medical documentation. On January 24, 2006,
the Agency temporarily reassigned Complainant to a vacant Registered
Nurse (Nurse II) position in the Domiciliary Clinic where her primary
duty included taking patients’ vital signs. Effective April 2, 2006,
Complainant’s reassignment became permanent.
In her decision, the AJ analyzed Complainant’s complaint under three
theories of discrimination: (a) failure to accommodate; (b) disparate
treatment; and (c) harassment. Initially, the AJ found that Complainant
was a qualified individual with a disability. Next, the AJ found that the
Agency accommodated Complainant when it: (i) restructured her position
to entail dispensing medication from a computerized medication cart;
(ii) authorized Complainant to dispense medication from the nurses’
station when she challenged her ability to push the cart; (iii) allowed
Complainant to take annual leave when she refused to push the cart or
dispense medication from the nurses’ station; and (iv) reassigned
Complainant to a Registered Nurse (Nurse II) position in the Domiciliary
Clinic.
Further, the AJ found that Complainant failed to show that the legitimate,
nondiscriminatory reasons articulated by the Agency in claims 1 and 2 were
a pretext for disability discrimination. Regarding claim 1, the AJ found
that Complainant’s performance met and sometimes exceeded standards
for a Nurse II in SCI, but was not above and beyond the standards.
Regarding claim 2, the AJ found that the Patient Advocate’s office had
received two patient complaints about Complainant and that the normal
protocol for such complaints required the Agency to conduct a summary
review of the employee’s performance.
Finally, the AJ found that Complainant failed to establish a claim of
harassment encompassing claims 1- 3. Specifically, the AJ found that
Complainant did not show that the Agency’s actions were based on her
disability. Regarding claims 1 and 2, the AJ referenced her earlier
findings. Regarding claims 3 (a) - (c) and 3(e), the AJ found that that
these incidents were examples of the Agency’s justified participation
in the interactive process in order to accommodate Complainant within her
medical restrictions. Regarding claim 3(d), the AJ found that management
asked Complainant to leave the floor because her presence caused a crowd
to gather around and interfered with patient care.
CONTENTIONS ON APPEAL
On appeal, Complainant, through her attorney, argued that the Agency
denied her a reasonable accommodation when it forced her to take leave
from January 6-20, 2006 because of her medical condition.2 Specifically,
Complainant asserted that the Agency had alternatives to the forced
leave, but chose not to consider those alternatives. In support of her
argument, Complainant cited Parks v. U.S. Postal Service, EEOC Petition
No. 0320070127 (July 28, 2008).
ANALYSIS AND FINDINGS
Standard of Review
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. Nat’l Labor Relations Bd.,
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 EEO MD-110, at Ch. 9, § VI.B.
Reasonable Accommodation
Under the Commission’s regulations, federal agencies are required
to make reasonable accommodation for the known physical and mental
limitations of qualified individuals with disabilities, unless an agency
can show that reasonable accommodation would cause an undue hardship.
See 29 C.F.R. §§ 1630.2(o) and (p); see Appendix. For purposes of
analysis only, we assume, arguendo, without so finding, that Complainant
is an individual with a disability entitled to coverage under the
Rehabilitation Act.
Upon review of the record, we find that substantial evidence in the
record supports the AJ’s finding that the Agency provided Complainant
with a reasonable accommodation when, effective January 24, 2006,
she was reassigned to a Nurse II position in the Domiciliary Clinic.
In so finding, we rely on Complainant’s testimony that her reassigned
position was within her medical restrictions. Hr’g Tr., at 38.
It is the Commission’s position that if more than one accommodation
is effective, the preference of the individual with a disability should
be given primary consideration; however, the employer providing the
accommodation has the ultimate discretion to choose between effective
accommodations. See EEOC Enforcement Guidance on Reasonable Accommodation
and Undue Hardship under the Americans with Disabilities Act, No. 915.002,
Question 9 (as revised Oct. 17, 2002).
On appeal, citing Parks v. U.S. Postal Service, EEOC Petition
No. 0320070127 (July 28, 2008), Complainant argued that the Agency denied
her a reasonable accommodation when it forced her to take leave from
January 6 - 20, 2006 instead of considering alternatives. We find that
the instant case is distinguishable from Parks. In Parks, the Commission
found that the agency failed to accommodate the petitioner when it did
not allow him to return to work within his medical restrictions, placed
him on enforced leave for over three months, and then reassigned him to
a lower-graded position. In addition, the Commission noted that, both
prior to and during his placement on enforced leave, the petitioner had
identified (and the Agency was aware of) vacant positions to which he
could have been reassigned. In contrast, the record in the instant case
reflects that the Agency offered Complainant two modified assignments
within her medical restrictions (both of which she turned down),
authorized her to take leave for two weeks while it reviewed her medical
documentation and attempted to resolve the matter, and then reassigned
her to a position at the same grade level. Moreover, there is no evidence
that, prior to the January 6 - 20, 2006 leave, Complainant identified or
the Agency was aware of any vacant positions to which she could have been
reassigned. Although Complainant referred generally to “alternatives”
to the leave, she did not specify what those alternatives were. Finally,
we emphasize that the Agency reassigned Complainant effective January
24, 2006, less than three weeks after her January 4, 2006 request for
a reasonable accommodation. Accordingly, we agree with the AJ that the
Agency provided Complainant with a reasonable accommodation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s final order.
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
__1/4/12________________
Date
1 Although not explicitly one of the accepted claims, Complainant’s
complaint also alleged that the Agency denied her a reasonable
accommodation.
2 On appeal, Complainant did not specifically address her remaining
claims but only stated that she “reserves all other issues raised
in this case and requests they be reviewed although not specifically
addressed.” Regarding her remaining claims, the Commission exercises
its discretion to review only the issues specifically raised on appeal.
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), at Ch. 9, § IV.A. (Nov. 9, 1999).
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0120100495
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100495