01a45833_r
12-28-2005
Cathy M. Nale, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Cathy M. Nale v. Department of Veterans Affairs
01A45833
December 28, 2005
.
Cathy M. Nale,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A45833
Agency No. 200L-0635-2003100819
DECISION
Complainant appeals to the Commission from the agency's July 26, 2004
decision finding no discrimination. Complainant alleges discrimination
on the bases of race (White), sex (female), disability (latex allergy),
and reprisal when: (1) she was reassigned from the Medicine Specialty
Clinic to the Urology Clinic effective November 19, 2002; and (2)
she was denied a reasonable accommodation after November 19, 2002.
After an investigation, the agency issued a decision finding that
complainant failed to establish a prima facie case of discrimination.
The agency further found that assuming complainant presented a prima
facie case, the agency articulated a legitimate, nondiscriminatory
reason for its actions with complainant failed to adequately rebut.
With regard to complainant's claim that she was denied a reasonable
accommodation, the agency found that complainant was not an individual
with a disability under the Rehabilitation Act. The agency further
found that assuming complainant was an individual with a disability,
complainant's work functions did not violate any medical restrictions.
Complainant now appeals the agency's July 26, 2004 decision.
With regard to claim 1, complainant argues she was discriminated against
when she was reassigned from the Medicine Specialty Clinic to the
Urology Clinic effective November 19, 2002. The record indicates that
complainant was working as a nurse in the Medicine Specialty Clinic for
over eight years when another nurse, Ms. X, began complaining about her.
The record indicates that Ms. X informed complainant that she did not
like her because complainant reminds Ms. X of Ms. X's mother, who Ms. X
does not like. Specifically, Ms. X told complainant: �You remind me
of my mother, and I hate my mother.� Thus, the working relationship
with Ms. X and complainant was acrimonious. As a result, complainant
filed a union grievance. By settlement agreement dated November 2,
2002, the parties resolved complainant's grievance. In the November
2, 2002 settlement agreement, complainant �[r]equest[ed] reassignment
to the Urology Clinic, VA Hospital, OKC.� The agency, as part of
the agreement, agreed to �[g]rant the reques[t] for reassignment.�
Complainant now argues that the very reassignment which she requested was
discriminatory once granted. We find the agency presented a legitimate,
nondiscriminatory reason for the reassignment which complainant failed
to adequately rebut. Complainant failed to show, by a preponderance of
the evidence, that she was discriminated against on the bases of race,
sex, disability or reprisal. We make this determination without making
a finding as to whether complainant is an individual with a disability
under the Rehabilitation Act.
With regard to claim 2, complainant argues that she was denied a
reasonable accommodation once she was reassigned to the Urology Clinic.
Complainant believes that the agency should have known, when executing
the settlement agreement, that complainant suffered from latex allergies
and that the Urology Clinic would not be appropriate. Specifically,
complainant alleges that the agency should have known about her latex
allergy because she had an anaphylactic reaction in the same hospital
in 1994. Although complainant argues the agency should have known of
her allergy during the settlement agreement, complainant admits she
forgot herself about the allergy. Complainant on appeal asserts that
her �allergy to latex had not been an issue for several years, so, [she]
quite frankly did not think of it during the mediation.� After signing
the settlement agreement, complainant was moved to the Urology Clinic.
Once at the Urology Clinic, complainant stated that she notified her
supervisor that she would not be able to work in �operating room[s],
recovery room[s], an open ER, minor surgery area[s], those types of
settings.� Complainant stated that after telling her supervisor of
the allergy, the supervisor, in an effort to keep her in a latex free
environment, put complainant on the floor assigned to changing beds,
giving bed baths, changing diapers, working on geriatric floor, wiping
bottoms and feeding patients. Complainant testified that she did those
duties for months and then requested to be trained on electronic charting,
which was granted. After training, complainant worked as a nursing
assistant for months. Complainant stated that the job was embarrassing
and she felt that she could be better utilized.
The gravamen of complainant's complaint appears to revolve around
her desire to return to the Medicine Specialty Clinic, despite having
executed a settlement agreement to the contrary. When asked about the
agency's response to complainant's request for a reasonable accommodation,
complainant stated as follows (emphasis added):
Out on the floor you're not in one big area, every patient has their own
room, or there's two patients to a room, so I can take care of those
patients as long as there aren't other people in there using gloves.
But I don't feel like they are accommodating me when I have come from an
area that I had a clinical job, and I have been doing this for 20-some
years, and I got to the point where I was working a clinical job which
it's not a back-backing [sic] job, let me just say that, we're busy, but
it's not real strenuous. It's like stepping up after all these years,
seniority type of thing.
I don't think putting me out on the floors is accommodating. It may be
as far as my allergy, but I don't think that taking me from an area that
I have worked so hard to get to all those years and putting me back down
to an area where you start new graduates at, I don't feel that that's
very accommodating, where there are other places in this facility they
could send me. I'm not trying to be picky, but there are other options.
Complainant then stated that she was forced to work in the ER occasionally
in violation of her medical restrictions. Complainant's supervisor,
however, stated that she instructed complainant not to work in the ER,
but would find complainant there nonetheless. Although complainant
indicates that there are other places in the facility where she could
work, complainant did not indicate where those places are, other than
the Medicine Specialty Clinic. In the alternative, it appears that
complainant would like to go back to the Urology Clinic and work by
herself. However, the agency asserts that the Urology Clinic needs
another nurse to perform procedures involving several health care
providers. The agency argues that allowing complainant to work in
the Urology Clinic would dictate what health care the Urology Clinic
could provide. Complainant at one point simply says, in response to
the question of the remedy she is seeking, is that she �just want[s]
to work in peace.� Complainant, in response to that question from
the investigator, does not state that she wants to work in a different
location. Although complainant states that she wishes to �be out from
underneath [the] nursing service,� she does not indicate that this remedy
is in any way related to her purported disability and she does not claim
that such a position outside of nursing would somehow accommodate her
purported disability.
First, we note that complainant's statements are inconsistent as to
whether she was forced to work outside of her medical restrictions.
Complainant indicated at one point that she is not actually working
outside of her medical restrictions. We find that complainant has
not shown, by a preponderance of the evidence, that she was forced
to work outside of her medical restrictions. Therefore, we find
that complainant has failed to show that she was denied a reasonable
accommodation. We make this determination without making a finding
as to whether complainant is an individual with a disability under the
Rehabilitation Act.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
December 28, 2005
__________________
Date